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Brown v. EMSA 
Pet. Docket No. 391, September Term, 2000
 
COURT OF APPEALS OF MARYLAND
 
362 Md. 34; 762 A.2d 968; 2000 Md. LEXIS 780

 December  8, 2000, Decided

NOTICE: 

  [*1]  DECISION WITHOUT PUBLISHED OPINION 

PRIOR HISTORY:  (No. C-1999-57080CP, Circuit Court for  Anne Arundel  County).

OPINION: Petition for Writ of Certiorari denied. 

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. DUSHAN S.ZDRAVKOVICH 
Misc. Docket (Subtitle AG), No. 8, September Term, 1999
 
COURT OF APPEALS OF MARYLAND
 
362 Md. 1; 762 A.2d 950; 2000 Md. LEXIS 763

 December  4, 2000, Filed

   PRIOR HISTORY: [***1] Circuit Court for  Anne Arundel  County.  Case #C-1999-53903.OC. Pamela L. North, JUDGE.

DISPOSITION: IT IS SO ORDERED; RESPONDENT SHALL PAY ALL COSTS AS TAXED BY THE CLERK OF THIS COURT; INCLUDING THE COSTS OF ALL TRANSCRIPTS, PURSUANT TO MARYLAND RULE 16-715(c), FOR WHICH SUM JUDGMENT IS ENTERED IN FAVOR OF THE ATTORNEY GRIEVANCE COMMISSION OF MARYLAND AGAINST DUSHAN S. ZDRAVKOVICH; RESPONDENT'S SUSPENSION SHALL COMMENCE THIRTY DAYS FROM THE FILING OF THIS OPINION. 
CASE SUMMARY 

PROCEDURAL POSTURE:  Petitioner sought to indefinitely suspend respondent from the practice of law. The matter was assigned to the Circuit Court for Anne Arundel County (Maryland) for hearing.

OVERVIEW:  Respondent undertook to represent a client in various actions regarding a former employer. He failed to respond to motions, communicate with his client, and attempted to remove a matter filed in Texas state court to Maryland federal court, for which he was disciplined under Fed. R. Civ. P. 11. He failed to keep adequate billing records and billed his client for more time than it was likely he spent working on his client's case. Respondent had previously received an unpublished reprimand as the result of a reciprocal discipline case from the District of Columbia. Respondent was found to have violated Md. Lawyers' R. Prof. Conduct 1.1, requiring competent representation, Md. Lawyers' R. Prof. Conduct 1.3, requiring diligent representation, Md. Lawyers' R. Prof. Conduct 1.4, requiring a lawyer to communicate with his client, Md. Lawyers' R. Prof. Conduct 1.5(a), requiring that a lawyer's fee be reasonable, Md. Lawyers' R. Prof. Conduct 3.1, prohibiting a lawyer from pursuing a frivolous proceeding, and Md. Lawyers' R. Prof. Conduct 8.4(a), prohibiting a violation of the rules, and 8.4(d), prohibiting conduct prejudicial to the administration of justice.

OUTCOME:  Respondent's license to practice law was indefinitely suspended for his failure to provide competent, diligent, and communicative representation to his client, charging unreasonable fees, pursuing a frivolous proceeding, and engaging in conduct prejudicial to the administration of justice.

CORE TERMS:  removal, accounting, clear and convincing evidence, hired, misconduct, preparation, overrule, notice, Maryland Rule of Professional Conduct, attorney-client, secretary, owed, legal representation, conclusions of law, suspension, retainer, competent representation, services rendered, civil action, diligence, arbitration, convincing, indefinite, informing, clerk, disciplinary action, temporary injunction, scheduled hearing, legal profession, failed to return

CORE CONCEPTS -  

Legal Ethics: Sanctions: Disciplinary Proceedings: Appeals
The court of appeals has original jurisdiction over all attorney disciplinary proceedings. Md. R. Cts., Judges, & Attorneys 16-709(b). The court makes an independent, detailed review of the complete record with particular reference to the evidence related to disputed factual findings. In the court's review it must keep in mind that the findings of the hearing judge are prima facie correct and will not be disturbed unless clearly erroneous. The hearing judge may elect to pick and choose which evidence to rely upon, for she or he is in the best position to assess a witness's credibility. Therefore, the court will not tamper with the hearing judge's factual findings if they are grounded in clear and convincing evidence.

Evidence: Procedural Considerations: Burdens of Proof, Presumptions & Inferences 
The requirement of clear and convincing or satisfactory evidence does not call for unanswerable or conclusive evidence. The quality of proof, to be clear and convincing, has also been said to be somewhere between the rule in ordinary civil cases and the requirement of criminal procedure--that is, it must be more than a mere preponderance but not beyond a reasonable doubt. It is also said that the term clear and convincing evidence means that the witnesses to a fact must be found to be credible, and that the facts to which they have testified are distinctly remembered and the details thereof narrated exactly and in due order, so as to enable the trier of the facts to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue. Whether evidence is clear and convincing requires weighing, comparing, testing, and judging its worth when considered in connection with all the facts and circumstances in evidence.

Legal Ethics: Client Relations: Effective Representation
See Md. Lawyers' R. Prof. Conduct 1.1.

Legal Ethics: Client Relations: Effective Representation
The requirement of adequate preparation has long been recognized as part of a lawyer's responsibility to provide competent representation, and it is not without significance that, in the current Code of Professional Responsibility embodied in the Md. Lawyers' R. Prof. Conduct, the duty to provide competent representation is given the place of honor as the first ingredient in the lawyer-client relationship.

Legal Ethics: Client Relations: Effective Representation
Competent handling of a particular matter includes inquiry into and analysis of the factual and legal elements of the problem, and use of methods and procedures. It also includes adequate preparation.

Legal Ethics: Client Relations: Effective Representation
See Md. Lawyers' R. Prof. Conduct 1.3.

Legal Ethics: Client Relations: Effective Representation
The court consistently regards neglect and inattentiveness to a client's interests to be an ethical violation warranting the imposition of some disciplinary sanction.

Legal Ethics: Client Relations: Effective Representation
See Md. Lawyers' R. Prof. Conduct 1.4.

Legal Ethics: Client Relations: Effective Representation
Even when a client delegates authority to the lawyer, the client should be kept advised of the status of the matter, for keeping the client informed is a basic responsibility of an attorney.

Legal Ethics: Client Relations: Attorney Fees
See Md. Lawyers' R. Prof. Conduct 1.5(a).

Legal Ethics: Client Relations: Frivolous Claims
See Md. Lawyers' R. Prof. Conduct 3.1.

Legal Ethics: Client Relations: Moral Accountability
See Md. Lawyers' R. Prof. Conduct 8.4(a) and (d).

Legal Ethics: Sanctions: Determinations
The purpose of disciplinary proceedings against an attorney is to protect the public rather than to punish the erring attorney. The public is protected when sanctions are imposed that are commensurate with the nature and gravity of the violations and the intent with which they were committed. The severity of the sanction depends upon the facts and circumstances of the case before the court. Imposing a sanction protects the public interest because it demonstrates to members of the legal profession the type of conduct which will not be tolerated. 

COUNSEL: ARGUED BY Melvin Hirshman, Bar Counsel and John C. Broderick, Assistant Bar Counsel for the Attorney Grievance Commission of Maryland, FOR Petitioner.
 
ARGUED BY Dushan S. Zdravkovich, of Riva, Md., FOR Respondent.

JUDGES: ARGUED BEFORE Bell, C.J., Eldridge, * Rodowsky, Raker, Wilner, Cathell and Harrell, JJ. Opinion by Harrell, J. 

* Rodowsky, J., now retired, participated in the hearing and conference of this case while an active member of this Court; after being recalled pursuant to the Constitution, Article IV, Section 3A, he also participated in the decision and adoption of this opinion.

 
OPINIONBY: Harrell

OPINION: [**952] [*5] Opinion by Harrell, J.

   Filed: December 4, 2000

   Pursuant to Maryland Rule 16-709(a) n1 , Bar Counsel, on behalf of the Attorney Grievance Commission (AGC) (Petitioner), and at the direction of the Review Board, filed a petition with this Court for disciplinary action against Dushan S. Zdravkovich, Esquire (Respondent). In this petition, Bar Counsel asserted four complaints[***2] alleging violations of Rules 1.1 (competence), 1.3 (diligence in representation), 1.4 (communication with clients), 1.5 (fees), 1.15 (safekeeping property), 1.16 (declining or terminating representation), 3.1 (meritorious claims and contentions), 8.1 (disciplinary matters), and 8.4 (misconduct) of the Maryland Rules of Professional Conduct (MRPC), and Md. Code (1992, 1998 Repl. Vol.), § 10-306 of the Business Occupations and Professions Article (misuse of trust money). This Court referred the matter to Judge Pamela R. North of the Circuit Court for Anne Arundel County to conduct an evidentiary hearing and make findings of fact and conclusions of law in accordance with Maryland Rules 16-709(b) n2 and 16-711(a) n3 .

n1 Rule 16-709(a) states that "charges against an attorney shall be filed by the Bar Counsel acting at the direction of the Review Board."

n2 Rule 16-709(b) states that the "Court of Appeals by order may direct that the charges be transmitted to and heard in any court and shall designate the judge or judges to hear the charges and the clerk responsible for maintaining the record in the proceeding."

[***3] 

n3 Rule 16-711(a) states that "[a] written statement of the findings of facts and conclusions of law shall be filed in the record of the proceedings and copies sent to all parties."

   [*6]

   I.

   Of the four complaints lodged against Respondent, two were voluntarily dismissed by Petitioner at the hearing before Judge North on 19 October 1999 due to insufficient evidence. n4 After the evidentiary hearing addressing the remaining two unrelated claims, Judge North found, by clear and convincing evidence, that Respondent violated MRPC 1.1, 1.3, 1.4, 1.5(a), 3.1, 8.4(a), and 8.4(d) during his attorney-client relationship with complainant Val Weaver. n5 Respondent, who has appeared pro se throughout these proceedings, filed with us extensive exceptions to the findings of fact and conclusions of law made by Judge North. Petitioner, who does not take any exceptions to the findings of fact and conclusions of law, recommends that we suspend indefinitely Respondent from the practice of law for his misconduct.

n4 The four complaints brought against Respondent by Bar Counsel involved four of Respondent's former clients: Val Weaver, Leslie Dean Brown, Darlene Clark, and Brian K. Hinds. The Hinds and Clark complaints were dismissed by Bar Counsel, leaving to Judge North to consider only the Brown and Weaver matters.

[***4] 

n5 Judge North also found Respondent did not violate any rules of professional conduct regarding his attorney-client relationship with Brown.

   [**953] From the evidentiary record below, Judge North made the following findings of fact pertaining to Respondent's conduct regarding Val Weaver:

   A. General Background

   1. Respondent was admitted to practice law in the State of Maryland on 3 November 1981. He is also a member of the bar for the District of Columbia and the former Yugoslavia.

   [*7]

   2. The conduct in question arose out of Respondent's representation of Val Weaver and James Impero during litigation filed by North American Technologies Group, Inc. (NATG). At that time, Respondent and Weaver had known one another on a professional and personal level for over 20 years. n6 Weaver and Impero had enjoyed a professional and personal relationship for 12 years.

n6 See infra note 13.

   3. During his affiliation with NATG, Weaver[***5] was responsible for business developments and was a corporate liaison with government agencies and military services. Although referred to by NATG as Vice President of Marketing, Weaver maintains he was an independent consultant.

   4. Impero is a bio-chemist who was employed by NATG as a director and an officer of the company.

   5. During the dispute, NATG attached Impero's belongings and locked him out of his office. On 23 January 1995, Impero executed a letter of resignation and a letter of understanding with NATG without the benefit of counsel. Impero did not obtain counsel until 10 February 1995, when a Texas law firm informed NATG's law firm of Impero's representation. Weaver, however, testified that Impero formalized an attorney-client relationship with Respondent sometime in or after January 1995.

   6. By 13 March 1995, it became unclear whether the Texas firm still represented Impero. According to Weaver, Respondent agreed to serve as general counsel for Impero as of 23 March 1995, with the scope of the representation limited to assisting Impero with his resignation from NATG and the recovery of his personal property. He further testified that Respondent's representation of [***6]Impero expanded when Impero became [*8] involved in an arbitration proceeding, filed in Chicago, Illinois, between NATG and Biotrace International, Inc. n7

n7 Weaver was not involved in this dispute. See infra Part I.C.

   7. In April 1995, NATG initiated litigation against Weaver and Impero in the Two-Hundredth-Eightieth Judicial District of Harris County, Texas. n8 The suit asserted numerous causes of action, including breach of contract, fraud, breach of fiduciary relationship, tortious interference with prospective business relations, negligent misrepresentation, slander, libel, tortious interference with existing business relations, deceptive trade practices, and fraudulent transfers.

n8 NATG actually filed a Petition for Injunction and Damages with Requests for Admissions, Interrogatories, and Production of Documents Attached against Val Weaver, James Impero, Robyn Impero, and the Impero Family Trust.

[***7]

   8. The only evidence on the record establishing Respondent's representation of either Impero or Weaver are two letters and an unsigned and undated copy of a retainer agreement. The first letter, dated 14 April 1995, is from Respondent and refers to Impero as "my client." The second letter, dated 1 May 1995, is from Respondent to Weaver and Impero, [**954] in which Respondent states "this office will represent James Impero and Val Weaver in any proceeding in the States of Maryland[,] Texas, and Illinois at a single rate of $150 per hour. . . ." See infra Fee Discussion.

    9. Weaver testified that, as of April 1995, his role was that of a [sic] "lightening rod" between Respondent and Impero and that, as a result, he received copies of all documents concerning Impero's legal problems and communicated with both parties on a weekly basis. n9

n9 A memorandum from Impero to Respondent, dated 10 July 1995, indicates that Weaver and Impero "must communicate once a day so [Respondent should] feed information to [Weaver]." Corroborating this request is a letter to Respondent from Weaver, dated 27 October 1995, acknowledging that "it certainly has not been easy for me over the last few months to act as the daily 'lightning rod' for matters between you and Jim."

[***8]

   [*9]

   10. There is no evidence on the record of a retainer agreement between Respondent and Weaver. While Weaver initially stated that he never personally hired Respondent in the Texas matter, he later testified that Impero hired Respondent to represent Impero and Weaver, with Impero agreeing to pay all of Respondent's fees. See infra Fee Discussion. Weaver indicated that he initially relied on Respondent's statements that he represented both Weaver and Impero, but later hired Respondent individually when he became a party to the NATG dispute.

   11. Respondent hired local counsel in Texas to assist him with the Texas action; Weaver testified he was not certain if the local attorney represented him or Impero or both.

   B. Charles County, Maryland Action

   1. On 22 July 1995, Respondent filed a complaint and jury demand on Weaver's behalf in the Circuit Court for Charles County, Maryland. Respondent alleged that service of process for the Texas civil action on Weaver, through his wife, was improper because the Sheriff's affidavit was based on false and misleading information. He also alleged that contractual obligations owed by NATG to the Weavers were never fully discharged, and[***9] that NATG owed the Weavers monies, stock options, and stock valued in excess of $2,000,000. Finally, the compliant alleged NATG made defamatory statements against Val Weaver in a New York Stock Exchange press release, published in Maryland, that stated that Weaver had breached the duties he owed NATG.

   2. On 24 October 1995, Maryland counsel for NATG filed a Motion to Dismiss in the Charles County action.

   [*10]

   3. In a letter to Respondent from Weaver dated 27 October 1995, Weaver, indicating that a dismissal of the Charles County action was a prerequisite to the success of any mediation proceedings taking place in the Texas action, requested that Respondent dismiss the action without prejudice. Respondent did not reply to or act upon Weaver's request.

   4. In a letter dated 7 November 1995, Weaver told Respondent that "the state of affairs and apparent conflict now between us forces me to dismiss your legal representation from all activities and matters regarding me [specifically, the federal District Court action [and the Charles County action] and any issues involving Impero and NATG]." At the time he wrote this letter, Weaver did not know that Respondent had not filed the Motion[***10] to Dismiss in the Charles County action.

   5. On 24 November 1995, Respondent filed a Motion to Withdraw Appearance in the Charles County action. [**955] The Charles County Circuit Court initially granted this motion on 13 December 1995. The motion granting the withdrawal was later stricken on 5 January 1996, when the Circuit Court learned that Weaver did not consent to Respondent's withdrawal because Weaver did not know that Respondent had not filed the Motion to Dismiss.

   6. On 16 April 1996, NATG filed a second Motion to Dismiss in the Charles County action. Respondent did not answer this motion either.

   7. On 28 May 1996, the Circuit Court wrote a letter to Respondent informing him that it had not received an answer to NATG's motions and that, "given the previous history concerning your representation of Mr. Weaver, [the Court is] forwarding a copy of the Memorandum and Motion to Dismiss directly to him, along with his copy of this letter. . . . to give [Weaver] every opportunity to respond to the Motion to Dismiss."

   [*11]

   8. On 11 June 1996, Weaver informed the Circuit Court that he had not spoken with Respondent since October 1995 and that Respondent refused to communicate with Weaver[***11] since that date. Weaver then filed, pro se, a Motion for Voluntary Dismissal. This motion was granted on 18 June 1996.

   C. District of Maryland, Harris County, Texas, and Chicago, Illinois Actions

   1. On 19 June 1995, Respondent, on behalf of Impero and his company, filed suit against NATG, Biotrace International, three law firms, two attorneys, and the American Arbitration Association in the United States District Court for the District of Maryland. The complaint alleged a breach of fiduciary duty, breach of contract, fraud, wrongful interference with a contract, replevin, and mandamus.

   2. On 20 June 1995, Respondent received a letter from the United States District Court for the District of Maryland that warned him that the complaint he had filed was deficient in many respects. The letter indicated that it was not clear whether the Court had subject matter or personal jurisdiction over the action or any of the defendants, respectively, and that the Court questioned whether venue was proper. The Court advised that Respondent would have to correct the deficiencies before the Court would address the merits of the claims.

   3. The record reflects that Respondent neither[***12] corrected these deficiencies nor complied with the Court's order.

   4. On 26 June 1996, Respondent wrote to Impero and Weaver to discuss the fee for his legal services and expenses, as well as the fees for those attorneys whom he had hired to assist him with Weaver's and Impero's representation. See infra Fee Discussion. He also wrote to update them on the status of their respective cases.

   [*12]

   With respect to the federal District Court case, Respondent stated he would stagger the filing of three separate complaints on Mr. Weaver's, Mrs. Weaver's, and Mr. Impero's behalf. After filing each complaint, he would move to amend it before he filed the next. His intention in filing the suit in this manner was that the "filing schedules will probably throw off all party defendants with a degree of risk that the Court may not be too fond of our tactics."

   With respect to the Chicago arbitration, Respondent indicated that he hoped the arbitration would be "greatly affected" by the federal action in Maryland.

   [**956] As to the Texas action, Respondent assured them that he would be doing most of the drafting of the initial pleadings, including a motion to move in out-of-state counsel, an entry of appearance, [***13] a motion to dismiss for lack of jurisdiction, an affidavit of residency of Impero, and a motion to strike one of the law firms from representing NATG. Respondent also indicated in his letter that he and the Texas counsel would meet with Impero in Texas on 28 June 1996.

   Lastly, Respondent stated that he had received an inquiry regarding a possible settlement between NATG, Weaver, and Impero. He indicated, however, that "realistically speaking a settlement with [NATG] is not in the cards."

   5. On 31 July 1995, Respondent filed a Petition for Removal and Consolidation of the Texas action into the United States District Court for the District of Maryland. Informing Weaver of the petition, Respondent indicated that he felt the Texas action should be removed to Maryland because Impero and Weaver were residents of Maryland, and because he thought NATG was not licensed to do business in Texas.

   6. On 1 August 1995, Respondent filed on Impero's behalf a Joinder of Party Co-Defendant in the District Court for Harris County, Texas. The joinder was filed pending [*13] the removal of the Weaver case from Texas to the federal District Court in Maryland.

   7. On 8 August 1995, Judge Deborah Chasanow[***14] of the U.S. District Court in Maryland issued a written opinion in which she concluded that Respondent "appeared to be confused as to the applicability of the removal statute [ 28 U.S.C. § 1446] n10 to the various proceedings involved." Judge Chasanow informed Respondent that, under the Federal Rules of Civil Procedure, only a defendant can file a removal petition, and that even if Respondent were in a position to make such a filing, the Texas state action could not be removed to a federal district court in Maryland, but rather only to one in [*14] Texas, if at all. Judge Chasanow not only found that removal of the Weaver case was improper, but that adding Maryland defendants to the Impero case "would destroy whatever diversity jurisdiction currently exists in that [**957] case, if any, and would require the dismissal or the transfer of that case to a Maryland circuit court." Judge Chasanow concluded the opinion by entering an Order of Remand.

n10 As to the procedure for removing a civil case, 28 U.S.C. § 1446 (2000) provides:

   (a) A defendant or defendants desiring to remove any civil action or criminal prosecution from a State court shall file in the district court of the United States for the district and division within which such action is pending a notice of removal signed pursuant to Rule 11 of the Federal Rules of Civil Procedure and containing a short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served upon such defendant or defendants in such action.

   (b) The notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.

   If the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable, except that a case may not be removed on the basis of jurisdiction conferred by section 1332 of this title more than 1 year after commencement of the action.

   . . . .

   (d) Promptly after the filing of such notice of removal of a civil action the defendant or defendants shall give written notice thereof to all adverse parties and shall file a copy of the notice with the clerk of such State court, which shall effect removal and the State court shall proceed no further unless and until the case is remanded.

[***15]

   8. At the time the Motion for Removal was filed by Respondent, a previously scheduled hearing on a temporary injunction pending in the Texas action was scheduled for 11 August 1995. NATG claimed that Respondent did not send notice of the filing of the Petition for Removal to counsel of record in the Texas action until 9 August 1995. Moreover, NATG claimed that Respondent sent the notice by express mail, which arrived on 10 August 1995, requiring a postponement of the 11 August 1995 hearing and resulting in an incurment of expenses by NATG for costs of witness appearance and travel that could not be canceled in time. As a result, NATG filed a Motion for Rule 11 Sanctions in the U.S. District Court in Maryland against Respondent, Weaver, and Impero. Although Weaver testified that Respondent failed to advise him or Impero that these sanctions had been filed against them, a letter dated 21 August 1995 from Respondent to NATG's counsel in Maryland discussing the sanctions indicates that the letter was copied to both Weaver and Impero.

   9. On 5 October 1995, Respondent wrote a letter to Impero informing him of the status of his cases, but omitted any mention of the Motion for Sanctions [***16]which had been filed against them.

   10. On 11 October 1995, Impero called Weaver to inquire whether he was aware of the Motion for Sanctions filed against them. Shortly afterward, Weaver received a facsimile from Respondent informing him of the motion. Weaver testified that he repeatedly tried to [*15] reach Respondent to discuss the motion, but that Respondent failed to return his calls.

   11. On 13 October 1995, Weaver reviewed his court file at the U.S. District Court in Maryland and learned that a response to the Motion for Sanctions was due by 16 October 1995. After discussing his situation with the Clerk of Court, Weaver filed a letter with the Court on 17 October 1995, informing Judge Chasanow of his lack of knowledge regarding the motion and his inability to contact Respondent.

   Weaver testified that he tried contacting Respondent during the week of 13 October, but to no avail. He also testified that he asked Respondent's secretary if he could review his files. The secretary initially answered affirmatively, but later informed Weaver that Respondent denied Weaver's request to see the files.

   Also on 13 October 1995, a request was made by Weaver to NATG on Impero's and Weaver's behalf[***17] to dismiss the Motion for Sanctions. This request was granted, but only as to the two men and not as to Respondent.

   12. On 26 October 1995, Impero told Respondent he wanted to end the litigation, and instructed him to file a Motion to Dismiss the lawsuit filed in the U.S. District Court in Maryland without prejudice and to return all of his papers to the Weavers. n11 Weaver testified that while Respondent failed to return his papers, he did demand $150,000 as payment for his representation of Impero and/or Weaver.

n11 Following Impero's advice, Weaver asked Respondent on 24 October 1995 to terminate his NATG-related actions. See supra Part I.B.3.

   [**958] 13. On 21 November 1995, the U.S. District Court granted NATG's Motion for Sanctions against Respondent, reiterating Respondent's lack of legal foundation for the removal of the Texas and Charles County actions to U.S. District Court in Maryland, as well as his failure to explain his actions upon the Court's request. Judge [*16] Chasanow concluded that Respondent's "actions[***18] indicate that he did not even conduct the bare minimum legal research required by Rule 11. . . .[and that his] oversight is unconscionable." Furthermore, Judge Chasanow determined that Respondent's "carelessness has resulted in inexcusable delay in state court proceedings, has consumed unnecessary time and resources in federal court, and has forced Defendants to spend unwarranted amounts on litigation. . . ." Respondent was ordered to pay $2500 within 30 days of the date of the Order.

   14. On 29 November 1995, the federal District Court action was dismissed pursuant to the Notice of Voluntary Dismissal filed by Respondent.

   15. Respondent appealed Judge Chasanow's decision to the U.S. Court of Appeals for the Fourth Circuit. The Fourth Circuit affirmed the Order for Sanctions on 27 April 1997.

   D. Accounting, Fees, and Expenses

   1. Weaver's wife, Marilyn, testified that she assisted Respondent on one occasion when one of his secretaries left. She testified that "when she first arrived at Respondent's office, the office looked like someone had thrown a party for a four year old." She stated that "there were files on the floor and documents were missing." After two days, [***19] she was able to sort the NATG files and put them into binders in chronological order. She indicated that there was no evidence that Respondent kept time sheets for the work he did on the NATG case.

   2. Marilyn testified that, once Respondent hired a new secretary, she and the new secretary initiated an accounting system for Respondent, but that she was uncertain whether Respondent ever maintained the system. Marilyn also indicated that Respondent fired the new secretary when she refused to send Impero a bill [*17]for $7000. Additionally, Marilyn testified that Respondent told her to "tell [Impero] he owes us $7000 and $500 in expenses." Marilyn relayed the message to Impero, who requested an accounting of the amount.

   3. Despite repeated requests for accounting, Respondent did not provide Weaver or Impero with any formal accounting.

   4. A bill dated 25 April 1995 to Impero from Respondent totaled $11,550, less $10,000 already received, for services rendered between 8 March 1995 and 25 April 1995.

   5. In a letter dated 1 May 1995, Respondent addressed the scope of his legal representation of Impero and Weaver and his fees for services rendered. He noted his hourly fee of $150, explaining[***20] that, "in essence, each client is charged $75.00 per hour for all representations, even though in some instances the matters may refer only to one client, and at other instances the matters will refer to the other client."

   6. Weaver testified that Impero paid Respondent $50,000 on their behalf over the course of the representation. Impero indicated in a note to Respondent that he had paid Respondent $5000, and that he was sending Respondent a $20,000 check, dated 2 May 1995. He also stated [**959] that he would send Respondent $10,000 more by July 1995.
 
   7. In a letter dated 26 June 1995, Respondent informed Impero and Weaver that, as to the Chicago arbitration, Respondent had hired an attorney to assist him for $1000 as a retainer and at the rate of $100 per hour. Respondent also said he had hired an attorney to assist with the Texas action at the rate of $175 per hour.

   Additionally, Respondent indicated that he had spent approximately 168 hours on legal representation, excluding social hours, to date. He said he also had incurred $3000 in various business expenses, but acknowledged that Impero had already advanced him $32,000 to cover services rendered in the Texas action for [***21] him and the [*18] Weavers. Respondent did not provide any accounting of his hours or receipts to validate his expenses.

   8. In response to Impero's concern over Respondent's fee, Respondent, in a letter dated 5 July 1995, acknowledged "that there may have been a colossal misunderstanding on the issue of expenses." He went on to describe client expense accounts in general, noting that such a "fund has not been established by this office as the extent of the expenses has not been known at the time of our agreement." He explained that "the reason for [his] restraint on that issue is that expenses in general do not depend on the client's attorney only, but is also contingent on the activities of other attorneys as well." He hoped that the year's end expenses would not exceed $15,000, but reminded Impero that "the retainers for the indispensable local counsel in Chicago and Houston are set at $6000, n12 the sum considered indeed a tremendous bargain in the legal profession." Telling him that an accounting would follow, Respondent asked Impero to pay the retainer fee to the attorney in Texas in the interim.

n12 But see Part I.D.7, addressing Respondent's indication that the Chicago attorney's retainer is $1000, and Part I.D.10, which notes that Respondent did not discuss a retainer fee in a letter to the Texas counsel regarding his fees.

[***22]

   9. On 10 July 1995, Impero answered Respondent's letter by explaining his financial situation and by setting forth the fees which he had paid to Respondent and the other attorneys to date. He noted that he had financed "this endeavor 100%" and that he could only "commit to a maximum of an additional $40,000 on top of the $11,000 paid to [his] first attorneys, $10,000 paid to [Respondent] when [he] agreed to [Respondent's] representing [the Imperos], followed by an additional $20,000, with an additional $10,000 to be paid at a later date." Additionally, Impero stated that Biotrace, the other company in the Chicago arbitration, had paid Respondent $2500 for [*19] services rendered and another $2500 would be forthcoming. Impero also questioned Respondent's deposition fee ($1080) and travel expense reimbursement requests ($776), as Impero had already paid Respondent $2000 for deposition fees and filing fees in the Maryland action, and $2700 in travel expenses between Chicago and Houston.

   10. In an unsigned letter dated 15 August 1995 to the local counsel in Texas, Respondent stated that their arrangement called "for a set fee in the amount of $80.00 per hour and a contingent[***23] fee of an additional $45.00 per hour, the aggregate hourly fee being $125.00 . . . . [with] any expenses incurred in connection therewith shall be reimbursed to your office, i.e., telephone, secretarial and paralegal services and the like."

   [**960] 11. In a letter to Impero dated 5 October 1995, Respondent stated:

   In consideration of the Retainer Agreement Provisions, I would like to request the following (a) Commitment to immediately discharge your obligation committed to in June of 1995 and pay to this office $7500.00, $7000.00 being the balance due from the committed payment of $10,000.00 and an additional balance of $500.00 advanced to defray part of the expenses; and (b) Further stipulations that you will fund all assignments with not less than $5000.00 per month to be advanced for fees and expenses on a timely basis.

   12. Marilyn Weaver testified that, on or about 1 November 1996, a private investigator who worked for Respondent told her that Respondent wanted the Weavers to pay $150,000 in attorney's fees within 48-hours or Respondent would ruin Weaver and his security clearance, and would bring criminal charges against him. She also testified that Respondent had not[***24] only assured her that there would be "no charge for my [*20] family, the Weavers," n13 but that she had never discussed any fee agreement with Respondent regarding his representation of her husband; in fact, she indicated that the last time she recalled retaining Respondent's services was over 20 years ago.

n13 Marilyn Weaver testified that Respondent was a long-time family friend who, on many occasions, had visited her home for dinner and stayed the night. She also said her family referred to Respondent as "Uncle Dushka."

 
Based upon these findings of fact, Judge North concluded that Respondent violated MRPC 1.1, 1.3, 1.4, 1.5(a), 3.1, 8.4(a), and 8.4(d) regarding his attorney-client relationship with complainant Val Weaver.

   Respondent excepted generally to Judge North's findings, contending that "all his actions in the [Weaver] matter were taken in good faith with an aim to provide strong representation in a highly contentious legal battle." Specifically, he asserted that he had a legal basis for his actions[***25] in the Circuit Court for Charles County; that he would have addressed the deficiencies noted in the Maryland federal action in June 1995 by the U.S. District Court for the District of Maryland if the case had not settled in November; and that he was unaware of the hearing for a temporary injunction in the Texas state court when he filed the removal petition in the Maryland federal court. We address Respondent's exceptions below.

   II.

   A. Standard of Review
 
   This Court has original jurisdiction over all attorney disciplinary proceedings. See Attorney Grievance Comm'n v. Sheridan, 357 Md. 1, 17, 741 A.2d 1143, 1152 (1999); Attorney Grievance Comm'n v. Glenn, 341 Md. 448, 470, 671 A.2d 463, 473 (1996); see also Md. Rule 16-709(b) (stating "charges against an attorney shall be filed on behalf of the [Attorney Grievance] Commission in the Court of Appeals."). As to Respondent's exceptions to Judge North's findings, "we [*21] [make] an independent, detailed review of the complete record with particular reference to the evidence related to the disputed factual finding." See Sheridan, 357 Md. at 17, 741 A.2d at 1152; Glenn, 341 Md. at 470, 671 A.2d at 473[***26] (quoting Bar Asso v. Marshall, 269 Md. 510, 516, 307 A.2d 677, 680-81 (1973)). In our review, "we must keep in mind that the findings of the [hearing] judge are prima facia correct and will not be disturbed unless clearly erroneous." See Sheridan, 357 Md. at 17, 741 A.2d at 1152; Glenn, 341 Md. at 470, 671 A.2d at 473; Attorney Grievance Comm'n v. Kemp, 303 Md. 664, 674, 496 A.2d 672, 677 (1985); Attorney Grievance Comm'n v. Collins, 295 Md. 532, 548, 457 [**961] A.2d 1134, 1142 (1983) (quoting Attorney Grievance Comm'n v. Kahn, 290 Md. 654, 678, 431 A.2d 1336, 1349 (1981)). We note that the hearing judge "may elect to pick and choose which evidence to rely upon," Kemp, 303 Md. 675, 496 A.2d at 677, for she or he is in the best position to assess a witness's credibility. See Sheridan, 357 Md. at 17, 741 A.2d at 1152. Therefore, we will not tamper with Judge North's factual findings if they are grounded in clear and convincing evidence. See Kahn, 290 Md. at 678, 431 A.2d at 1350.

   We recently reiterated the definition of clear and convincing[***27] evidence in Attorney Grievance Comm'n v. Mooney, 359 Md. 56, 79, 753 A.2d 17, 35 (2000):

   The requirement of "clear and convincing" or "satisfactory" evidence does not call for "unanswerable" or "conclusive" evidence. The quality of proof, to be clear and convincing, has also been said to be somewhere between the rule in ordinary civil cases and the requirement of criminal procedure--that is, it must be more than a mere preponderance but not beyond a reasonable doubt. It has also been said that the term "clear and convincing" evidence means that the witnesses to a fact must be found to be credible, and that the facts to which they have testified are distinctly remembered and the details there of narrated exactly and in due order, so as to enable the trier of the facts to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue. Whether evidence is clear and convincing [*22] requires weighing, comparing, testing, and judging its worth when considered in connection with all the facts and circumstances in evidence.
 
(quoting Berkey v. Delia, 287 Md. 302, 320, 413 A.2d 170, 178 (1980) (quoting 30 AM. JUR. 2d EVIDENCE § 1167) [***28] (citing Whittington v. State, 8 Md. App. 676, 679 n.3, 262 A.2d 75, 77 n.3 (1970))).

   B. Violation of MRPC 1.1
 
Maryland Rule of Professional Conduct 1.1--Competence.
 
A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

    After thoroughly reviewing the record, we conclude that Judge North's findings of fact as they pertain to MRPC 1.1 are supported by clear and convincing evidence. Acknowledging that Respondent possessed sufficient legal competence to represent Weaver in the matters undertaken, the hearing judge nonetheless determined that Respondent failed to exercise "requisite thoroughness and preparation required of an attorney because he failed to research the removal issue." Respondent excepts to this finding, arguing that the U.S. District Court in Maryland should not have granted any sanctions against him because the grounds for filing the removal petition were not baseless and that Judge North should not have based her conclusion that Respondent violated MRPC 1.1 on a "wholesale acceptance[***29] of the Rule 11 [sanction] matter." We overrule Respondent's exceptions as to his violation of MRPC 1.1 for the reasons set forth below.

   In Mooney, we noted that:

   The requirement of adequate preparation has long been recognized as part of a lawyer's responsibility to provide competent representation, and it is not without significance that, in the current Code of Professional Responsibility embodied in the MLRPC, the duty to provide competent representation is given "the place of honor as the first [*23] ingredient in the lawyer-client relationship." Former DR 6-101(A)(2) precluded a lawyer from handling a matter "without preparation adequate in the circumstances," and the failure to make a proper investigation of the facts of a case prior to trial has led to discipline.
 
[**962] 359 Md. at 75, 753 A.2d at 27 (quoting 1 GEOFFREY C. HAZARD, JR. AND W. WILLIAM HODES, THE LAW OF LAWYERING, 2d ed. § 1.1:101 (1997)) (citing In Re Conduct of Chambers, 292 Ore. 670, 642 P.2d 286 (1982); People v. Felker, 770 P.2d 402 (Colo. 1989)). Moreover, the Comment to MRPC 1.1 explains that "competent handling of a particular matter includes inquiry into[***30] and analysis of the factual and legal elements of the problem, and use of methods and procedures . . . . It also includes adequate preparation . . . ."

   Judge North found in this case by clear and convincing evidence that Respondent filed the Petition for Removal without researching properly the applicable laws or rules. The fact that the U.S. District Court also found that Respondent's preparation was lacking woefully, and thus deserving of sanction, is sustentative of the hearing judge's independent finding.

   We conclude that Respondent's filing of the removal petition was more than "without preparation adequate in the circumstances"; by not assuming the relatively simple, yet essential, task of consulting 28 U.S.C. § 1446, n14 Respondent clearly dishonored his obligation to provide Weaver with competent representation. We, therefore, overrule Respondent's exception and agree with Judge North's conclusion that, while Respondent possessed the ability to conduct such research, he inexplicably failed to do so.

n14 See supra note 10, for relevant text.

[***31]

   C. Violation of MRPC 1.3
 
Maryland Rule of Professional Conduct 1.3--Diligence.
 
A lawyer shall act with reasonable diligence and promptness in representing a client.

   [*24]

   Judge North concluded that Respondent violated MRPC 1.3 based on her findings that Respondent failed repeatedly to return Weaver's phone calls, respond to his letters, allow him to review his file, or provide basic accounting for assertedly earned fees. Arguing that he "demonstrated an overabundance of diligence and concern in representing the interests of Mr. Impero and Mr. Weaver," Respondent advances three exceptions to these findings. First, he argues that he correctly refused to permit Weaver to review the files because "Respondent's representation chiefly was of Mr. Impero." n15 Second, Respondent argues that "any lapse of communication did not cause any adverse effect on the conduct of the litigation." Third, Respondent contests that Weaver requested an accounting and argues that, even if he did, any accounting that Respondent would be required to provide would be owed to Impero (who did not testify before Judge North) because Impero "was to provide the main financial support[***32] for the litigation and representation."

n15 In a letter to Respondent from Weaver, dated 27 October 1995, Weaver acknowledges "Impero's role as the principle litigant," and that Weaver looked to Impero for guidance as to what steps to take in the litigation. See, e.g., supra note 11.

   Judge North was presented with voluminous documents from Respondent's office, most of which were either in complete disarray or "organized" in a chaotic sort of filing system. Nonetheless, she was able to determine that, while a signed fee agreement between Respondent and Weaver may not have existed, Weaver was one of Respondent's clients. In a letter to Impero and Weaver, dated 1 May 1995, Respondent "confirms the consensus reached among yourselves [Weaver and Impero] and this counsel on the wide range" of legal representation and legal fees. Respondent states that he will represent Impero and Weaver in "any proceeding in the States of Maryland[,] Texas, and Illinois at a single rate of $150.00 per hour. In essence, [***33] each client is charged with $75.00 per hour for all representations, even though in some instances the matters may refer only to one client . . . ." (Emphasis added). [*25] Additionally, Weaver [**963] terminated Respondent's representation of him in a letter dated 7 November 1995; such a dismissal supports the notion that an attorney-client relationship previously existed between the parties.

    Given the evidentiary support for these findings of fact, we overrule Respondent's first and third exceptions. With respect to the first exception, whether Impero was Respondent's principal client in the NATG dispute does not negate the fact that Weaver also was Respondent's client in that dispute. As to the third exception, Weaver, as a client of Respondent's, maintained the right to review his file and receive an accounting of Respondent's billing, even if Impero, and not Weaver, was paying for Weaver's accrued fees. The 1 May 1995 letter clearly indicates that Respondent charged Weaver $75 per hour for representation. Whether the "consensus" reached between Impero and Weaver included an agreement for Impero to pay Weaver's fees is irrelevant. Respondent did not purport to represent Weaver as a [***34] pro bono client; rather, Respondent charged Weaver for services and, as a result, Weaver should have been given access to the files and Respondent owed a duty of accounting for time and expenses.

   We also overrule Respondent's second exception, as we find no merit in Respondent's assertion of "no harm, no foul" and "all is well that ends well." Respondent implies that, because Weaver's cases were dismissed ultimately, the fact that Respondent failed to communicate with his client is immaterial. We disagree. Specifically, we remind Respondent that, by failing to dismiss the Charles County action in accordance with Weaver's instructions, he risked derailing Weaver's settlement efforts. Respondent should note that, in Attorney Grievance Comm'n v. Pinkney, we held that an attorney violated MRPC 1.3 when she led her client to believe she had filed a lawsuit on the client's behalf when, in fact, she had not done so.  311 Md. 137, 141, 532 A.2d 1367, 1369 (1987). We determined that the attorney violated the rule "by neglecting a matter entrusted to her." Id. In the present case, [*26] Respondent clearly neglected a matter--Weaver's instructions to dismiss the Charles County[***35] action--entrusted to him.

   Additionally, we stated in Mooney, "this Court has consistently regarded neglect and inattentiveness to a client's interests to be [an ethical violation] warranting the imposition of some disciplinary sanction." 359 Md. at 76, 753 A.2d at 27 (quoting Attorney Grievance Comm'n v. Montgomery, 296 Md. 113, 120, 460 A.2d 597, 600 (1983)). We conclude that Judge North correctly found, by clear and convincing evidence, that Respondent's inattentiveness to Weaver's interests rose to a level of neglect unacceptable in the legal profession. Therefore, Respondent violated MRPC 1.3.

   D. Violation of MRPC 1.4

   Maryland Rule of Professional Conduct 1.4--Communication.

   (a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.

   (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

   Judge North found that, although Respondent initially maintained the appropriate level of communication with his client, Respondent's diligence in keeping[***36] Weaver current on the status of his cases diminished greatly during the later course of the representation. Judge North found that Respondent failed to keep Weaver adequately apprised of the time spent and expenses accrued during the case. Judge North also found that Respondent refused to allow Weaver access to the files, and that he failed to act upon Weaver's specific requests, such as his 27 October 1995 request that Respondent dismiss the Charles County action. Respondent also failed to inform Weaver in a timely manner of the [**964] Motion for Sanctions filed against Weaver, Impero, and Respondent in the U.S. District Court for Maryland.

   [*27]

   Moreover, Judge North found that Respondent failed to explain to Weaver his strategy in litigating the disputes. While Respondent initially provided Weaver with insight as to why, for example, he wanted to file the complaints in the U.S. District Court for Maryland in a staggered fashion, Respondent failed, as noted above, to inform Weaver of the pending Motion for Sanctions, failed to respond on Weaver's behalf regarding the sanctions, and failed to return Weaver's later phone calls with respect to the sanctions. Judge North pointed out that Weaver[***37] was forced to send several letters directly to Judge Chasanow because he was unable to reach his attorney.

   We conclude that Judge North was presented with clear and convincing evidence upon which to determine that Respondent violated MRPC 1.4. The Comment to MRPC 1.4 provides that "even when a client delegates authority to the lawyer, the client should be kept advised of the status of the matter," for "keeping the client informed is a basic responsibility of an attorney." Mooney, 359 Md. at 89, 753 A.2d at 34. Because of the tremendous importance placed upon attorney-client communication, we have stated that "the lack of communication with one's client, for whatever reason, is a matter of continuing concern to the public." Mooney, 359 Md. at 76, 753 A.2d at 27 (quoting Montgomery, 296 Md. at 120, 460 A.2d at 600). Respondent's lack of communication with Weaver, most offensively in regard to his ignoring Weaver's request to dismiss the Charles County action, is inexcusable and in clear violation of MRPC 1.4. We therefore overrule Respondent's exceptions as to this violation.

   E. Violation of MRPC 1.5(a)
 
Maryland Rule [***38]  of Professional Conduct 1.5--Fees.

   (a) A lawyer's fees shall be reasonable. The factors to be considered in determining the reasonableness of a fee include the following:

   (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;

   [*28]

   (2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;

   (3) the fee customarily charged in the locality for similar legal services;

   (4) the amount involved and the results obtained;

   (5) the time limitations imposed by the client or by the circumstances;

    (6) the nature and length of the professional relationship with the client;

   (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and
 
(8) whether the fee is fixed or contingent.

   Given the condition of Respondent's records, Judge North understandably found herself unable to fathom any bookkeeping system Respondent might have employed. Although she determined Respondent's fee was set at a reasonable $150 per hour, given Respondent's expertise and experience, she questioned[***39] the claimed $150,000 total fee because it was impossible to determine from the billing "system" whether Respondent actually earned that amount. The hearing judge realized that Respondent would have had to work 40 hours per week for six and a quarter months on Weaver's case alone for Weaver (or Impero) to have owed Respondent $150,000. Judge North found, however, no evidence of Respondent even working 20 hours a week on the Weaver and Impero cases during the course of 1995. n16 Moreover, there was no evidence [**965] that Respondent worked solely on the Impero/Weaver/NATG matter, which he asserts became "in essence Respondent's exclusive professional practice [during 1995]." [*29] On the contrary, Judge North found in Respondent's records evidence that Respondent represented other clients on other matters during the time period in question.

n16 In a letter to Weaver and Impero, dated 26 June 1995, Respondent stated that "according to our records, the time consumed for all legal representation . . . is a rounded figure of one hundred sixty eight hours (168), thus averaging circa 10 hours per week since March." He went on to say that "my impression is that we have not computed all hours dedicated to your case, but no adjustments will be made for this period."

[***40]

   We agree with Judge North's conclusion that Respondent violated subsections of MRPC 1.5(a) and that such a conclusion was supported by clear and convincing evidence. F. Violation of MRPC 3.1
 
Maryland Rule of Professional Conduct 3.1--Meritorious claims and contentions.

   A lawyer shall not bring or defend a proceeding, or assert or controvert an issue thereon, unless there is a basis for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer may nevertheless so defend the proceeding as to require that every element of the moving party's case be established.

   Judge North found that "Respondent's attempt to remove all of the actions into the U.S. District Court in Maryland was frivolous." Respondent excepts to the finding, arguing that he was trying to "litigate with more practicality" by consolidating the Weaver and Impero actions to "avoid unnecessary costs and delays." Agreeing with Judge North, we overrule this exception and conclude that a reading of 28 U.S.C. § 1446 n17 would have made it crystal clear to Respondent that, under the circumstances, [***41] he could not remove the Texas action to a federal court in Maryland. His professed concern for "judicial economy" is unavailing in the face of the rules of federal civil procedure.

n17 See supra note 10 for relevant text.

   G. Violation of MRPC 8.4(a) and 8.4(d)

   Maryland Rule of Professional Conduct 8.4--Misconduct.

   It is professional misconduct for a lawyer to:

   [*30]

   (a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through acts of another;

   . . .

   (d) engage in conduct that is prejudicial to the administration of justice; . . . .

   Judge North concluded that Respondent did not commit any crimes or engage in conduct involving fraud, deceit, dishonesty, or misrepresentation. She did conclude, however, that Respondent's act of filing a motion to remove the Texas action, without any legal basis, was prejudicial to the administration of justice. She also found that Respondent interfered with the administration of justice[***42] when he failed to mail the Motion for Removal to opposing counsel until two days before a scheduled hearing in Texas, forcing NATG to incur unnecessary expenses.

   Respondent excepts to these findings, arguing that he tried to consolidate and remove the Weaver and Impero actions into the U.S. District Court in Maryland in order to "litigate with more practicality." Respondent also contends that he was not aware of the hearing in Texas for the temporary injunction, and that because he had procured local counsel in the Texas action, he "had no reason to know of any scheduled hearings, assuming there were any . . . ." n18 Id. at 22. 

n18 Respondent goes so far as to argue that "no such scheduled hearing appears on the docket entries from the Texas court in the NATG action against Impero and Weaver. He further contends that no such hearing in that court ever was, in fact, scheduled."

   Given the clear and convincing evidence upon which Judge North made her conclusions [**966] of law, we overrule Respondent's exceptions. [***43] First, having affirmed Judge North's conclusions that Respondent violated MRPC 1.1, 1.3,1.4, 1.5(a), and 3.1, we conclude that Judge North had clear and convincing evidence upon which to determine that Respondent violated MRPC 8.4(a). Second, we find it particularly troublesome that Respondent believes that, even though he served as lead counsel in the NATG dispute for Weaver and Impero, he [*31] nevertheless was absolved of the responsibility of keeping abreast of any recent filings by the opposing party and resultant court hearing dates because he had hired local counsel to, in his words, "assist" him with the case. In a 26 June 1995 letter, Respondent reassured Weaver and Impero that he, and not the Texas counsel, would be doing the bulk of the work on their case. As we noted in Mooney, "failure to represent a client in an adequate manner violates MRPC 8.4(d)." 359 Md. at 83, 753 A.2d at 31. By not fulfilling the duties he owed to his client, Respondent failed to represent Weaver adequately. We also address briefly Respondent's strenuous exceptions here to Judge Chasanow's denial of his Petition for Removal and Consolidation "without a hearing, and prior to any opposition [***44]  to it submitted by opposing counsel." (Respondent's emphasis). Respondent seems to imply that Judge Chasanow's actions were inappropriate. We find this implication--that a court cannot, sua sponte, deny a motion to remove a case for lack of jurisdiction-- to be completely unfounded, without any support, and having no place, as a collateral attack, in this disciplinary proceeding. We therefore reject entirely Respondent's argument on this point.
 
III.

   In determining the proper sanction for Respondent's misconduct, we note that it is well settled that
 
"the purpose of disciplinary proceedings against an attorney is to protect the public rather than to punish the erring attorney." Attorney Grievance Commission v. Hamby, 322 Md. 606, 611, 589 A.2d 53, 56 (1991))). "The public is protected when sanctions are imposed that are commensurate with the nature and gravity of the violations and the intent with which they were committed." Attorney Grievance Commission v. Awuah, 346 Md. 420, 435, 697 A.2d 446, 454 (1997). The severity of the sanction depends upon the facts and circumstances of the case before this Court.  Hamby, 322 Md. at 611, 589 A.2d at 56.[***45] Imposing a sanction protects the public interest "because it demonstrates [*32] to members of the legal profession the type of conduct which will not be tolerated." Id. 
 
See Attorney Grievance Comm'n v. Mooney, 359 Md. at 96, 753 A.2d at 38; Attorney Grievance Comm'n v. Brown, 353 Md. 271, 295, 725 A.2d 1069, 1080 (1999) (quoting 
 
Attorney Grievance Comm'n v. Ober, 350 Md. 616, 631, 714 A.2d 856, 864 (1998)).

   Reminding us that Respondent has been the recipient of an unpublished reprimand, by Order of this Court dated 3 February 1999 for violation of MRPC 1.3, 1.4, and 8.4(d) as the result of a reciprocal discipline case from the District of Columbia, Bar Counsel recommends that Respondent be suspended indefinitely from the practice of law for the misconduct involved in the present case. Respondent counters that disciplinary action is not warranted when, "if anything, this is a case of over-zealous representation."

   In Brown, 353 Md. at 281, 725 A.2d at 1073, we agreed with the hearing judge's findings that Brown violated MRPC 1.3, 1.4, 3.3, 5.5, 7.1, and 8.4. Despite mitigating factors, n19 such as the attorney[***46] having [**967]"reduced his case load since the complaints were filed, sought a mentor on case management procedures [], changed his office mailing procedures, and sought counseling for his 'tendencies' to procrastinate," we ordered an indefinite suspension, with the right to reapply for admission in one year. Brown, 353 Md. at 296, 725 A.2d at 1081.

n19 Respondent presses no cognizable mitigating circumstances in the present case.

   In Mooney, the hearing judge found that Mooney provided incompetent representation when he failed, among other things, to appear in court for a client's trial and to maintain communications with his clients.  359 Md. 64, 67, 69-70, 753 Md. at 21, 23, 25. Upholding the conclusions that Mooney violated MRPC 1.1, 1.3, 1.4, 5.1, 5.3, and 8.4, we suspended Mooney indefinitely from the practice of law.  359 Md. at 97, 753 A.2d at 39.
[*33]  
In Attorney Grievance Comm'n v. Cohen, an attorney who was the subject of two complaints, one involving[***47] a custody dispute and the other a bankruptcy proceeding, was found to have violated MRPC 1.1, 1.3, 1.4, 8.1(a), 8.1(c), and 8.1(d).  Cohen, 361 Md. 161, 760 A.2d 706, 2000 Md. LEXIS 670, at *9-10, *24-25 (Md. 2000). On that record, we determined that Respondent possessed "very little or no appreciation of the seriousness of his misconduct" and that his "pattern of behavior demonstrates Respondent's inability to conform his conduct within the bounds of the Maryland Lawyer's Rules of Professional Conduct." Cohen, 361 Md. at 178, 2000 Md. LEXIS 670, at *30. Noting that we had previously imposed a 90-day suspension for the attorney's prior violations of MRPC 4.4 and 8.4(d), we ordered an indefinite suspension, with the right to reapply for admission in six months.  Cohen, 361 Md. 161, 2000 Md. LEXIS 670, at *31, 760 A.2d 706.
 
Bar Counsel argues that its recommendation is warranted based upon Judge North's findings that Respondent practiced law in a manner that was "disorganized," "unprepared," "neglectful," and "increasingly uncommunicative," "prejudicial to the administration of justice," and in "contravention of the law" and of the "specific[***48] instructions of his client." We agree. Consistent with Mooney, Cohen, and Brown, we order an indefinite suspension for Respondent, for we find that to be the appropriate sanction in light of Respondent's conduct here and of the prior reprimand.
 
IT IS SO ORDERED; RESPONDENT SHALL PAY ALL COSTS AS TAXED BY THE CLERK OF THIS COURT; INCLUDING THE COSTS OF ALL TRANSCRIPTS, PURSUANT TO MARYLAND RULE 16-715(c), FOR WHICH SUM JUDGMENT IS ENTERED IN FAVOR OF THE ATTORNEY GRIEVANCE COMMISSION OF MARYLAND AGAINST DUSHAN S. ZDRAVKOVICH; RESPONDENT'S SUSPENSION SHALL COMMENCE THIRTY DAYS FROM THE FILING OF THIS OPINION. 

ELVIS DAVID LEWIS v. STATE OF MARYLAND 
No. 99, September Term, 2000
 
COURT OF APPEALS OF MARYLAND
 
361 Md. 527; 762 A.2d 97; 2000 Md. LEXIS 694

 November  15, 2000, Filed

   PRIOR HISTORY:  [**1]

   Cetiorari to the Court of Special Appeals (Circuit Court for  Anne Arundel  County). Clayton Greene, Jr., JUDGE.

COUNSEL: SUBMITTED BY: Elvis David Lewis of Staffore, Virginia, PETITIONER.
 
SUBMITTED BY: Gary E. Bair, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General of Maryland), FOR RESPONDENT.

JUDGES: SUBMITTED TO: Bell, C.J.; Eldridge, *Rodowsky, Raker, Wilner, Cathell, and Harrell, JJ.

*Rodowsky, J., now retired, participated in the hearing and conference of this case while an active member of this Court; after being recalled pursuant to the Constitution, Article IV, Section 3A, he also participated in the decision and adoption of this opinion.

OPINIONBY: ROBERT M. BELL

OPINION: [*527]

   PER CURIAM ORDER

   The Court having considered and granted the petition for writ of certiorari in the above-captioned case, it is this 15th day of November, 2000,

   ORDERED, by the Court of Appeals of Maryland, that the judgment of the Court of Special Appeals of Maryland be, and it is hereby, vacated, and the case is remanded to the Court of Special Appeals with directions to vacate the judgment of the Circuit Court for Anne Arundel County and to remand the [*528] case to the Circuit[**2] Court for Anne Arundel County for a hearing. See Skok v. State, 361 Md. 52, 760 A.2d 647, 2000 Md. LEXIS 668 (No. 22, September Term, 1999, filed October 10, 2000). Costs to be paid by the Respondent.

   /s/ ROBERT M. BELL

   CHIEF JUDGE 

Schuk v. RJG 
Pet. Docket No. 399, September Term, 2000
 
COURT OF APPEALS OF MARYLAND
 
361 Md. 435; 761 A.2d 933; 2000 Md. LEXIS 745

 November  13, 2000, Decided

NOTICE: 

  [*1]  DECISION WITHOUT PUBLISHED OPINION 

PRIOR HISTORY:  (No. C-2000-60481, Circuit Court for  Anne Arundel  County).

OPINION: Petition for Writ of Certiorari denied. 

Annapolis v. Colbert 
Pet. Docket No. 354, September Term, 2000
 
COURT OF APPEALS OF MARYLAND
 
361 Md. 231; 760 A.2d 1106; 2000 Md. LEXIS 880

 October  13, 2000, Decided

NOTICE: 

  [*1]  DECISION WITHOUT PUBLISHED OPINION 

PRIOR HISTORY:  (No. C-2000-61044, Circuit Court for  Anne Arundel  County).

OPINION: Petition for Writ of Certiorari denied. 

Risk Management v. Brown 
Pet. Docket No. 353, September Term, 2000
 
COURT OF APPEALS OF MARYLAND
 
361 Md. 232; 760 A.2d 1107; 2000 Md. LEXIS 906

 October  13, 2000, Decided

NOTICE: 

  [*1]  DECISION WITHOUT PUBLISHED OPINION 

PRIOR HISTORY:  (No. C-2000-61050, Circuit Court for  Anne Arundel  County).

OPINION: Petition for Writ of Certiorari denied. 

DARRIS ALARIC WARE v. STATE OF MARYLAND 
No. 96, September Term, 1999
 
COURT OF APPEALS OF MARYLAND
 
360 Md. 650; 759 A.2d 764; 2000 Md. LEXIS 595

 September  14, 2000, Filed

   SUBSEQUENT HISTORY: Certiorari Denied January 16, 2001, Reported at: 2001 U.S. LEXIS 751.

PRIOR HISTORY:  [***1] Review of Death Penalty - Circuit Court for  Anne   Arundel  County.  Criminal No. K-98-01096. Raymond G. Thieme, Jr., JUDGE.

DISPOSITION: JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AFFIRMED. 
CASE SUMMARY 

PROCEDURAL POSTURE:  Defendant filed direct appeal under Md. Code Ann. § 414 (1957, 1996 Repl. Vol., 1999 Supp.) from his convictions of two counts of first degree murder and related handgun violations and death sentence in the Circuit Court for Anne Arundel County (Maryland).

OVERVIEW:  On retrial, a jury found defendant guilty of two counts of murder and two counts of use of a handgun in the 1993 shooting deaths of defendant's former girlfriend and another. A sentencing proceeding before the same jury was conducted pursuant to under Md. Code Ann. § 413 (1957, 1996 Repl. Vol., 1999 Supp.) and defendant was sentenced to death. The appellate court affirmed, holding, inter alia, that the record supported the trial judge's decision to excuse the prospective jurors for cause, that the trial court did not err in failing to strike, sua sponte, the entire jury panel, that admission of defendant's statements was probative of defendant's motive to kill; and that evidence that defendant often carried a gun was admissible as habit under Md. R. Evid. 5-406. The appellate court further held that under its mandatory review, the sentence of death was not imposed under the influence of passion, prejudice, or any other arbitrary factor and the evidence supported the jury's findings that the aggravating circumstances outweigh the mitigating circumstances.

OUTCOME:  Convictions and death sentence affirmed because, having reviewed the entire record, the appellate court held that the sentence of death to be factually substantiated and not imposed under the influence of passion or any other arbitrary factor.

CORE TERMS:  sentencing, juror, prosecutor, murder, death penalty, youthful, reversal, gun, credibility, prosecutorial misconduct, double jeopardy, sentence, defense counsel, sentenced, mistrial, mitigating circumstances, admissible, sua sponte, habit, retrial, mitigating circumstance, death sentence, objected, probative value, okay, competency, excused, chronological age, trier of fact, victim impact evidence

CORE CONCEPTS -  

Criminal Law & Procedure: Juries & Jurors: Challenges for Cause
Criminal Law & Procedure: Appeals: Reversible Error
If disqualification for cause is improperly denied, but the accused has not exercised all allowable peremptory challenges, there is no reversible error.

Criminal Law & Procedure: Juries & Jurors: Challenges to Jury Venire: Bias & Prejudice
A claimed bias of a prospective juror unsuccessfully challenged for cause does not influence the verdict if the prospective juror did not serve on the jury.

Constitutional Law: Criminal Process: Impartial Jury
Criminal Law & Procedure: Juries & Jurors: Challenges to Jury Venire: Death Penalty
U.S. Const. amend. VI and XIV require that the jury at a capital sentencing proceeding be fair and impartial.

Criminal Law & Procedure: Juries & Jurors: Challenges for Cause
The proper standard for determining when a prospective juror may be excluded for cause based on his or her views on the death penalty is whether the juror's views would prevent or substantially impair the performance of his or her duties as a juror in accordance with the court's instructions and the juror's oath.

Criminal Law & Procedure: Juries & Jurors: Challenges for Cause
Criminal Law & Procedure: Appeals: Standards of Review: General Rules
The decision as to whether to excuse a juror for cause is ordinarily left to the sound discretion of the trial judge and will not be disturbed on appeal except for an abuse of discretion.

Criminal Law & Procedure: Juries & Jurors: Challenges for Cause
Criminal Law & Procedure: Appeals: Standards of Review: General Rules
Deference is to be paid to trial judge's decision to strike juror for cause because the trial court is in the best position to assess a juror's state of mind, by taking into consideration the juror's demeanor and credibility.

Criminal Law & Procedure: Juries & Jurors: Challenges to Jury Venire
See Md. R. Crim. Causes 4-312(a).

Constitutional Law: Criminal Process: Impartial Jury
A criminal defendant's right to a fair and impartial jury is guaranteed under U.S. Const. amends. VI and XIV and Amendments and Md. Const. Declaration of Rights art.

Constitutional Law: Criminal Process: Impartial Jury
Criminal Law & Procedure: Juries & Jurors: Challenges for Cause
Juror knowledge of a case alone does not make the trial unfair. It is not required that the jurors be totally ignorant of the facts and issues involved. In these days of swift, widespread and diverse methods of communication, an important case can be expected to arouse the interest of the public in the vicinity, and scarcely any of those best qualified to serve as jurors will not have formed some impression or opinion as to the merits of the case. This is particularly true in criminal cases. To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror's impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.

Constitutional Law: Criminal Process: Impartial Jury
Criminal Law & Procedure: Juries & Jurors: Challenges for Cause
The constitutional standard of fairness requires that a defendant have a panel of impartial, indifferent jurors. Qualified jurors need not, however, be totally ignorant of the facts and issues involved. At the same time, the juror's assurances that he is equal to the task of laying aside his impression or opinion and rendering a verdict based on the evidence presented in court cannot be dispositive of the accused's rights, and it remains open to the defendant to demonstrate the actual existence of such an opinion in the mind of the juror as will raise the presumption of partiality. It is important to distinguish between mere familiarity with petitioner or his past and an actual predisposition against him.

Evidence: Relevance: Confusion, Prejudice & Waste of Time
See Md. R. Evid. 5-403.

Evidence: Relevance: Prior Acts, Crimes & Wrongs
See Md. R. Evid. 5-404(b).

Criminal Law & Procedure: Appeals: Standards of Review: General Rules
Evidence: Procedural Considerations: Rulings on Evidence
The trial court is afforded great deference in its rulings on admissibility of evidence and that rulings as to relevancy will not be disturbed on appeal unless there is a clear abuse of discretion.

Criminal Law & Procedure: Appeals: Reviewability: Waiver
Criminal Law & Procedure: Appeals: Right to Appeal
Evidence: Relevance: Prior Acts, Crimes & Wrongs
A defendant waives the right to argue on appeal that testimony was inadmissible bad acts evidence when the only objection at trial was on grounds of relevancy.

Evidence: Relevance: Routine Practices
Evidence of a person's habit is explicitly deemed relevant by Md. R. Evid. 5-406 to prove action in conformity with the habit.

Evidence: Relevance: Routine Practices
Evidence of the habit of a person or of the routine practice of an organization is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.

Evidence: Relevance: Routine Practices
Evidence that a person has a habit of doing something is relevant to show that the person engaged in the conduct on a particular occasion.
 
Evidence: Witnesses: Opinion on Ultimate Issue
It is the law of Maryland that a witness, expert or otherwise, may not give an opinion on whether he believes a witness is telling the truth. Testimony from a witness relating to the credibility of another witness is to be rejected as a matter of law.

Evidence: Witnesses: Opinion on Ultimate Issue
Criminal Law & Procedure: Juries & Jurors: Province of Court & Jury
In a criminal case tried before a jury, a fundamental principle is that the credibility of a witness and the weight to be accorded the witness' testimony are solely within the province of the jury. Therefore, the general rule is that it is error for the court to make remarks in the presence of the jury reflecting upon the credibility of a witness. It is also error for the court to permit to go to the jury a statement, belief, or opinion of another person to the effect that a witness is telling the truth or lying.

Evidence: Relevance: Relevant Evidence
Whether a witness on the stand personally believes or disbelieves testimony of a previous witness is irrelevant, and questions to that effect are improper, either on direct or cross-examination.

Criminal Law & Procedure: Appeals: Standards of Review: Harmless & Invited Errors
Error is harmless beyond a reasonable doubt when the appellate court is satisfied that there is no reasonable possibility that the evidence complained of may have contributed to the rendition of the guilty verdict.

Criminal Law & Procedure: Trials: Closing Arguments: Fair Comment & Fair Response
Criminal Law & Procedure: Trials: Closing Arguments: Reference to Evidence Not Admitted
As a general rule, attorneys have great leeway in closing arguments. Attorneys are permitted to comment on the evidence and to state all reasonable inferences that may reasonably be drawn from the evidence. This wide latitude, however, is not unlimited and does not include the right to discuss facts not in evidence. On the other hand, discussing facts not in evidence is not necessarily grounds for reversal.

Criminal Law & Procedure: Trials: Closing Arguments: Inflammatory Statements
Criminal Law & Procedure: Appeals: Standards of Review: General Rules
Not every improper remark necessarily mandates reversal, and what exceeds the limits of permissible comment depends on the facts in each case. Reversal is only required where it appears that the remarks of the prosecutor actually misled the jury or were likely to have misled or influenced the jury to the prejudice of the accused. This determination of whether the prosecutor's comments were prejudicial or simply rhetorical flourish lies within the sound discretion of the trial court. On review, an appellate court should not reverse the trial court unless that court clearly abused the exercise of its discretion and prejudiced the accused.

Criminal Law & Procedure: Appeals: Prosecutorial Misconduct
Criminal Law & Procedure: Appeals: Reversible Error
Criminal Law & Procedure: Appeals: Standards of Review: General Rules
 The permissible scope of closing argument is a matter left to the sound discretion of the trial court. The exercise of that discretion will not constitute reversible error unless clearly abused and prejudicial to the accused.

Criminal Law & Procedure: Appeals: Standards of Review: General Rules
Evidence: Witnesses: Examination & Presentation of Evidence
Trial judges have broad discretion in determining the order of presentation of evidence.

Evidence: Witnesses: Examination & Presentation of Evidence
See Md. R. Evid. 5-611(a).

Criminal Law & Procedure: Appeals: Standards of Review: General Rules
Evidence: Witnesses: Examination & Presentation of Evidence
The discretion to vary the usual order of proof is well within the trial court's discretion.

Criminal Law & Procedure: Sentencing: Capital Punishment: Mitigating Circumstances
A jury should not be precluded from considering as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.

Criminal Law & Procedure: Sentencing: Imposition of Sentence
Criminal Law & Procedure: Sentencing: Capital Punishment: Cruel & Unusual Punishment
Victim impact evidence is admissible during capital sentencing and does not violate U.S. Const. amend. VIII. Victim impact evidence is simply another form or method of informing the sentencing authority about the specific harm caused by the crime in question, evidence of a type long considered by sentencing authorities. The sentencing authority, however, may not consider statements of the victim's family that amount to an opinion regarding the appropriate sentence to be imposed upon the defendant.

Criminal Law & Procedure: Sentencing: Imposition of Sentence
Criminal Law & Procedure: Sentencing: Capital Punishment: Aggravating Circumstances
The opinion of a relative of a victim is irrelevant to the jury's determination of whether the death penalty should be impose on the grounds that such testimony is calculated to incite arbitrary response from the jury.

Criminal Law & Procedure: Sentencing: Capital Punishment: Mitigating Circumstances
Md. Code Ann. § 413(g) (1957, 1997 Repl. Vol., 1999 Supp.) enumerates seven statutory mitigators, and an eighth "catch-all" provision.

Criminal Law & Procedure: Sentencing: Capital Punishment: Mitigating Circumstances
See Md. Code Ann. § 413(g) (1957, 1997 Repl. Vol., 1999 Supp.).

Criminal Law & Procedure: Sentencing: Capital Punishment: Mitigating Circumstances
The catch-all mitigator, as provided under Md. Code Ann. § 413(g)(8) (1957, 1997 Repl. Vol., 1999 Supp.), is anything relating to the defendant or to the crime which causes the jury or any of its individual members to believe that death may not be appropriate.

Criminal Law & Procedure: Appeals: Standards of Review: General Rules
Criminal Law & Procedure: Evidence: Admission, Exclusion & Preservation
Criminal Law & Procedure: Sentencing: Capital Punishment: Aggravating Circumstances
The permissible scope of victim impact testimony lies within the sound discretion of the presiding judge, as limited by Md. Code Ann. § 413(c)(1)(v) (1957, 1996 Repl. Vol.). Admissible evidence is any evidence that the court deems of probative value and relevant to sentence, provided the defendant is accorded a fair opportunity to rebut any statements. Md. Code Ann. § 413(c)(1)(v) (1957, 1996 Repl. Vol.).

Criminal Law & Procedure: Evidence: Admission, Exclusion & Preservation
Criminal Law & Procedure: Sentencing: Capital Punishment: Aggravating Circumstances
See Md. Code Ann. § 413(c)(1) (1957, 1996 Repl. Vol.).

Criminal Law & Procedure: Appeals: Reviewability: Waiver
Where there has been no timely objection to the giving of or failure to give an instruction, the issue is not preserved. Md. R. Crim. Causes 4- 325 (e).

Criminal Law & Procedure: Sentencing: Capital Punishment: Mitigating Circumstances
It is well settled in Maryland that youthful age as used in Md. Code Ann. § 413(g)(5) (1957, 1997 Repl. Vol., 1999 Supp.) includes considerations other than mere chronological age, but instructions on mitigating circumstances for purposes of capital sentencing proceedings are not excepted from the general rule that a party must request a specific instruction before a court is required to give it.

Criminal Law & Procedure: Jury Instructions: Objections
Criminal Law & Procedure: Sentencing: Capital Punishment: Mitigating Circumstances
The constitutional standard for reviewing an allegedly ambiguous jury instruction is whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence.

Criminal Law & Procedure: Jury Instructions: Particular Instructions
A court's obligation to give any particular instruction in a criminal case is governed by Md. R. Crim. Causes 4-325.

Criminal Law & Procedure: Jury Instructions: Requests to Charge
See Md. R. Crim. Causes 4-325(c).

Criminal Law & Procedure: Jury Instructions: Objections
See Md. R. Crim. Causes 4-325(e).

Criminal Law & Procedure: Jury Instructions: Requests to Charge
Criminal Law & Procedure: Jury Instructions: Objections
A trial court does not err when it omits an instruction or, further amplification of an instruction, that was never requested.

Criminal Law & Procedure: Sentencing: Capital Punishment: Mitigating Circumstances
In capital sentencing proceedings, the sentencer may not be precluded from considering, and may not refuse to consider, any constitutionally relevant mitigating evidence, and that the State may structure the jury's consideration of mitigation so long as it does not preclude the jury from giving effect to it. 

Criminal Law & Procedure: Pretrial Motions: Competency to Stand Trial
Criminal defendants have a due process right under U.S. Const. amend. XIV not to be tried when they are incompetent. It has long been accepted that a person whose mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense may not be subjected to a trial.

Criminal Law & Procedure: Pretrial Motions: Competency to Stand Trial
See Md. Code Ann. Health-Gen.  § 12-103(a) (1982, 1994 Repl. Vol., 1999 Supp.).

Criminal Law & Procedure: Pretrial Motions: Competency to Stand Trial
Md. Code Ann. Health-Gen.  § 12-101(e) (1982, 1994 Repl. Vol., 1999 Supp.) defines "incompetent to stand trial" as not able: (1) to understand the nature or object of the proceeding; or (2) to assist in one's defense. A defendant must, in other words, have present ability to consult with his lawyer with a reasonable degree of rational understanding--and a rational as well as factual understanding of the proceedings against him.

Criminal Law & Procedure: Pretrial Motions: Competency to Stand Trial
A defendant is presumed to be competent to stand trial. However, Md. Code Ann. Health-Gen.  § 12-103(a) (1982, 1994 Repl. Vol., 1999 Supp.) places a duty on the trial court if, during trial, a defendant appears to the court to be incompetent or the defendant alleges incompetency to determine whether the defendant is in fact competent to stand trial. The court's duty is triggered in one of three ways: (1) upon motion of the accused; (2) upon motion of the defense counsel; or (3) upon a sua sponte determination by the court that the defendant may not be competent to stand trial. In addition, a finding of competency to stand trial does not automatically result in a conclusion that an accused is also competent to waive substantial rights, such as the right to plead not guilty, the right to a jury trial, and the right to assistance of counsel.

Criminal Law & Procedure: Trials: Defendant's Rights: Right to Jury Trial
Criminal Law & Procedure: Sentencing: Capital Punishment
Under Md. Code Ann. § 413(b) (1957, 1997 Repl. Vol., 1999 Supp.) sentencing shall be by jury and, if waived, before the court alone. Whether a defendant is to be sentenced by the court or the jury is a decision for the defendant. Md. R. Crim. Causes 4-246.

Criminal Law & Procedure: Trials: Defendant's Rights: Right to Jury Trial
Criminal Law & Procedure: Sentencing: Capital Punishment
See Md. Code Ann. § 413(b) (1957, 1997 Repl. Vol., 1999 Supp.).

Criminal Law & Procedure: Pretrial Motions: Competency to Stand Trial
 Where there is no independent reason to question or doubt defendant's competency, no hearing or inquiry is required.

Criminal Law & Procedure: Counsel: Effective Assistance: Sentencing
An ineffective assistance of counsel claim is more properly raised in post-conviction proceedings.

Criminal Law & Procedure: Pretrial Motions: Continuances
It is settled that the decision whether to grant a postponement of sentencing is within the sound discretion of the trial judge.

Constitutional Law: Procedural Due Process: Double Jeopardy
The Double Jeopardy Clause of U.S. Const. amend. V protects against successive prosecution as well as cumulative punishment and is applicable to the States through U.S. Const. amend. XIV. Even though the Maryland Constitution has no express double jeopardy provision, there is protection against it under Maryland common law.

Constitutional Law: Procedural Due Process: Double Jeopardy
See U.S. Const. amend. V.

Constitutional Law: Procedural Due Process: Double Jeopardy
Criminal Law & Procedure: Pretrial Motions: Double Jeopardy: Attachment of Double Jeopardy Protection
A retrial following reversal upon a defendant's successful appeal has always been permitted under U.S. Const. amend. V, with the exception of a reversal based upon the insufficiency of the evidence.

Criminal Law & Procedure: Pretrial Motions: Double Jeopardy: Attachment of Double Jeopardy Protection
In the mistrial/retrial situation, the general rule is that the protection against double jeopardy is waived when a defense-requested mistrial is granted, unless, under a very narrow exception, the mistrial motion was precipitated by judicial overreaching or deliberate prosecutorial misconduct intended to provoke or goad the defendant into making the motion. Circumstances under which such a defendant may invoke the bar of double jeopardy in a second effort to try him are limited to those cases in which the conduct giving rise to the successful motion for a mistrial was intended to provoke the defendant into moving for a mistrial.

Criminal Law & Procedure: Pretrial Motions: Double Jeopardy: Attachment of Double Jeopardy Protection
The Double Jeopardy Clause, U.S. Const. amend. V, imposes no limitation upon the power of the government to retry a defendant who has succeeded in persuading a court to set his conviction aside, unless the conviction has been reversed because of the insufficiency of the evidence.

Criminal Law & Procedure: Discovery & Inspection: Brady Materials
ABrady violation has been treated consistently as a violation of an accused's due process right to a fair trial where the failure undermined confidence in the trial's outcome. The remedy for a Brady/due process violation is the reversal of the judgment of conviction and remand of the case for further proceedings, including retrial.

COUNSEL: ARGUED BY: Michael R. Braudes, Assistant Public Defender (Stephen E. Harris, Public Defender and Daniel H. Weiss, Assistant Public Defender, on brief) all of Baltimore, MD, FOR APPELLANT.
 
ARGUED BY: Annabelle L. Lisic, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General of Maryland, on brief) all of Baltimore, MD, FOR APPELLEE. 

JUDGES: ARGUED BEFORE Bell, C.J.; Eldridge, Rodowsky, Raker, Wilner, Cathell, and Harrell, JJ. Opinion by Raker, J. Dissenting opinion by Bell, C.J.

OPINIONBY: Raker

OPINION: [**769] [*660]
 
Opinion by Raker, J.
 
Bell, C.J., dissents

   Appellant Darris Alaric Ware was tried by a jury from July 9 to July 22, 1999, in the Circuit Court for Anne Arundel County, and convicted of two counts of first degree murder and related handgun violations. This case is a direct appeal from a sentence of death. n1 See Maryland Code (1957, 1996 Repl. Vol., 1999 Supp.) Art. 27, § 414. n2 We find no errors that [*661] tainted the proceedings. Accordingly, we affirm the convictions and the sentence of death.

n1 In 1995, Appellant was convicted by a jury in the Circuit Court for Howard County of two counts of first degree murder for the murders of Bettina Krista Gentry (Kristi) and Cynthia Allen. The same jury sentenced Ware to death. This Court reversed the convictions and sentence upon direct review.  Ware v. State ( Ware I), 348 Md. 19, 702 A.2d 699 (1997).

[***2] 

n2 Unless noted otherwise, all subsequent statutory references shall be to Maryland Code (1957, 1996 Repl. Vol., 1999 Supp.) Art. 27.

 
I.

   Ware and Kristi Gentry n3 met and began dating in 1991. Their relationship became serious, and Ware moved into the house in Severn where Kristi lived with her mother, Nina Gentry, in August of 1993. In September of 1993, however, according to Nina Gentry's testimony, the relationship became strained, and Ware moved out.

 n3 In Ware I, we noted that Ms. Gentry was referred to throughout the record as "Kristi." The transcripts from the second trial consistently spell the name as "Christie." No explanation for the discrepancy appears in the record. For consistency, we adhere to the spelling we used originally.

   When we have occasion to refer to several members of the same family, we shall use first names in order to distinguish them from one another.

   On December 30, 1993, Nina Gentry[***3] returned home from work at midday and found Kristi, then 19, and her friend Cynthia Allen, 22, lying on the floor in the house. Each had been shot in the chest and at point-blank range in the head. Kristi was dead, and Cynthia died later in the hospital. Projectiles fired from a .380 caliber gun were found in the victims' bodies, and .380 caliber shell casings were found on the floor near the victims.

   Most of the critical testimony in the case concerned events occurring the morning of the day of the murders, a few hours before Nina Gentry discovered the victims. At approximately 9:00 a.m., Kristi's friend Adrian Washington telephoned Kristi at the house. Adrian testified that Kristi sounded scared and that she abruptly hung up the phone twice. He then received a call from an angry male caller who quickly hung up; Ware's statement to the police indicated that Ware used caller ID to return Adrian's call, and told Adrian not to [**770] call the house again. Then, Adrian received a call from Kristi, during which he heard Kristi say, "Darris, I can't breathe. Get off me. You're hurting me."

   [*662]

   After this call, Adrian immediately called his brother Thomas Washington, who in turn called the Gentrys' [***4] house. Thomas spoke to Ware, and the two argued. Thomas told Ware to stop what he was doing to Kristi, and Ware became angry. Ware asked Thomas whether he "was bulletproof" and threatened to "get [him] and [his] punk-ass brother."

   After this conversation, at about 10:00 a.m., Thomas telephoned Kristi's brother Kevin Gentry at his place of employment in Laurel. Along with a co-worker, Kevin then drove to his mother's house, where he confronted Ware, beating him. Afterward, Kevin testified, Ware left the house, went to his car, retrieved a gun and pointed it at Kevin, threatening to kill him. Ware subsequently drove away. When Kevin also drove away to return to work, he came upon Ware returning to the house in his car; according to Kevin, Ware stopped and got out of the car and brandished a gun, as Kevin attempted to run Ware over with his car. Ware escaped harm. Kevin then returned to work in Laurel, arriving there before 12:00 noon.

   Deborah Amrhein, a sales clerk at the On Target shooting range and sporting goods store in Severn, told police she saw Ware in the store at about lunch time on December 30. A store manager testified that one box of .380 caliber ammunition of the[***5] type and make used by the killer was sold on December 30 at about 12:10 p.m. Neighbors of the Gentrys testified that they saw Appellant arrive back at the house between 12:00 and 12:30 p.m. In his statement to the police, Ware admitted that he owned a .380 caliber handgun. The murder weapon was never found.

   At about 12:00 noon, Edward Anderson, an inmate at the Maryland House of Corrections Annex in Jessup and a friend of Kristi, telephoned the house. He spoke to Cynthia, who told him that Ware was in the house and that Kristi and Ware were arguing. Anderson heard Kristi screaming. Then, Anderson heard three gunshots, followed by silence and the sound of someone hanging up the phone. Prison records indicated that this call terminated at 12:31 p.m. Anderson then called neighbors of the Gentrys and asked them to check on [*663] the house; neighbor Clyburn Cunningham, Jr. went to the house and rang the doorbell. There was no answer.

   Nina Gentry had spoken to Kevin Gentry earlier in the morning when he came, upset, to see her at her workplace, after his encounter with Ware. Some time after noon, she decided to leave work and go to the house. After finding the victims, she called 911. Paramedics[***6] and police came to the house. While the police were in the house, Ware called, identified himself, and spoke to police officers. Ware asked if Kristi was there. A police officer asked Ware to come to the house; the officer then departed to look for Ware at an address where he was believed to live. The officer encountered Ware a short distance away, driving toward the house, and arrested him. We will supply additional facts as necessary in discussing the several issues.

   Following this Court's reversal of Ware's convictions, he was retried before a jury in the Circuit Court for Anne Arundel County on July 9 to July 22, 1999 and found guilty of two counts of first-degree murder and two counts of use of a handgun in the commission of a felony. A sentencing proceeding before the same jury was conducted pursuant to § 413, and Ware was sentenced to death pursuant to the jury's determination. On August 13, 1999, the court sentenced Ware to a term of ten years for the two handgun convictions, to be served consecutively.

   II. Jury Selection Issues
 
Appellant argues that the trial court committed reversible error during jury selection. He makes three arguments: (a) that the trial judge[***7] committed reversible error in denying his motions to strike six prospective jurors for cause; (b) [**771] that the trial judge committed reversible error in striking two jurors for cause; and (c) that the trial judge committed reversible error in failing to strike, sua sponte, the entire venire panel on the ground that it had been tainted by exposure to media coverage of the case. The State argues that the trial court did not abuse its discretion in ruling on the motions to excuse for cause. As to the court's failure to strike the entire panel, the [*664] State maintains that, because this issue was never addressed to the trial court, the issue has not been preserved for appellate review.
 
A. Denial of Defense Motions to Strike for Cause

   The jury selection proceeded in three stages. We glean from the record that, sometime before the trial began, prospective jurors completed a juror questionnaire. n4 The day before the trial began, the prospective jurors were brought before the judge individually for voir dire questioning. Several venirepersons were excused for cause at this time on the basis of the answers to the questionnaires alone. Each party moved to strike certain jurors for cause; [***8]some of these motions were granted, while others were denied or reserved. Finally, on the day of trial, the judge allowed renewal of motions to strike for cause that he had previously denied or reserved. The court then proceeded to select the jury, and the parties exercised their peremptory challenges. The defense exercised nineteen of the twenty peremptory challenges permitted by Maryland Rule 4-313(a)(2), and the State exercised the ten challenges permitted by the rule. Each side exhausted its allotted strikes for the alternates.

n4 The court and the parties repeatedly refer to a questionnaire which had been sent pre-trial to the prospective jurors. Because the court concluded that some of the questions were vague or inartfully drawn, the court engaged in individual voir dire of each prospective juror. We have been unable to locate in the record a copy of the questionnaire.

   Appellant argues that the trial court erred in failing to excuse six prospective jurors for cause, specifically, William Cooper, Sean Haynie, [***9]Thomas Leising, Joseph Satterthwait, James McLaughlin, and Sirkka Mitchell. As to Mitchell, Leising, and McLaughlin, the answer is simple. The record reflects that the trial court granted the defense motions to strike for cause. The trial judge denied the motions initially, but, when Appellant renewed his motions to strike for cause during the final stage of jury selection, the court excused these individuals. The remaining three prospective jurors, Cooper, Haynie, and Satterthwait, did not serve on the jury; [*665] Appellant exercised a peremptory challenge to excuse each juror.

   We need not decide whether the trial judge erred in declining to excuse prospective jurors Cooper, Haynie, or Satterthwait because, even if there was error, it was harmless beyond a reasonable doubt. See Dorsey v. State, 276 Md. 638, 659, 350 A.2d 665, 678 (1976). As noted, Appellant did not exhaust his peremptory challenges. "If disqualification for cause is improperly denied, but the accused has not exercised all allowable peremptory challenges, there is no reversible error." White v. State, 300 Md. 719, 729, 481 A.2d 201, 205 (1984). Additionally, none of the challenged[***10] prospective jurors served on the jury; consequently, it is clear beyond a reasonable doubt that any alleged bias and/or knowledge of the case could not have influenced the verdict either as to the conviction or as to the sentence. Id. at 728, 481 A.2d at 205 (stating that "the claimed bias of [a prospective juror unsuccessfully challenged for cause] did not influence the verdict because [the prospective juror] did not serve on the jury").
 
B. Granting of Prosecution Motions to Strike for Cause

   Appellant argues that the trial court should not have excused prospective [**772]jurors Marsha Santo and Donald Rabb for cause. In the case of Rabb, Appellant asserts that he should not have been excused because he indicated that he could put aside his personal reservations about the death penalty and deliberate as required by law. In the case of Santo, Appellant argues that the court erred in not permitting defense counsel to ask rehabilitative questions, and, as a result, the court had insufficient information to determine whether the prospective jurors could follow the law.

   Santo and Rabb indicated that they would be unwilling to impose the death penalty. Rabb told[***11] the court that he absolutely would not impose the death penalty "where a person went off and there was a love interest involved." The State represents in its brief that Santo "appeared to indicate on her questionnaire that the death penalty should be imposed [*666] for every first degree murder, [but] when questioned, she responded that she did not believe she could impose the death penalty under any circumstances."

   The Sixth and Fourteenth Amendments to the United States Constitution require that the jury at a capital sentencing proceeding be fair and impartial. See, e.g., Morgan v. Illinois, 504 U.S. 719, 728, 112 S. Ct. 2222, 119 L. Ed. 2d 492 (1992); Evans v. State, 333 Md. 660, 668, 637 A.2d 117, 121 (1994). The proper standard for determining when a prospective juror may be excluded for cause based on his or her views on the death penalty is whether the juror's views would prevent or substantially impair the performance of his or her duties as a juror in accordance with the court's instructions and the juror's oath. See Wainwright v. Witt, 469 U.S. 412, 421, 105 S. Ct. 844, 83 L. Ed. 2d 841 (1985); Evans, 333 Md. at 671, 637 A.2d at 122.[***12] The decision as to whether to excuse a juror for cause is ordinarily left to the sound discretion of the trial judge and will not be disturbed on appeal except for an abuse of discretion. See Witt, 469 U.S. at 426 (noting that deference is to be paid to trial judge's decision to strike juror for cause); Bowie v. State, 324 Md. 1, 20, 595 A.2d 448, 457 (1991) (same). The trial court is in the best position to assess a juror's state of mind, by taking into consideration the juror's demeanor and credibility.

   The responses of jurors Santo and Rabb establish that they could not consider the death penalty under any circumstances. The record supports the trial judge's decision to excuse the prospective jurors for cause based on their opposition to capital punishment. Moreover, as to prospective juror Santo, Appellant acquiesced in the ruling. n5 See Dietz v. Dietz, 351 Md. 683, 689, [**773] [*667]720 A.2d 298, 301-02 (1998); Osztreicher v. Juanteguy, 338 Md. 528, 659 A.2d 1278 (1995); Watkins v. State, 328 Md. 95, 99-100, 613 A.2d 379, 381 (1992); Rocks v. Brosius, 241 Md. 612, 630, 217 A.2d 531, 541 (1966).[***13] The trial court did not abuse its discretion and properly excused both jurors.

n5 The relevant portion of the voir dire of Santo and of the subsequent colloquy between counsel and the court follows.

   [STATE'S ATT'Y:] Okay. Is it your belief that not under any circumstances would you be able to sit on a jury and say that you believe that a person should be sentenced to death?

   MS. SANTO: No, I don't feel that I could.

    [STATE'S ATT'Y:] Not under any circumstances?

   MS. SANTO: No.
 
. [STATE'S ATT'Y:] I don't have any other questions.

   THE COURT: Would you wait outside a moment, please, ma'am.

   MS. SANTO: Uh-huh.

   [STATE'S ATT'Y:] Motion for cause.

   THE COURT: The court grants it.

   MR. WARREN: Do we even get a chance to explore whether or not she could weigh?

   THE COURT: That she what?

   MR. WARREN: If she were instructed otherwise. I didn't get a chance to explore whether or not she could--

   THE COURT: Her answer--

   MR. GUNNING: But I don't think that she would.

   MR. WARREN: Okay. You are right.
 
Appellant was represented by two attorneys, Gunning and Warren. Warren objected on the ground that if further questioning had been permitted, the witness might have stated her ability to put her personal views aside and abide by the court's instructions. Gunning obviously disagreed. Attorney Warren replied that Gunning was right, and said no more on the subject. This discussion represented agreement by Appellant's attorneys that the judge's ruling was correct. They acquiesced in the ruling.

[***14]
 
C. The Court's Failure to Strike, Sua Sponte, the Entire Panel

   Appellant next argues that the record establishes that the pool of jurors knew from media accounts that Appellant had been convicted previously and that the jurors had discussed the matter in the courthouse. He maintains that, as a result, the trial court should have struck the entire panel on its own motion. Appellant never objected to the array. Appellant argues that, either as plain error or as coming within the relaxed application of preservation requirements in capital cases, this Court should consider the issue. The State maintains that a review of the record demonstrates no basis for the court to have disqualified the entire array. The State argues that it is unrealistic to expect potential jurors in the county [*668] not to have some knowledge of the case, particularly a capital case. If counsel believed that the publicity was so pervasive and overwhelming, he could have moved for automatic removal of the case under Maryland Rule 4-254(b).
 
   Maryland Rule 4-312(a) addresses a party's challenge to the array. The rule provides as follows:

   A party may challenge the array of jurors on the ground that its members [***15]were not selected, drawn, or summoned according to law or on any other ground that would disqualify the panel as a whole. A challenge to the array shall be made and determined before any individual juror from that array is examined, except that the court for good cause may permit it to be made after the jury is sworn but before any evidence is received.

   Because defense counsel did not raise the issue at any time below, the issue is waived. We find no plain error and, accordingly, we reject Appellant's argument that the trial court should have, sua sponte, excused the entire panel. 

   As we have indicated, it appears that a questionnaire was sent to all prospective jurors. On the questionnaire, the prospective jurors were asked about their knowledge of the case from news reports and other sources. It appears that an affirmative questionnaire answer indicating knowledge of the case prompted specific inquiry by the trial court.

   Appellant points to the voir dire testimony of fourteen prospective jurors to support his argument that the entire panel was tainted. Upon questioning, prospective jurors Satterthwait, Norwood, Hendricks, Brown, Wilbur, Mitchell, and Bolick said that they[***16] had read something in the local newspaper about the case, that Ware had been tried previously, and the conviction reversed. Prospective jurors Pierce, Vanscoy, Matulevich, Stummer, and Levesque heard talk in the courthouse to the same effect. Two of these prospective jurors had heard that Appellant had been sentenced to death. All fourteen individuals stated that their knowledge would not prevent them from judging the case fairly and impartially on the basis of the evidence presented in court alone. Five of the fourteen [*669] were stricken for cause, and six others were excused on peremptory challenges. The remaining three prospective jurors, Brown, Levesque, and Vanscoy, served on the jury. Vanscoy was excused before the end of the guilt/innocence phase and was replaced by an alternate; thus, she did not participate in the deliberations or verdict. Appellant never moved to strike any of these three for cause, and, as noted above, Appellant did not exhaust his peremptory challenges.

   Appellant does not appear to be complaining that any of the fourteen jurors were not excused for cause. His complaint [**774] appears to be that, based on the voir dire of those jurors, it is evident that the entire[***17] panel was tainted and should have been disqualified. The record does not support Appellant's claim.

   A criminal defendant's right to a fair and impartial jury is guaranteed by the Sixth and Fourteenth Amendments and Article 21 of the Maryland Declaration of Rights. The Supreme Court has spoken several times to the application of this protection to criminal cases in which the venire has been exposed to pretrial publicity about the case. Juror knowledge of a case alone does not make the trial unfair:

   It is not required, however, that the jurors be totally ignorant of the facts and issues involved. In these days of swift, widespread and diverse methods of communication, an important case can be expected to arouse the interest of the public in the vicinity, and scarcely any of those best qualified to serve as jurors will not have formed some impression or opinion as to the merits of the case. This is particularly true in criminal cases. To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror's impartiality would be to establish an impossible standard. It is sufficient[***18] if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.
 
Irvin v. Dowd, 366 U.S. 717, 722-23, 81 S. Ct. 1639, 6 L. Ed. 2d 751 (1961). See also Calhoun v. State, 297 Md. 563, 580, 468 A.2d 45, 52 (1983).

   [*670]

   This same notion was expressed by the Supreme Court in Murphy v. Florida, 421 U.S. 794, 800, 95 S. Ct. 2031, 44 L. Ed. 2d 589 (1975). There, the Court set out the standard for juror impartiality in pretrial publicity cases:

   The constitutional standard of fairness requires that a defendant have a panel of impartial, indifferent jurors. Qualified jurors need not, however, be totally ignorant of the facts and issues involved. . . . At the same time, the juror's assurances that he is equal to [the task of laying aside his impression or opinion and rendering a verdict based on the evidence presented in court] cannot be dispositive of the accused's rights, and it remains open to the defendant to demonstrate the actual existence of such an opinion in the mind of the juror as will raise the presumption of partiality.
 
421 U.S. at 799-800 (citations and internal[***19] quotations marks omitted). It is important to "distinguish between mere familiarity with petitioner or his past and an actual predisposition against him." 421 U.S. at 801, n.4.

   In Maryland, we have had a number of occasions, in cases in which pretrial publicity was at issue, to state that a prospective juror is not disqualified automatically by pretrial knowledge of the case or preconceived opinions of the accused's guilt or innocence. Chief Judge Murphy, writing for the Court in Couser v. State, 282 Md. 125, 138, 383 A.2d 389, 396-97 (1978), stated:

   It is true, of course, that the due process clause of the fourteenth amendment and Article 21 of the Maryland Declaration of Rights guarantee the right to an impartial jury to an accused in a criminal case; these constitutional guarantees do not, however, insure that a prospective juror will be free of all preconceived notions relating to guilt or innocence, only that he can lay aside his impressions or opinions and render a verdict based solely on the evidence presented in the case. See Irvin v. Dowd, 366 U.S. 717, 81 S. Ct. 1639, 6 L. Ed. 2d 751 (1961); Newton v. State, 147 Md. 71, 127 A. 123 (1924); [***20]Garlitz v. State, 71 Md. 293, 18 A. 39 (1889).

   [*671]

   Applying these standards, we cannot say on the record before us that Appellant's right to a fair trial was violated by some unknown prospective jurors' purported knowledge of the case derived from pre[**775] trial publicity or discussion in the courthouse outside the courtroom. Appellant has failed to satisfy his burden to demonstrate the actual existence of such an opinion in the mind of any juror or such facts in the record as will raise a presumption of partiality. We hold that the trial court did not err in failing to strike, sua sponte, the entire jury panel.
 
III. Trial Issues
 
A. Admission of Allegedly Irrelevant and Unfairly Prejudicial Testimony

   Appellant argues that the trial court erred in admitting irrelevant and prejudicial evidence when it admitted evidence of threats made to two witnesses, Adrian and Thomas Washington, evidence that Appellant had hit Kristi previously, and evidence that Appellant carried a gun. Appellant argues that this evidence was admitted improperly because the evidence was irrelevant, and, even if relevant, its probative value was outweighed by the potential for unfair prejudice. [***21] Therefore, the evidence should have been excluded under Maryland Rule 5-403. n6 Because the evidence here at issue involves, at least arguably, some form of misconduct on the part of Appellant, Rule 5-404(b), the rule excluding so-called bad acts evidence, is also implicated. n7

n6 Rule 5-403 provides:

   Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

n7 Rule 5-404(b) reads as follows:
 
Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, common scheme or plan, knowledge, identity, or absence of mistake or accident.

   [*672]

   1. Testimony that Ware [***22]  Threatened Thomas and Adrian Washington

   On the day of the murders, Thomas Washington, who was the husband of a relative of Kristi Gentry, spoke to Ware by telephone while Ware was at the Gentrys' house. Appellant moved in limine to preclude Thomas from testifying to some statements Ware made in this telephone call. In particular, Appellant sought exclusion of Thomas's proffered statement that Ware had asked Thomas whether he "was bulletproof." Appellant argues that the evidence was irrelevant, that it was at best a threat against Thomas, and that any probative value was outweighed by the prejudice. The trial court denied the motion.

   At trial, Thomas testified, and Appellant objected:

   [THOMAS:] When we first started conversing it was pretty normal. But towards the end of our conversation it started getting more aggressive, and he started getting a little bit more boisterous with his attitude toward me, and I was trying to help out my family member.

   [STATE'S ATT'Y:] Okay. And how did that conversation end?

   [THOMAS:] It ended with him basically asking me was I bulletproof.

   [DEF. ATT'Y:] Objection. Move to strike.

   THE COURT: Overruled.

   [STATE'S ATT'Y:] What did defendant[***23] say to you?

   [THOMAS:] He asked me was I bulletproof, he told me he knew where I lived and that he basically was going to get me and my punk-ass brother [i.e., Adrian Washington].

   [DEF. ATT'Y:] Objection. Move to strike.

   THE COURT: Overruled.

   We begin our analysis by repeating that the trial court is afforded great [**776]deference in its rulings on admissibility [*673] of evidence and that rulings as to relevancy will not be disturbed on appeal unless there is a clear abuse of discretion. See Hopkins v. State, 352 Md. 146, 158, 721 A.2d 231, 238 (1998). The trial judge's conclusion that Thomas's testimony was relevant is amply supported by the record.

   Appellant's statements to Thomas were made approximately three hours before the murders. Thomas's testimony is probative of the proposition that, within the pertinent time frame, Appellant was angry and in a violent frame of mind, and reacted during that time to objects of his anger with an impulse to shoot them. This proposition is probative of Appellant's motive to kill Kristi. While the testimony may have been prejudicial, it was not unfairly so under the facts of the case. We find no error.
 
2. Testimony that [***24]  Ware Had Assaulted Kristi Gentry on a Prior Occasion

   Kevin Gentry testified that, three months before the altercation with Ware on December 30, 1993, he had told Ware that "if he ever put his hands on my sister again, I would beat him up." Appellant argues that this testimony was inadmissible evidence of prior misconduct, carried no probative value, and was prejudicial.

   After the telephone conversation described above between Thomas and Ware, Thomas telephoned Kevin Gentry, Kristi's brother. Kevin testified as a prosecution witness that, after speaking to Thomas, he drove to the Gentry house, where he confronted Ware, engaged in an altercation with him, and ejected him from the house. The prosecutor asked Kevin, "what prompted you to beat Mr. Ware up in that manner?" The defense objected, and, at the bench, the State argued that the jury should know that Appellant had hit Kristi on a previous occasion, leading Kevin to warn him that he would be beaten if it happened again. The State proffered that the witness would testify that "on a previous occasion there was an altercation, and he told Ware, if you ever lay hands on my sister again, I am going to beat you up without any further[***25] [*674]conversation." The State argued that without this testimony, it would "look[] like he just went in and beat Ware up for no reason."

   The court overruled the objection, concluding that the evidence was not offered for its truth, but simply to show why Kevin acted as he did. The witness told the jury: "If he ever put his hands on my sister again, I would beat him up."

   Relying on Rule 5-404(b), Appellant argues that the testimony was irrelevant to any issue in the case, because the action the testimony was meant to justify was itself irrelevant to any issue in the case. He maintains that Kevin Gentry's testimony left the jury to speculate as to what Appellant had previously done to Kristi, when it occurred, and whether it demonstrated a propensity to engage in violence against her.

   At the outset, we note that evidence of the deterioration in Ware and Kristi's relationship came from many sources without objection. Several witnesses testified that the arguments between the two had escalated to the point of physical violence.

   Kevin had testified that he knew Ware as his sister's boyfriend. When he arrived at the Gentry residence on December 30, 1993, Kevin saw Ware's car. Kevin rang[***26] the doorbell and, when Ware opened the door, Kevin began hitting Ware. The testimony in question was offered to explain Kevin's actions. The testimony was relevant to put Kevin's conduct in context. It was not offered for its truth, but simply to show why Kevin acted as he did.

   The evidence that Kevin hit Ware the morning of the murders was relevant to show Ware's escalating anger towards Kristi on the day of the murder. In fact, several witnesses testified to this escalating anger and Appellant's build-up of rage towards Kristi. It is the function of the [**777] trial judge to assess the probative value of evidence and to weigh the probative value against the prejudicial effect. The trial judge did not abuse his discretion.
 
[*675] 3. Testimony that Ware Constantly Carried a Gun
 
Appellant argues that the trial court erred in admitting testimony of the State's witness, Sean LeBere, that Appellant had a gun and that he always carried it with him. Sean LeBere was an acquaintance of Ware's for six or seven months preceding the murders. LeBere testified that he saw Ware about two or three days per week during this period. The State asked LeBere, "During the six or seven months before[***27] December 30th of 1993, did you ever see the Defendant with a gun?" The defense objected on grounds of relevancy. The State argued that the evidence was relevant because the murders were committed with a gun, which was never found, and the testimony tended to show that Ware possessed a gun. Defense counsel argued that conduct beginning six to seven months before the murders was irrelevant and that "his habits are irrelevant." The court overruled the objection, and, in response to the question of how often LeBere had seen Ware with a gun, LeBere answered, "He always carried one with him."

   Although conceding that evidence that he possessed a gun close to the time of the murders was relevant, Appellant argues that evidence that he did so continuously over a period of several months preceding the murders is not relevant and that it violates Maryland Rule 5-404(b). The State argues that LeBere's testimony that Ware always carried a gun was as relevant as the testimony of other witnesses that Ware had a gun a short time before the murders and that, in light of this other unobjected to testimony that Ware carried a gun frequently, any error in the admission of LeBere's testimony was harmless. [***28]

   Appellant objected below on the grounds that the evidence was irrelevant and that its prejudicial effect outweighed its probative value. Appellant's argument that the evidence ran afoul of Rule 5-404(b) was never made to the trial court and therefore was not preserved. See Klauenberg v. State, 355 Md. 528, 541-42, 735 A.2d 1061, 1068 (1999) (holding that a defendant waives the right to argue on appeal that testimony [*676] was inadmissible bad acts evidence when the only objection at trial was on grounds of relevancy).

   We hold that the trial court did not err in admitting the testimony. It was relevant to establish that Ware possessed a gun and as evidence of habit that he carried a gun.

   Evidence of a person's habit is explicitly deemed relevant by Rule 5-406 to prove action in conformity with the habit:

   Evidence of the habit of a person or of the routine practice of an organization is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.
 
Evidence that a person has a habit of doing something is relevant to show that the person engaged in the conduct on a particular occasion. [***29] Here, evidence that Ware was in the habit of carrying a gun made it more likely that he had a gun on the day of the murders. This was habit evidence, admissible under Rule 5-406, and not evidence of a bad act to show character under Rule 5-404(b). n8 There was no error.

n8 Professor McLain, in her learned treatise on evidence, addresses the acceptable methods of proving habit under Rule 5-406:

   Proof of an individual's habit may be made in three ways: (1) by the individual himself or herself, who has lost his or her memory as to the specific occasion; (2) by another person who has seen the individual take that action on repeated occasions; or (3) by various individuals who have seen the individual take the particular action on different occasions.
  
5 LYNN MCLAIN, MARYLAND EVIDENCE § 406.1, at 402 (1987 & Supp. 1995). Anderson's testimony fell into category (2).

 
[**778] B. Admission of Testimony That Law Enforcement Officials Previously Testified to a Witness's Truthfulness

   Ware argues that the testimony[***30] of Edward Anderson, a critical witness for the State, that certain law enforcement officials had testified at Anderson's hearing on his motion to reduce his sentence (in an unrelated case) that he had given them truthful information regarding these murders--the same information to which he testified in Ware's [*677] trial--was admitted in error. Ware argues that Anderson's credibility was a central issue in this trial and that, when the trial court permitted Anderson's credibility to be bolstered improperly through the opinions of a prosecutor and police detective that Anderson was telling the truth, the trial court committed reversible error.

   Anderson, an inmate at the Department of Corrections serving a life sentence at the time of the murders, testified for the State. Anderson testified that he was a friend of Kristi Gentry and that Cynthia Allen was the mother of his child. On the day of the murders, Anderson testified, he had telephoned the Gentrys' house from prison and spoken to Kristi and Cynthia. Anderson testified that Cynthia told him, "Darris is here," and that Ware and Kristi were "fussing." Anderson also testified that he heard Kristi screaming, and then heard three gunshots, [***31] followed by silence; afterward, someone hung up the phone on the Gentrys' end.

   On cross-examination, Ware's counsel attempted to show that Anderson's testimony was motivated by a desire to obtain leniency in his own case. Anderson testified on cross- examination that, before Ware's first trial, his counsel had filed a motion for modification of his life sentence. He also testified that he brought to the attention of the sentencing judge the fact that he was testifying in the instant case. At the hearing on this motion, Anderson called as witnesses an Anne Arundel County police detective and a prosecutor from the Anne Arundel State's Attorney's Office to testify regarding Anderson's actions in informing them of the conversation that he had heard on the telephone.

   On redirect, the prosecutor inquired further regarding the testimony of the detective and prosecutor at the modification hearing:

   [STATE'S ATT'Y:] And, Mr. Anderson, you were present when they testified?

   [NDERSON: Yes, ma'am.

   [STATE'S ATT'Y:] Okay. And you heard their testimony?

   [*678]

   ANDERSON: Yes, ma'am.

   [STATE'S ATT'Y:] And can you tell us whether or not they testified to anything other than the facts of what you[***32] had testified to?

   [DEF. ATT'Y:] Objection as to the characterization of that.

   THE COURT: I overrule that. You can answer that.

   ANDERSON: They just testified that I was--that I was being truthful in bringing them this information. That's all.

   Appellant argues that evidence that a prosecutor and a police detective had testified under oath that Anderson "was being truthful" in the information that he presented was improper and highly prejudicial in that it vouched for his credibility and the truth of his testimony. Appellant cites Bohnert v. State, 312 Md. 266, 539 A.2d 657 (1988), in which we held that a social worker's expert testimony that a child was a victim of sexual abuse, supported only by the child's averments, was tantamount to a declaration that the child was telling the truth and the defendant was lying, and therefore invaded the province of the jury. See 312 Md. at 276, 278-79, 539 A.2d at 662-63.

   [**779] It is the law of this State "that a witness, expert or otherwise, may not give an opinion on whether he believes a witness is telling the truth. Testimony from a witness relating to the credibility of another witness is to be rejected as[***33] a matter of law." Id. at 278, 539 A.2d at 663. In Bohnert, we said:

   In a criminal case tried before a jury, a fundamental principle is that the credibility of a witness and the weight to be accorded the witness' testimony are solely within the province of the jury.  Battle v. State, 287 Md. 675, 685, 414 A.2d 1266 (1980). Therefore, the general rule is that it is error for the court to make remarks in the presence of the jury reflecting upon the credibility of a witness.  Elmer v. State, 239 Md. 1, 10-11, 209 A.2d 776 (1965). It is also error for the court to permit to go to the jury a statement, belief, or [*679] opinion of another person to the effect that a witness is telling the truth or lying.  Thompson v. Phosphate Works, 178 Md. 305, 317-319, 13 A.2d 328 (1940); American Stores v. Herman, 166 Md. 312, 314-315, 171 A. 54 (1934). The Court of Special Appeals said in Mutyambizi v. State, 33 Md. App. 55, 61, 363 A.2d 511 (1976), cert. denied, 279 Md. 684 (1977):

   Whether a witness on the stand personally believes or disbelieves testimony of a previous witness is irrelevant, [***34] and questions to that effect are improper, either on direct or cross-examination.
 
Id. at 277, 539 A.2d at 662. See JOSEPH MURPHY, JR., MARYLAND EVIDENCE HANDBOOK § 603(C), at 250 (3d ed. 1999) (stating that a witness is not permitted "to express an opinion that another person's specific testimony is true or false"). In Bohnert, this Court reversed the conviction. See Bohnert, 312 Md. at 279, 539 A.2d at 663.

   In the instant case, Anderson's testimony that the prosecutor and detective said he was being truthful when he brought information to them was inadmissible. Bohnert, however, is distinguishable. In Bohnert, the State called a witness before the jury to bolster the credibility of another witness. In this case, we merely have the self-serving statement of the witness saying that others thought he was being truthful. Here we have Anderson basically saying: I am telling you the truth. I am telling you also that two others said I am telling the truth. Although distinguishable from Bohnert, we do not think the testimony was proper. Nevertheless, the form of the evidence reduced its prejudicial impact. Anderson made a self- serving statement[***35] to the effect that certain persons not present once affirmed, on an unknown basis, his truthfulness in making the statements he again made at trial. Such a statement, by a witness whose credibility is in question, is far less weighty than the expert testimony in Bohnert, and its effect on the jury was likely to be insignificant. Moreover, it is implicit that the police believed Anderson or they would not have gone to bat for him at the hearing on his motion to reduce his sentence. Although error, we hold that the error was harmless [*680] beyond a reasonable doubt. We are "satisfied that there is no reasonable possibility that the evidence complained of . . . may have contributed to the rendition of the guilty verdict." Dorsey v. State, 276 Md. 638, 659, 350 A.2d 665, 678 (1976).
 
C. Prosecutor's Closing Argument

   Appellant next asserts that the trial court erred in permitting improper closing argument. He argues that, in her closing argument to the jury, the prosecutor's argument depended on speculation regarding facts not in evidence and that the court erroneously denied Appellant's request to strike these comments and to instruct the jury to disregard the improper[***36] argument. 

   Jeffrey Allen, Cynthia Allen's husband, testified that Ware came to the Allens' house at about 12:45 on December 30, 1993 and that he had his hands "folded with one hand in his jacket." Ware departed [**780] shortly after he arrived. In her closing argument, the prosecutor described the shootings, noting that Cynthia Allen had been on the telephone talking to Edward Anderson. The prosecutor then continued as follows:

   But then, one more thought occurs to [Ware]. Who was Cynthia on the phone with when he fired those first shots? Jeffrey? There can't be any witnesses to this crime. I have eliminated Cynthia, I am going to get rid of the gun, but was it Jeffrey on the other end of the phone? Did he hear the gunshots?

   What does the Defendant do? He leaves the home. The murders happen at 12:31. We know that is when the phone was hung up. He arrives at Jeffrey Allen's house at about 12:45. Jeffrey Allen doesn't know that there is anything wrong yet.
 
Defense counsel objected, and a bench conference followed. Defense counsel contended that the State's argument was pure speculation as to what was in Ware's mind at the time he went to the Allen home. He also argued that there was [***37] no evidence as to whether Ware had a gun when he went over to [*681]the house. He argued that, since Ware was not charged with any offense against Jeffrey Allen, any reference to eliminating Allen should be stricken and the jury instructed to disregard the comment. The State argued that the comments were an appropriate response to the assertion in Appellant's opening statement that his actions after the crime were consistent with his innocence and that she was entitled to argue about why he went to the Allens' house. The court agreed with Appellant that it would be improper to imply that Ware had his gun in his pocket. The judge said, "I am not going to allow you to say where is his gun, but everything else is okay." The prosecutor resumed her closing argument:

    Ladies and gentlemen, the Defendant goes to Jeffrey Allen's house. Jeffrey Allen tells you what he is wearing. The red ski jacket, the blue pants, and he tells you that his hands are in his pocket. Of course, that is significant, ladies and gentlemen.

   The Defendant is satisfied that Jeffrey Allen is aware of nothing at that point and he leaves.

   Appellant argues that the prosecutor's closing argument was unsupported by the evidence[***38] and that the State could not prove that Ware went to Allen's house armed and intending to kill Allen. He maintains that this inference argued by the State was pure speculation about possible other crimes and, as such, was highly prejudicial. The State's threshold position is that the issue is not preserved for our review, because defense counsel did not object after the prosecutor resumed her argument. On the merits, the State argues that the prosecutor never argued or inferred that Ware went to the Allen house to eliminate a witness.

   We find that the issue is preserved, and we shall address the merits. Appellant objected to the argument and now asserts that the trial court erred in failing to strike the argument and to instruct the jury to disregard it.

   We begin by noting that, as a general rule, attorneys have great leeway in closing arguments.  See Degren v. State, 352 Md. 400, 429, 722 A.2d 887, 901 (1999). Attorneys [*682] are permitted to comment on the evidence and to state all reasonable inferences that may reasonably be drawn from the evidence. See Wilhelm v. State, 272 Md. 404, 412-13, 326 A.2d 707, 714 (1974). This wide latitude, however, is[***39] not unlimited and does not include the right to discuss facts not in evidence. See Degren, 352 Md. at 430, 722 A.2d at 901-02; Collins v. State, 318 Md. 269, 279, 568 A.2d 1, 6 (1990). On the other hand, discussing facts not in evidence is not necessarily grounds for reversal. Judge Cathell, writing for the Court in Degren, noted:

   Not every improper remark, however, necessarily mandates reversal, and what exceeds the limits of permissible comment [**781] depends on the facts in each case. We have said that reversal is only required where it appears that the remarks of the prosecutor actually misled the jury or were likely to have misled or influenced the jury to the prejudice of the accused. This determination of whether the prosecutor's comments were prejudicial or simply rhetorical flourish lies within the sound discretion of the trial court. On review, an appellate court should not reverse the trial court unless that court clearly abused the exercise of its discretion and prejudiced the accused.
 
Degren, 352 Md. at 430-31, 722 A.2d at 902 (citations, alterations, and internal quotations omitted). See also Oken v. State, 327 Md. 628, 612 A.2d 258 (1992); [***40]Jones v. State, 310 Md. 569, 530 A.2d 743 (1987), judgment vacated on other grounds, 486 U.S. 1050, 108 S. Ct. 2815, 100 L. Ed. 2d 916 (1988); Reidy v. State, 8 Md. App. 169, 259 A.2d 66 (1969). "The permissible scope of closing argument is a matter left to the sound discretion of the trial court. The exercise of that discretion will not constitute reversible error unless clearly abused and prejudicial to the accused." Booth v. State, 306 Md. 172, 210-211, 507 A.2d 1098, 1118, judgment vacated in part on other grounds, 482 U.S. 496, 107 S. Ct. 2529, 96 L. Ed. 2d 440 (1987).

    Although there is no direct evidence regarding Ware's reason in going to Allen's house, the prosecutor recounted facts in evidence. Defense counsel, in his opening statement, [*683] argued that Ware's actions on the day of the murders were consistent with innocence. The State was entitled to show, directly or circumstantially, that such was not the case. Ware's appearance at the Allen house could have been construed as circumstantial evidence supporting the theory that he went there to cover up the crime. We find no error.
 
D. Exclusion [***41]  of Testimony of Antonio Barnes

   Appellant argues that the trial court erred when it sustained the State's objection to the testimony of Appellant's roommate, Antonio Barnes, that Appellant instructed Barnes to tell Kristi Gentry that Appellant was on his way to the Gentrys' house shortly before the murders. Appellant argues that the statement was not hearsay and was admissible as inconsistent with a premeditated intent to murder Kristi.

   Antonio Barnes was called as a State's witness and testified on direct examination that he had known Ware for a couple of years and became his roommate in October, 1993. Barnes also testified on direct examination to Ware's possession of a gun and to the search of their apartment after the shootings. On cross-examination by Ware's counsel, Barnes said that around midnight on the night of December 29, 1993, he received a phone call from Kristi. Barnes agreed to tell Ware that she had called.

   When the State concluded its examination of Barnes, defense counsel informed the court that Barnes was to be recalled as a defense witness. As a courtesy to Mr. Barnes, the court permitted the defense examination of Barnes, out of turn, and in the State's case-in-chief. [***42] Barnes testified that he saw Ware at about 11:30 a.m. on December 30, 1993, when Ware returned to the apartment to change his clothing. As Ware left the apartment, he gave instructions to Barnes. The State objected when defense counsel asked Barnes to relate the instructions he had given to him. Defense counsel proffered that Barnes would testify that Ware told him to tell Kristi, if she called, that he was on his way over. Defense counsel argued that the State would be introducing evidence [*684] that would make Barnes' testimony relevant. The trial judge stated that, since Barnes had been called out-of-turn and during the State's case, he did not know what the State was going to offer. The judge sustained the objection, ruling that Ware could recall Barnes as a witness later.

   [**782] Trial judges have broad discretion in determining the order of presentation of evidence. n9  See McCray v. State, 305 Md. 126, 133, 501 A.2d 856, 860 (1985) (recognizing that "trial judges have broad discretion in the conduct of trials in such areas as the reception of evidence"). In sustaining the State's objection, the trial court properly exercised its discretion. The court merely excluded[***43] this evidence until a later point in the trial; defense counsel never re-offered the testimony. We perceive no abuse of this discretion.

n9 Maryland Rule 5-611(a) requires trial judges to manage the order of presentation of evidence:
 
   The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.

   Appellant's sole argument before this Court is that the trial court erroneously excluded the testimony on hearsay grounds. Appellant is wrong in concluding that hearsay was the basis for the court's ruling. In fact, the judge never ruled that the evidence was inadmissible per se. The court merely ruled that it was irrelevant when offered.

   The trial judge properly exercised his discretion in ruling that, when Appellant offered the evidence, it was not relevant and[***44] that Appellant could recall the witness at a later point in the trial. The discretion to vary the usual order of proof is well within the trial court's discretion. See, e.g., McCray, 305 Md. at 133-34, 501 A.2d at 860; State v. Hepple, 279 Md. 265, 270-71, 368 A.2d 445, 449 (1977). The judge had varied the order of proof in permitting the direct examination of Barnes by the defense during the State's case in chief. In sustaining an objection to part of the testimony, the judge properly [*685] exercised his discretion in controlling the order of proof, thereby permissibly requiring Ware to recall the witness later in the trial if he so desired. Nothing prevented Ware's counsel from recalling the witness. We find no error.

   E. Evidence of Ware's Demeanor While Giving a Statement to the Police

   Appellant argues that the testimony of a police officer that Appellant "would . . . sweat, . . . tense up in his chair and . . . try to push himself away from me and . . . choke a little when he spoke" during his interrogation was irrelevant and implied that Appellant was being untruthful when he was being questioned about the shootings. He argues a violation of due[***45] process. The State argues that the officer's testimony was nothing more than his observations of Ware during the interview.

   Officer Michael Praley testified for the State regarding the statement that Appellant made to him the on the day of the murders. In response to the prosecutor's question about Ware's demeanor, the officer responded:

   He was calm. But at times there was a--during my hours of interviewing him, the rhythm of questions leading to him shooting both these girls, I observed that he would--he would sweat, that he would tense up in the chair and that he would try to push himself away from me slightly and that he would choke a little as he spoke. * * * Like he would--in his voice would be a rasp and a choke and the words that he would speak.
 
The officer said that he noted these observations when he questioned Ware specifically about the shooting, but that Ware was calm when he discussed matters that happened the night before the shootings.

    Officer Praley testified to his observations of Ware's physical appearance and manner of speaking; he never expressed an opinion as to Ware's truthfulness. There were no accusations of lies or inconsistencies. As to Ware's demeanor, [***46]the [**783] significance was for the jury to assess. We perceive no error.

   [*686]

   IV. Sentencing Phase
 
A. Evidence of Victims' Families' Opposition to Death Sentence

   Appellant proffered evidence that some of the victims' family members did not wish to see a death sentence imposed because of the anxiety and uncertainty that would result from the possibility of a future successful attack upon the sentence. The trial court ruled that the evidence was not relevant and hence inadmissible. We agree.

   Appellant argues that the evidence was admissible for two purposes. First, he argues that it was admissible as a potential mitigating circumstance under § 413(g)(8), the catch-all provision, and may not be restricted under the Eighth Amendment to the United States Constitution. Second, he argues that it was admissible to respond to the victim impact evidence introduced by the State. His theory is that victim impact evidence may establish that a family member is plagued by grief, fear, and anxiety. Evidence that a family member opposes a death sentence is directly responsive because of its tendency to show that at least some of these emotions may be reduced in intensity or severity by a sentence[***47] of life without parole.

   In Lockett v. Ohio, 438 U.S. 586, 604, 98 S. Ct. 2954, 57 L. Ed. 2d 973 (1978), the United States Supreme Court held that a jury should "not be precluded from considering as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death." A plurality of the Court also noted that "nothing in this opinion limits the traditional authority of a court to exclude, as irrelevant, evidence not bearing on the defendant's character, prior record, or the circumstances of his offense." Id. at 605 n.12.

   Victim impact evidence is admissible during capital sentencing. The United States Supreme Court held in Payne v. Tennessee, 501 U.S. 808, 111 S. Ct. 2597, 115 L. Ed. 2d 720 [*687] (1991), that admission of victim impact evidence during capital sentencing does not violate the Eighth Amendment. The Court held that "victim impact evidence is simply another form or method of informing the sentencing authority about the specific harm caused by the crime in question, evidence of a type long considered by sentencing[***48] authorities." 501 U.S. at 825. The sentencing authority, however, may not consider statements of the victim's family that amount to an opinion regarding the appropriate sentence to be imposed upon the defendant. See Booth v. Maryland, 482 U.S. 496, 107 S. Ct. 2529, 96 L. Ed. 2d 440 (1987), overruled in part on other grounds, Payne v. Tennessee, 501 U.S. at 830 & n.2.

   In overruling Booth, the Supreme Court in Payne did not disturb the Eighth Amendment proscription against the introduction of victim statements that the death penalty should be imposed. n10 See Robison [**784] v. Maynard, 943 F.2d 1216, 1217 (10th Cir. 1991); State v. Hoffman, 123 Idaho 638, 851 P.2d 934, 941 (Idaho 1993); State v. Muhammad, 145 N.J. 23, 678 A.2d 164, 172 (N.J. 1996); State v. Pirtle, 127 Wn.2d 628, 904 P.2d 245, 269 (Wash. 1995).

n10 The Supreme Court of Alabama, in Ex parte McWilliams, 640 So. 2d 1015, 1017 (1993), discussed the effect of Payne v. Tennessee on the Court's ruling in Booth v. Maryland, concluding that Payne only partially overruled Booth. The court stated:

   In Booth v Maryland, 482 U.S. 496, 107 S. Ct. 2529, 96 L. Ed. 2d 440 (1987) the United States Supreme Court vacated a death sentence, holding that it violated the defendant's Eighth Amendment rights for the sentencer to consider victim impact statements in sentencing the defendant to death. The victim impact statements in that case contained the same types of information as were in the statements in the present case. In Payne v. Tennessee, 501 U.S. 808, 111 S. Ct. 2597, 115 L. Ed. 2d 720 (1991), the Supreme Court partially overruled Booth. The court in Payne held that the defendant's Eighth Amendments rights were not violated by the trial court's consideration of statements regarding the victims and the impact of their deaths upon the family members. The victim impact statements in Payne did not contain characterizations or opinions about the defendant, the crime or the appropriate punishment. That portion of Booth that proscribed the trial court's consideration of that type of statement was therefore left intact by Payne.

[***49]

   [*688]

   In Robison v. Maynard, the United States Court of Appeals for the 10th Circuit held that "the opinion of a relative of a victim is irrelevant to the jury's determination of whether the death penalty should be imposed." 943 F.2d at 1217. The court concluded that such testimony is "calculated to incite arbitrary response" from the jury. Id. Interpreting Payne, the 10th Circuit stated:

   Payne merely put aside the bar to the introduction of and comment upon victim impact evidence which had been created in Booth [v. Maryland, 482 U.S. 496, 107 S. Ct. 2529, 96 L. Ed. 2d 440 (1987)] and South Carolina v . Gathers, 490 U.S. 805, 109 S. Ct. 2207, 104 L. Ed. 2d 876 (1989). The Court did not expand the universe of admissible relevant mitigating evidence established by Lockett v. Ohio, 438 U.S. 586, 98 S. Ct. 2954, 57 L. Ed. 2d 973 (1978), and Eddings v. Oklahoma, 455 U.S. 104, 102 S. Ct. 869, 71 L. Ed. 2d 1 (1982) . . . . We cannot agree that Payne portends admissibility of any evidence other than that related to the victim and the impact of the victim's death on the members of the victim's[***50] family. Nothing said by the Court suggests the Court intended to broaden the scope of relevant mitigating evidence to include the opinion of a victim's family member that the death penalty should not be invoked.
 
 Id.

   The Maryland General Assembly has exercised its prerogative to permit victim impact evidence by requiring the Department of Parole and Probation to prepare a pre-sentence investigation report for consideration by the judge or jury at sentencing. See Maryland Code (1957, 1997 Repl. Vol., 1999 Supp.) Art. 41, § 4-609(d). By statute, a victim impact statement must be included in this report. See Maryland Code (1957, 1996 Repl. Vol., 1999 Supp.) Art. 27, § 781; Evans v. State, 333 Md. 660, 685, 637 A.2d 117, 130 (1994).

   Section 413(g) addresses mitigating factors. The statute enumerates seven statutory mitigators, and an eighth "catch-all" provision, providing as follows: 

   [*689] If the court or jury finds, beyond a reasonable doubt, that one or more of these aggravating circumstances exist, it shall then consider whether, based upon a preponderance of the evidence, any of the following mitigating circumstances exist:

   (1) The defendant has not[***51] previously (i) been found guilty of a crime of violence; (ii) entered a plea of guilty or nolo contendere to a charge of a crime of violence; or (iii) had a judgment of probation on stay of entry of judgment entered on a charge of a crime of violence. As used in this paragraph, "crime of violence" means abduction, arson in the first degree, escape in the first degree, kidnapping, manslaughter, except involuntary manslaughter, mayhem, murder, robbery, carjacking or armed carjacking, or rape or sexual offense in the first or second degree, or an attempt to commit any of these offenses, or the use of a handgun in the commission of a felony or another crime of violence. 

   (2) The victim was a participant in the defendant's conduct or consented to the act which caused the victim's death.

   (3) The defendant acted under substantial duress, domination or provocation of another person, but not so substantial as to constitute a complete defense to the prosecution.

   (4) The murder was committed while the capacity of the defendant to appreciate [**785] the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired as a result of mental incapacity, mental[***52] disorder or emotional disturbance.

   (5) The youthful age of the defendant at the time of the crime.

   (6) The act of the defendant was not the sole proximate cause of the victim's death.

   (7) It is unlikely that the defendant will engage in further criminal activity that would constitute a continuing threat to society.

   (8) Any other facts which the jury or the court specifically sets forth in writing that it finds as mitigating circumstances in the case.
 
[*690] Section 413(g). Appellant relies on the Section 413(g)(8) mitigator, the so-called catch-all mitigator. A Section 413(g)(8) mitigator is "anything relating to the defendant or to the crime which causes [the jury or any of its individual members] to believe that death may not be appropriate." Harris v. State, 312 Md. 225, 253, 539 A.2d 637, 651 (1988) (quoting Mills v. State, 310 Md. 33, 51, 527 A.2d 3, 11 (1987), judgment vacated on other grounds, 486 U.S. 367, 108 S. Ct. 1860, 100 L. Ed. 2d 384 (1988)). In addition, the judge or jury, as the sentencing authority, is free to include as mitigating circumstances "any other facts which the jury or the court specifically sets forth[***53] in writing that it finds as mitigating circumstances in the case." Tichnell v. State, 287 Md. 695, 734, 415 A.2d 830, 850 (1980). We reiterated this holding in Calhoun, pointing out that, under the Maryland statute, "the sentencing authority may articulate any factor it finds in mitigation." 297 Md. 563, 637, 468 A.2d 45, 81 (1983).

   In addition to a victim impact statement included in the pre-sentence report, a victim's family member may testify orally at sentencing. See § 780(a). n11 The "permissible scope of victim impact testimony . . . lies within the sound discretion of the presiding judge, as limited by Md. Code (1957, 1996 Repl. Vol.), Art. 27, § 413(c)(1)(v)." Ball v. State, 347 Md. 156, 197, 699 A.2d 1170, 1189-90 (1997). Admissible evidence is any "evidence that the court deems of probative value and relevant to sentence, provided the defendant is accorded a fair opportunity to rebut any statements." n12 § 413(c)(1)(v).

n11 Article 27, § 780(a) provides as follows:

   In every case resulting in serious physical injury or death, the victim or a member of the victim's immediate family ... may, at the request of the State's Attorney and in the discretion of the sentencing judge, address the sentencing judge or jury under oath or affirmation before the imposition of sentence. 

[***54] 

n12 Section 413 provides as follows:

   The following type of evidence is admissible in this proceeding:

   (i) Evidence relating to any mitigating circumstance listed in subsection (g) of this section;

   (ii) Evidence relating to any aggravating circumstance listed in subsection (d) of this section of which the State had notified the defendant pursuant to § 412(b) of this article;

   (iii) Evidence of any prior criminal convictions, pleas of guilty or nolo contendere, or the absence of such prior convictions or pleas, to the same extent admissible in other sentencing procedures;

   (iv) Any presentence investigation report. However, any recommendation as to sentence contained in the report is not admissible; and
 
(v) Any other evidence that the court deems of probative value and relevant to sentence, provided the defendant is accorded a fair opportunity to rebut any statements.
 
§ 413(c)(1).

   [*691]

   The trial judge did not abuse his discretion in excluding the testimony that the victim's family did not wish a death sentence imposed. Opinions that Appellant should not receive a sentence of death have[***55] no bearing as to defendant's character, prior record, or the circumstances of the offense. They do not qualify as victim impact evidence or rebuttal thereto. Such evidence has no bearing on the actual harm caused by the particular crime. The [**786]testimony does not constitute mitigating evidence under the Maryland statute. Because the proffered evidence concerned the appropriate sentence to be imposed on Appellant, it was excluded properly by the trial court. We hold that the trial court did not err by excluding evidence of the victims' families opinion on the death penalty because it was not relevant, even under a loose evidentiary requirement of relevance. The trial court did not exclude evidence of a mitigating circumstance in violation of the Eighth Amendment.

   Other jurisdictions that have considered the admissibility of such evidence have reached the same conclusion. See, e.g., Robison v. Maynard, 943 F.2d 1216, 1217-18 (10th Cir. 1991) (upholding exclusion of victim's sister's testimony that she opposed death penalty as not relevant to mitigation), superseded by statute, OKLA. STAT. tit. 22 § 984 (evidence admissible by statute); Barbour v. State, 673 So. 2d 461, 468-69,[***56] (Ala. Ct. Crim. App. 1994) (holding that a letter from the victim's brother requesting that defendant receive life without parole was properly excluded since, under Eddings, this evidence was not [*692] relevant to any mitigating circumstance because it did not pertain to defendant's character, record, or the circumstances of the offense); Floyd v. State, 569 So. 2d 1225, 1230 (Fla. 1990) (finding no abuse of discretion in excluding victim's daughter's testimony that defendant should not be executed); State v. Clark, 1999 NMSC 35, 990 P.2d 793, 805-06, 128 N.M. 119 (N.M. 1999) (upholding exclusion of clergymen's testimony regarding religious doctrine and opinions about the death penalty); State v. Bowman, 349 N.C. 459, 509 S.E.2d 428, 440 (N.C. 1998) (upholding exclusion of victim's mother's testimony expressing ambivalence about imposition of the death penalty because not evidence of mitigating circumstance since it had nothing to do with defendant's character, record, or circumstances of offense and did not reduce moral culpability of the killing); State v. Wright, 323 Ore. 8, 913 P.2d 321, 324-27 (Or. 1996) (upholding exclusion[***57] of opinions as to whether defendant should receive death sentence because not relevant to any mitigating circumstance); State v. Pirtle, 127 Wn.2d 628, 904 P.2d 245, 268-69 (Wash. 1995) (upholding exclusion of victim's essay stating general opposition to death penalty because essay not mitigating evidence and not pertinent to an extenuating circumstance or to defendant's moral culpability).
 
B. Jury Instruction Regarding Youthful Age of the Defendant as a Mitigating Factor

    Appellant argues that the jury instruction concerning the mitigating factor of the youthful age of the defendant was inadequate, in that the instruction may have left the jury with the impression that youthful age meant chronological age only. Appellant failed to request the instruction that he now requests and never objected to the instruction regarding youthful age that he now claims was error. Where there has been no timely objection to the giving of or failure to give an instruction, the issue is not preserved. See Maryland Rule 4- 325 (e); Richmond v. State, 330 Md. 223, 235, 623 A.2d 630, 636 (1993). The issue is waived. See Maryland Rule 8-131; State v. Tichnell, 306 Md. 428, 465-66, [*693] 509 A.2d 1179, 1198 (1986);[***58] Foster v. State, 305 Md. 306, 316, 503 A.2d 1326, 1331 (1986). We find no plain error.

   Section 413(g) provides that, if the jury or court considering a death sentence finds beyond a reasonable doubt that an aggravating circumstance exists, then it must consider whether any mitigating circumstances exist. The statute sets out a non-exclusive list of possible mitigating circumstances. Section 413 (g)(5) states as a statutory mitigator: "The youthful age of the defendant at the time of the crime." In explaining the sentencing form to the jury, the judge said: "For the purposes of the sentencing procedure, a mitigating circumstance is anything about the Defendant or the facts of this case that, in fairness or in [**787] mercy, may make the death sentence an inappropriate penalty for the defendant." The court identified the mitigating circumstances for the jury, and in regard to youthful age, stated: "Five, the youthful age of the Defendant at the time of the crime." At the conclusion of the jury instructions, both sides told the court, at the bench, that there were no objections to the instructions as given.

   Appellant, who was 22 years old at the time of the murders, argues[***59] that the youthful age mitigator in Maryland includes many factors other than chronological age, see, e.g., Johnson v. State, 348 Md. 337, 353-54, 703 A.2d 1267, 1275 (1998), and that, without an explicit instruction regarding these other factors, the jury would likely assume that "age" means chronological age only. Appellant introduced the videotaped deposition of expert Laurie James Monroe as evidence of his background and upbringing. He argues that, if given a more detailed instruction, the jury could have considered this evidence, as well as Appellant's lack of experience with the criminal justice system and his "poor anger control evidencing immaturity," when deciding whether the mitigating circumstance of youthful age existed. Finally, Appellant argues that, despite the lack of objection, the sentence should be reversed because the instruction as given was plain error. We disagree.

   [*694] It is well settled in Maryland that youthful age as used in this statute includes considerations other than mere chronological age, see Johnson, 348 Md. at 353-54, 703 A.2d at 1275; Lovell v. State, 347 Md. 623, 659-60, 702 A.2d 261, 279 (1997), but[***60] instructions on mitigating circumstances for purposes of capital sentencing proceedings are not excepted from the general rule that a party must request a specific instruction before a court is required to give it. Appellant does not contend that the instruction as given contained any misstatement, but only that the instruction "provided the jury with no guidance in assessing the existence vel non" of the youthful age mitigator. "The constitutional standard for reviewing an allegedly ambiguous jury instruction is 'whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence.'" Booth v. State, 327 Md. 142, 162, 608 A.2d 162, 171 (1992) (quoting Boyde v. California, 494 U.S. 370, 380, 110 S. Ct. 1190, 108 L. Ed. 2d 316 (1990)).

   It is clear from a review of the closing arguments of the State and Appellant that the jury was not misled into believing that the statutory mitigator of youthful age was limited to chronological age only. The State, in closing, conceded that the defendant's age of twenty- two "is not extremely old or very old in[***61] terms of chronological age." The prosecutor then went on to argue the maturity of Ware, his actions in the military and service in Desert Storm, and the cold and calculating nature of the crime as evidence of maturity. In response, as to youthful age, defense counsel argued the immaturity of Appellant and that he was "acting out of youth, out of the impetuousness of youth."

   A court's obligation to give any particular instruction in a criminal case is governed by Maryland Rule 4-325. Rule 4-325(c) provides:

   The court may, and at the request of any party shall, instruct the jury as to the applicable law and the extent to which the instructions are binding. The court may give its instructions orally or, with the consent of the parties, in writing instead of orally. The court need not grant a [*695] requested instruction if the matter is fairly covered by instructions actually given.
 
Rule 4-325(e) deals with objection and the right to assign error in connection with jury instructions:

   No party may assign as error the giving or failure to give an instruction unless the party objects on the record promptly after the court instructs the jury, stating [**788] distinctly the matter to which the party[***62] objects and the grounds of the objection. Upon request of any party, the court shall receive objections out of the hearing of the jury. An appellate court, on its own initiative or on the suggestion of a party, may however take cognizance of any plain error in the instructions, material to the rights of the defendant, despite a failure to object.
 
We have long interpreted these rules and their predecessors to mean that a court does not err when it omits an instruction or, in this case, further amplification, that was never requested.

   The Supreme Court has established, in capital sentencing proceedings, "that the sentencer may not be precluded from considering, and may not refuse to consider, any constitutionally relevant mitigating evidence, and that the State may structure the jury's consideration of mitigation so long as it does not preclude the jury from giving effect to it." Weeks v. Angelone, 528 U.S. 225, 120 S. Ct. 727, 732, 145 L. Ed. 2d 727, 68 U.S.L.W. 4060 (2000). In Ware's case, the jury was explicitly instructed to consider youthful age as a mitigating factor. The instruction given by the trial court was a correct statement of the law, and the jury[***63] did not ask for any supplemental instruction as to the meaning of youthful age. n13 [*696] There is no reasonable likelihood that the jury applied the instruction in a way that prevented the consideration of constitutionally relevant evidence of the statutory factor of youthful age. See Buchanan v. Angelone, 522 U.S. 269, 276, 118 S. Ct. 757, 139 L. Ed. 2d 702 (1998); Mills v. Maryland, 486 U.S. 367, 108 S. Ct. 1860, 100 L. Ed. 2d 384 (1988). There was no error.

 n13 Subsequent to this Court's opinion in Lovell v. State, 347 Md. 623, 702 A.2d 261 (1997), the Maryland State Bar Association, Inc., Criminal Pattern Jury Instruction (MPJI-CR) 7:00, addressing the mitigating circumstance of youthful age, was revised to read as follows:

   (5) The youthful age of the defendant at the time of the crime. A defendant who is under the age of 18 at the time of the crime cannot be sentenced to death. Youthful age is a flexible and relative concept and is not measured solely by chronological age. Youth, in its ordinary meaning, is equated with immaturity. It is for you to determine if the defendant, who was (age) at the time of the crime, was of youthful age. In making that determination, you should consider such factors as the defendant's chronological age, mental development, learning, and life experience, as they bear on the defendant's degree of maturity.
 
See MPJI-CR 7:00 (1986, 1999 Supp.).

   We strongly recommend that trial judges' instructions on youthful age include the more expanded explanation of youthful age.

[***64]
 
C. Jury Sentencing

   Appellant argues that the trial court erred in failing to take remedial action when Appellant elected to be sentenced by the jury despite his counsel's strong recommendation that he be sentenced by the court. Just before the sentencing hearing began, defense counsel told the court that counsel and Appellant disagreed as to the choice of the sentencing authority. Appellant argues that, under the circumstances, the court was obliged, sua sponte, to make an adequate inquiry of Appellant to ascertain that he was competent to make the decision to be sentenced by a jury, one that was against his counsel's recommendation. He also argues that, because he elected to be sentenced by a jury, against the advice of his counsel, and because he disagreed with his counsel about the advisability of being sentenced by the jury, the court should have conducted a hearing to determine whether counsel could continue to represent him. At a minimum, Appellant argues, the court should have granted him a postponement to allow his counsel to prepare for a jury sentencing. It is the State's position that the record demonstrates clearly Ware's competency, despite the strategic[***65] dispute with his attorneys, and that there was no need for the court to take any further action with respect to Ware's competency to elect the mode of sentencing.

   [**789] [*697]

   On the day the sentencing proceeding began, Appellant was questioned by his counsel regarding his election to be sentenced by the jury:

   [DEF. ATT'Y:] Mr. Ware, we have had an opportunity to discuss this matter at length on many occasions. We are now at the stage of these proceedings where the sentence or--there is going to be--a sentencing determination is going to have to be made. You have been found guilty of two counts of first degree premeditated murder, and as a result the State is seeking to have a death sentence imposed.

   Basically whatever sentencing authority--whatever authority sentences you, will have three options available to them. They will have the option of life, life without the possibility of parole and death.

   You have to make the decision as to which authority you want to sentence you. In other words, you can be sentenced by the same jury that has found you guilty at the guilt/innocence stage, or you can elect to waive your right to a jury sentencing and present your mitigation and agree to have Judge[***66] Thieme basically be the sentencing authority. Do you understand that?

   DEFENDANT: Yes, sir.

   [DEF. ATT'Y:] Now, we have had an opportunity to discuss this issue of how to proceed on sentencing on many occasions. Is that correct?

   DEFENDANT: Yes, sir.

   [DEF. ATT'Y:] We have discussed it--well, I have been in the case since last October, October of last year. But before I got in the case, you also discussed the issue of how you wanted to proceed at the time of sentencing with Mr. Wachs, who was your prior attorney, and Mr. Gunning. Is that correct?

   DEFENDANT: Yes, sir.

   [DEF. ATT'Y:] And during all of those previous discussions, the discussions you had with Mr. Wachs and the discussions you had with Mr. Gunning and the discussions [*698] that you had with me, up until yesterday you had indicated that you believed that it would be in your best interest to proceed by way of court sentencing. Is that correct?

   DEFENDANT: Yes, sir.

   [DEF. ATT'Y:] And we discussed the pros and cons and the advantages and disadvantages to proceeding by way of a jury sentencing versus a Court sentencing. Is that correct?

   DEFENDANT: Yes, sir.

   [DEF. ATT'Y:] Now, yesterday you--well, before I get to yesterday, [***67]we had been preparing on the basis of your representations and our conversations. We have been preparing--if we got to this phase, we had been preparing to proceed by way of a Court sentencing up until yesterday. Is that correct?

   DEFENDANT: Yes, sir.

   [DEF. ATT'Y:] And that was based on our discussions and your indications to us as to how you wanted to proceed. Is that correct?
 
   DEFENDANT: Yes, sir.

   [DEF. ATT'Y:] Yesterday, you expressed your decision or your feeling that you wanted to proceed by way of a jury sentencing. Is that correct?

   DEFENDANT: Yes, sir.

   [DEF. ATT'Y:] And we discussed that for a long time yesterday, didn't we?

   DEFENDANT: Yes, sir.

   [DEF. ATT'Y:] Over two hours?

   DEFENDANT: Yes, sir.

   [DEF. ATT'Y:] And we strongly urged you to waive your right to jury sentencing and proceed by way of a Court sentencing. Isn't that correct?

   DEFENDANT: Yes, sir.

   [DEF. ATT'Y:] And in spite of our lengthy conversations and our virtual prayers to you to proceed by way of a Court sentencing, you indicated that you wanted to proceed by way of a jury sentencing. Is that correct?

   [**790] [*699]

   DEFENDANT: Yes, sir.

   [DEF. ATT'Y:] Once again, just to make it clear, and that was against [***68]our advice?

   DEFENDANT: Yes, sir.

   [DEF. ATT'Y:] Okay. The decision is yours. We can't tell you what to do. The final decision is yours. So, we can't sit here and tell you you have to have Court or you have to have jury sentencing.

   But I have to let you know, after consulting with colleagues in the office, it is our belief that we should, under these circumstances, really disregard your election and decide to proceed by way of a Court sentencing anyway. Do you understand that?

   DEFENDANT: Yes, sir.

   [DEF. ATT'Y:] The final decision is going to be up to Judge Thieme as to who wins out in this, because basically we are at the point now where we are not on the same page. Up until yesterday we were on the same page, that we were going to do the court sentencing. Correct?

   DEFENDANT: Yes, sir.

   [DEF. ATT'Y:] Okay. I am going to have to ask you to keep your voice up so you answers can be heard. Okay?
 
   And yesterday, we realized that our paths were no longer--that our paths had separated. Is that correct?

   DEFENDANT: Yes, sir.

   [DEF. ATT'Y:] So now, we are in the position of you stand before Judge Thieme and you say, Judge, I want a jury sentencing. Is that what you are saying? [***69]

   DEFENDANT: Yes, sir.

   [DEF. ATT'Y:] Against the pleas of my counsel?

   DEFENDANT: Yes, sir.

   [DEF. ATT'Y:] We are standing in front of Judge Thieme saying, Judge he doesn't know what he is doing. He can't be in his right mind. If he wants a jury sentencing, disregard what he wants to do, accept our election to allow this matter to be heard before the Court and allow us to [*700] waive the jury sentencing portion. Do you understand that we are differing on that?

   DEFENDANT: Yes, sir.

   [DEF. ATT'Y:] Do you understand that His Honor is going to make the final decision about that, in terms of who wins in this battle?

   DEFENDANT: Yes, sir.

   [DEF. ATT'Y:] Okay. Once again, Mr. Ware, we have gone over your age and the fact that you have never been in a mental institution or the care of a psychiatrist. We did that yesterday with your election not to testify.

   Are you under the influence of any drugs, alcohol or any other substance that would prevent you from understanding what is going on here today?

   DEFENDANT: No sir.

   [DEF. ATT'Y:] Has anyone forced you to do this? Well, strike that. This is where we are, Your Honor. An impasse.
 
The judge then addressed Appellant, and the following[***70] colloquy ensued:

   THE COURT: Mr. Ware, let me tell you what the law of this State is, and I am quoting from Gilliam v. State, 331 Md. 651, 629 A.2d 685, and I am quoting directly. "Election of a court or jury trial and/or sentencing is a decision for the defendant."

   Regardless of what your attorneys think they are going to do, the decision is yours, and I will abide by your decision. What do you want?

   DEFENDANT: Jury.

    THE COURT: That ends it.

   [DEF. ATT'Y:] Yes.

   When the attorney for the State began to take issue with the suggestion that Ware must not be in his right mind, defense counsel retracted this assertion:

   [**791] [STATE'S ATT'Y:] Your Honor, if I may? If you could, just based on some of the things that [defense counsel] said [*701] regarding it is their position that Mr. Ware must not be in his right mind, that he doesn't understand what's going on, if the Court would inquire as to any condition he may have, which would indicate that he is not in his right mind or--

   THE COURT: Did you understand what was happening this morning, Mr. Ware?

   DEFENDANT: Yes, sir.

   [DEF. ATT'Y:] And also, I understand [State's Attorney's] concern. I took some license with the[***71] language that I was using. I don't mean to imply any--

   THE COURT: I understood from the standpoint of trial strategy.

   [DEF. ATT'Y:] Exactly. I am not implying that--

   THE COURT: But let's make--

   [DEF. ATT'Y:] --he is not capable or competent to make the decision.
 
The court made further inquiry, as follows:

   THE COURT: Do you understand what was said this morning?

   DEFENDANT: Yes, sir.

   THE COURT: Do you have any questions about what your counsel has asked you?

   DEFENDANT: No, sir.

   THE COURT: You obviously had a jury the first time this case went to trial. So I assume you know about your rights for a jury or non-jury regarding the sentencing phase.

   DEFENDANT: Yes, sir
 
THE COURT: And did Judge Sweeney go through it before you in Howard County in the prior trial?

   DEFENDANT: Yes, sir.

   THE COURT: All right. Is there anything that you want to ask me about what counsel has asked you?
 
   DEFENDANT: No, sir.

   THE COURT: Do you want to consider it further?

   DEFENDANT: No, sir.

   [*702]

   THE COURT: Does the State have any further inquiries you want me to make?

   [STATE'S ATT'Y:] Your Honor, just for the record. I know it was on there yesterday.

   THE COURT: Go ahead.

   [STATE'S[***72] ATT'Y:] Has Mr. Ware--have you now or have you ever been a patient in a mental institution or under the care of a psychologist or a psychiatrist?

   DEFENDANT: Never.

   Subsequently, Appellant's counsel requested a postponement of the sentencing proceeding until mid-September, partly on the basis of Appellant's last-minute decision to be sentenced by the jury. The court denied the request for postponement.

   Criminal defendants have a Fourteenth Amendment due process right not to be tried when they are incompetent. See Thanos v. State, 330 Md. 77, 84, 622 A.2d 727, 730 (1993). In Drope v. Missouri, 420 U.S. 162, 171, 95 S. Ct. 896, 43 L. Ed. 2d 103 (1975), Chief Justice Burger, writing for the Court, explained:

   It has long been accepted that a person whose mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense may not be subjected to a trial.
 
Implementing the Supreme Court standard, Maryland Code (1982, 1994 Repl. Vol., 1999 Supp.) § 12-103(a) of the Health-General Article specifies:

   If, before or during a trial, the[***73] defendant in a criminal case appears to the court to be incompetent to stand trial or the defendant alleges incompetence to stand trial, the court shall determine, on evidence presented on the record, whether the defendant is incompetent to stand trial.
 
[**792] The Code defines "incompetent to stand trial" as "not able: (1) to understand the nature or object of the proceeding; or (2) to assist in one's defense." Id., § 12-101(e). As we noted in [*703] Thanos, "[a] defendant must, in other words, have 'present ability to consult with his lawyer with a reasonable degree of rational understanding--and . . . a rational as well as factual understanding of the proceedings against him.'" Thanos, 330 Md. at 85, 622 A.2d at 730 (quoting Dusky v. United States, 362 U.S. 402, 402, 80 S. Ct. 788, 4 L. Ed. 2d 824 (1960)).

    A defendant is presumed to be competent to stand trial. See e.g.  Colbert v. State, 18 Md. App. 632, 641, 308 A.2d 726, 731 (1973). However, § 12-103(a) of the Health-General Article places a duty on the trial court if, during trial, a defendant appears to the court to be incompetent or the defendant alleges incompetency to[***74] determine whether the defendant is in fact competent to stand trial. The court's duty is triggered in one of three ways: (1) upon motion of the accused; (2) upon motion of the defense counsel; or (3) upon a sua sponte determination by the court that the defendant may not be competent to stand trial. See Johnson v. State, 67 Md. App. 347, 358-59, 507 A.2d 1134, 1140 (1986). In addition, we have held that "a finding of competency to stand trial does not automatically result in a conclusion that an accused is also competent to waive substantial rights, such as the right to plead not guilty, the right to a jury trial, and the right to assistance of counsel." Mann v. State's Attorney for Montgomery County, 298 Md. 160, 169, 468 A.2d 124, 129 (1983).

   Under § 413(b), sentencing shall be by jury and, if waived, before the court alone. n14 See Bruce v. State, 328 Md. 594, 602, [*704] 616 A.2d 392, 396 (1992). Whether a defendant is to be sentenced by the court or the jury is a decision for the defendant. See Maryland Rule 4-246; Gilliam v. State, 331 Md. 651, 670, 629 A.2d 685, 694 (1993); Bruce, 328 Md. at 602-07, 616 A.2d at 396-98.[***75] 

n14 Section 413(b), governing the determination of the sentencing authority in a death penalty sentencing proceeding, provides as follows:

   This proceeding shall be conducted:

   (1) Before the jury that determined the defendant's guilt; or
 
(2) Before a jury impaneled for the purpose of the proceeding if:

   (i) The defendant was convicted upon a plea of guilty;

   (ii) The defendant was convicted after a trial before the court sitting without a jury;

   (iii) The jury that determined the defendant's guilt has been discharged by the court for good cause; or
 
(iv) Review of the original sentence of death by a court of competent jurisdiction has resulted in a remand for resentencing; or
 
(3) Before the court alone, if a jury sentencing proceeding is waived by the defendant.

   Ware argues that the absence of a record demonstrating a competent basis for his eleventh hour decision to elect a jury sentencing despite his attorneys advice to the contrary obligated the court to conduct, sua sponte, a competency[***76] examination. Ware's entire argument appears to be that the court must inquire, sua sponte, into the competency of a defendant, based solely on a defendant's election to be sentenced by a jury, when the choice is contrary to the recommendation of his counsel. His argument is meritless. Where there is no independent reason to question or doubt defendant's competency, no hearing or inquiry is required. Cf.  State v. Cowans, 87 Ohio St. 3d 68, 717 N.E.2d 298, 311 (Ohio 1999).

   We had occasion to discuss the trial court's obligation to inquire, sua sponte, into a defendant's competency in Thanos. Thanos was convicted of first-degree murder and sentenced to death. Over the objection of his counsel, he waived a jury on the guilt/innocence stage and the sentencing. See Thanos, 330 Md. at 84, 622 [**793] A.2d at 730. On appeal, as to his competency to waive a jury, he argued that he was not competent to make the decision to waive a jury trial and that the court should have deferred to his attorney's preference for a jury trial. His back up argument was that, even if the choice to waive a jury trial and jury sentencing were his to make, he did not do [***77]so knowingly, voluntarily, or intelligently. Thanos also argued that the "trial court failed to recognize its sua sponte obligation to inquire into his competency given his strange behavior at trial and sentencing." Id. at 85, 622 A.2d at 730 . We found no error on the trial court's failure to conduct a competency [*705] hearing.  Id. at 87, 622 A.2d at 731. The record disclosed that Thanos had the present ability to consult with his counsel with a reasonable degree of rational understanding as well as a rational and factual understanding of the proceedings against him. We also rejected his claims related to jury trial and sentencing waiver, stating:

   We find no merit in these contentions. Thanos has made no claim that the trial court erred in explaining his right to be tried and sentenced by a jury. In both cases, the trial judge patiently spelled out to Thanos the alternatives and consequences involved in proceeding before a judge rather than a jury. As we noted in Treece, a decision need not be wise to be legally "intelligent." All that matters is that Thanos was "made aware of available alternatives and of the advantages and disadvantages of one[***78] choice as compared to another." Because Thanos was so informed, his arguments that he did not knowingly waive trial and sentencing by jury, and that the court should have deferred to his counsel's position on the issue of jury trial waiver, are merely extensions of his claims that he was incompetent to stand trial, which is devoid of merit for the reasons discussed in part II, supra.
 
Id. at 94, 622 A.2d at 735 (citations omitted).

   As in Thanos, Ware's competency to be sentenced by a jury was never raised before the trial court or even during the trial. It is noteworthy that, when questioned by the court, defense counsel explicitly stated that he was not suggesting that Appellant was incompetent. The record shows that defense counsel and the trial judge engaged Appellant in a colloquy concerning his election of a jury sentencing, the nature of the decision, Appellant's mental treatment/medical history, his knowledge of the procedure based on Ware I, and the absence of any influence of alcohol or drugs. Appellant's mere preference for a jury sentencing is hardly an indication that he was incompetent.

   We hold that the trial court did not err in[***79] failing to conduct, sua sponte, a competency examination. There is nothing in [*706] the record to indicate that Appellant lacked the present ability to consult with his attorneys with a reasonable degree of rational understanding or factual understanding of the proceedings. Appellant's decision to proceed with jury sentencing in light of defense counsel's recommendation to the contrary is insufficient in and of itself to trigger a competency examination.

   Appellant next argues that, when the trial court learned of Ware's sudden shift in sentencing strategy and defense counsel's self-professed unpreparedness, the trial court was required to conduct a hearing to determine whether counsel could effectively represent Appellant during the sentencing phase and whether this so-called conflict necessitated the withdrawal of counsel. Appellant concludes that it was highly doubtful that Appellant could receive effective assistance of counsel during the sentencing phase. Again, we point out that at no time before the trial court did defense counsel ask to withdraw from representing Appellant.

   If Appellant is raising an ineffective assistance of counsel claim, it is more properly raised in post-conviction[***80] proceedings. See Perry v. State, 344 Md. 204, 227-28, [**794] 686 A.2d 274, 285 (1996). Regarding Appellant's claim that the trial court should have inquired into Ware's relationship with his counsel, based on the record before us, we believe that it would have been highly inappropriate for the trial court to have interfered with that relationship at that stage of the proceedings.

   Appellant argues that the trial judge's refusal to postpone the sentencing to allow counsel additional time to prepare was an abuse of discretion requiring reversal. It is settled that the decision whether to grant a postponement is within the sound discretion of the trial judge. See, e.g., Wilson v. State, 345 Md. 437, 451, 693 A.2d 344, 351 (1997); Evans v. State, 304 Md. 487, 514, 499 A.2d 1261, 1275 (1985). Defense counsel had at least eighteen months to prepare for sentencing; he told the court as much. Appellant never specified, at trial or on appeal, how his sentencing case might [*707] have been presented differently if he had had more time. We find no abuse of discretion in denying the postponement.
 
D. Denial of Motion to Preclude Death Penalty Proceeding[***81]

   Appellant argues that the trial court erred in denying his motion to preclude the State from seeking the death penalty based on alleged prosecutorial misconduct that resulted in the reversal of his conviction in Ware I. n15 Appellant filed two pre-trial motions addressed to the capital sentencing proceeding: a motion to dismiss the death notice due to prosecutorial misconduct and a motion to bar subsequent prosecution of the case. Both motions were based entirely on the alleged misconduct of the prosecutor before and during Ware's first trial as it relates to Edward Anderson and any State's promise of leniency for his testimony. The trial judge denied the motions, ruling as follows:

n15 In Ware I, we reversed Ware's conviction and sentence because the prosecution failed to disclose information, as required by Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), that the State's witness Edward Anderson had a motion pending at the time of trial for reconsideration of his life sentence in an unrelated case. See Ware I, 348 Md. at 54-55, 702 A.2d at 716.

[***82]

   As to the motions, the three motions that [defense counsel] argued, the first was the motion to dismiss the death notice due to prosecutorial misconduct, the court denies. As to the motion to bar subsequent prosecution because of prosecutorial misconduct, the court denies. And as to the motion to preclude the testimony of prospective witness Anderson, the court denies that.[ n16 ] All of those motions were predicated on prosecutorial misconduct, and if there is to be any sanctions along the lines that the defense is urging, it will have to come from the Appellate Courts, not from this court. So for those reasons, the court denies these motions.

n16 Appellant has not appealed the trial court's denial of his motion to exclude Anderson as a witness.

   Appellant's argument is two-fold before this Court. He argues that fundamental fairness requires that the State be precluded from again seeking the death penalty. He also [*708] argues that Maryland's common law of double jeopardy bars the State from seeking the death[***83] penalty. The essence of his argument is that a genuine sanction for serious prosecutorial overreaching is necessary, beyond that of a reversal of the conviction and new trial, to create strong incentive for prosecutors to "play by the rules." n17 Both arguments fail.

n17 Appellant has abandoned his trial argument that the court should bar the entire prosecution, addressing his argument in this Court solely to the imposition of the death penalty.

   The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution n18 protects against successive [**795] prosecution as well as cumulative punishment and is applicable to the States through the Fourteenth Amendment. See State v. Griffiths, 338 Md. 485, 489, 659 A.2d 876, 878 (1995); Brown v. Ohio, 432 U.S. 161, 166, 97 S. Ct. 2221, 53 L. Ed. 2d 187 (1977); Benton v. Maryland, 395 U.S. 784, 793, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969). Even though the Maryland Constitution has no express double jeopardy provision, [***84] there is protection against it under Maryland common law. See Gianiny v. State, 320 Md. 337, 347, 577 A.2d 795, 799 (1990); Pugh v. State, 271 Md. 701, 705, 319 A.2d 542, 544 (1974); State v. Barger, 242 Md. 616, 619, 220 A.2d 304, 306 (1966).

n18 The Double Jeopardy Clause provides: "nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb."

   The aspect of double jeopardy law that we are concerned with in this case is retrial following reversal upon a defendant's successful appeal. n19 A retrial following a reversal has always been permitted, see e.g., Lockhart v. Nelson, 488 U.S. 33, 38, 109 S. Ct. 285, 102 L. Ed. 2d 265 (1988); Ball v. United States, 163 U.S. 662, 16 S. Ct. 1192, 41 L. Ed. 300 [*709] (1896), with the exception of a reversal based upon the insufficiency of the evidence. See United States v. DiFrancesco, 449 U.S. 117, 130, 101 S. Ct. 426, 66 L. Ed. 2d 328 (1980)[***85] ; Burks v. United States, 437 U.S. 1, 11, 98 S. Ct. 2141, 57 L. Ed. 2d 1 (1978); Mackall v. State, 283 Md. 100, 113, 387 A.2d 762, 769 (1978); Fields v. State, 96 Md. App. 722, 744, 626 A.2d 1037, 1048 (1993).

n19 In this complex area of jurisprudence, the Supreme Court has said:

   The decisional law in the [double jeopardy] area is a veritable Sargasso Sea which could not fail to challenge the most intrepid judicial navigator.
 
Albernaz v. United States, 450 U.S. 333, 343, 101 S. Ct. 1137, 67 L. Ed. 2d 275 (1981).

   Appellant looks to the mistrial/retrial species of double jeopardy as support for his argument that retrial should be barred as a sanction for prosecutorial misconduct. He seeks not only an application of the principles of Oregon v. Kennedy, 456 U.S. 667, 102 S. Ct. 2083, 72 L. Ed. 2d 416 (1982), but an extension of the principles articulated in that case. Kennedy dealt only with the species of federal double[***86] jeopardy where a mistrial is declared at the request of the defendant. In the mistrial/retrial situation, the general rule is that the protection against double jeopardy is waived when a defense-requested mistrial is granted, see United States v. Scott, 437 U.S. 82, 93, 98 S. Ct. 2187, 57 L. Ed. 2d 65 (1978), and Cornish v. State, 272 Md. 312, 318, 322 A.2d 880, 884 (1974), unless, under the very narrow exception set out in Kennedy, the mistrial motion was precipitated by judicial overreaching or deliberate prosecutorial misconduct intended to provoke or goad the defendant into making the motion. In Kennedy, the Supreme Court held that the circumstances under which such a defendant may invoke the bar of double jeopardy in a second effort to try him are limited to those cases in which the conduct giving rise to the successful motion for a mistrial was intended to provoke the defendant into moving for a mistrial.
  
456 U.S. at 679.

   The Court was careful to point out that retrial following reversal on appeal--the situation presented in the instant case--is governed by a different principle. "This Court has consistently held that[***87] the Double Jeopardy Clause imposes no limitation upon the power of the government to retry a defendant who has succeeded in persuading a court to set his [*710] conviction aside, unless the conviction has been reversed because of the insufficiency of the evidence." 456 U.S. at 676 n.6. Kennedy provides no support for the proposition that barring capital re-prosecution is an appropriate response to the State's failure to disclose exculpatory evidence in violation of its obligation under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). Appellant has not [**796] identified any case where the United States Supreme Court has extended Kennedy to situations where convictions have been reversed on appeal due to prosecutorial misconduct and the retrial has been barred by double jeopardy. The short answer is that the standard announced in Kennedy has nothing to do with this case.

   Appellant concedes that his capital re-sentencing proceeding was not barred by the Double Jeopardy clause of the United States Constitution. No motion for mistrial based on prosecutorial misconduct was ever made, nor was a mistrial declared. Instead, Appellant was convicted[***88] and sentenced to death, followed by a reversal on appeal. He is asking this Court "to mold Maryland's law of double jeopardy under common law principles [to hold that] . . . where as here the State violates the rules in a manner potentially leading to the execution of a human being, the appropriate sanction is to preclude the possibility that the accused will be put to death as a result of a subsequent proceedings in the same case." Appellant's brief at 65. Thus, we must decide whether Maryland common law double jeopardy principles bar a capital re-sentencing proceeding when the defendant never asked for a mistrial on the ground of prosecutorial misconduct.

   Appellant urges this Court to adopt, as a matter of common law, a stricter approach to double jeopardy than that taken in Kennedy, in order to sanction prosecutorial misconduct, at least in death penalty cases. To punish a prosecutor for creating grounds for reversal by violating the precepts of Brady, however, is not among the purposes of double jeopardy protection. "To require a criminal defendant to stand trial again after he has successfully invoked a statutory right of [*711] appeal to upset his first conviction is not [***89]an act of governmental oppression of the sort against which the Double Jeopardy Clause was intended to protect." United States v. Scott, 437 U.S. 82, 91, 98 S. Ct. 2187, 57 L. Ed. 2d 65 (1978). As we stated in Tichnell v. State, 297 Md. 432, 440-41, 468 A.2d 1, 5 (1983):

   [Judicial misconduct] is significant for purposes of double jeopardy when a mistrial is declared at the behest of the defendant. . . . When a defendant's trial is completed and his conviction later reversed on appeal, different rules pertain. With some exceptions, the defendant who successfully challenges his conviction may be retried, under the rationale that "the defendant wiped the slate clean and the parties may start anew." Jones v. State, 288 Md. 618, 625, 420 A.2d 1241, 1244 (1980), cert. denied, 449 U.S. 1115, 101 S. Ct. 928, 66 L. Ed. 2d 845 (1981).
 
 Cf.  Booth v. State, 301 Md. 1, 481 A.2d 505 (1984) (holding that pretrial prosecutorial misconduct does not result in double jeopardy bar unless intentionally calculated to result in mistrial); Bell v. State, 286 Md. 193, 205-06, 406 A.2d 909, 915-16 (1979)[***90] (holding that, even when prosecutorial misconduct results in mistrial, double jeopardy does not bar retrial unless misconduct committed intentionally to force mistrial).

   Although we do not condone the actions of the prosecutor in Ware I, we believe that Appellant was accorded the relief to which he was entitled--reversal of his conviction on appeal. Under the circumstances presented herein, Maryland common law principles of double jeopardy do not bar the State from seeking the death penalty at re-sentencing. We find no error in the trial court's denial of the motion to preclude re-prosecution of the death penalty.

   A Brady violation has been treated consistently as a "violation of an accused's due process right to a fair trial where the failure undermined confidence in the trial's outcome." Ex Parte Mitchell, 977 S.W.2d 575, 578 (Tex. Ct. Crim. App. 1997). The remedy for a Brady/due process violation is the reversal of the judgment of conviction and remand of the case for further proceedings, including retrial. See Kyles v. [*712] Whitley, 514 U.S. 419, 115 [**797] S. Ct. 1555, 131 L. Ed. 2d 490 (1995); United States v. Bagley, 473 U.S. 667, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985);[***91] Brady, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194. We see no sound reason to impart a different standard.

   Other state courts similarly have declined to extend state law so as to bar, on double jeopardy grounds, retrials following reversals based on prosecutorial misconduct. See e.g.  Fugitt v. State, 253 Ga. 311, 319 S.E.2d 829, 833-34 (Ga. 1984); State v. Chase, 335 N.W.2d 630, 632 (Iowa 1983); State v. Swartz, 541 N.W.2d 533, 580-81 (Iowa Ct. App. 1995); State v. Sage, 31 Ohio St. 3d 173, 510 N.E.2d 343, 353-54 (Ohio 1987); Ex parte Mitchell, 977 S.W.2d at 580-81. The same is true for some federal courts. See e.g.  Beringer v. Sheahan, 934 F.2d 110, 114 (7th Cir. 1991) (holding that a "defendant who did not move for a mistrial on the basis of intentional prosecutorial misconduct cannot invoke the double jeopardy clause to bar the state from retrying him after his conviction is reversed on that ground"). But see United States v. Wallach, 979 F.2d 912, 916 (2d Cir. 1992) (holding that double jeopardy bars retrial after reversal of conviction where[***92] there has been intentional prosecutorial misconduct "undertaken, not simply to prevent an acquittal, but to prevent an acquittal that the prosecutor believed at the time was likely to occur in the absence of his misconduct"). n20

n20 Ware's claim would fail even under the Wallach exception.

 
E. The Constitutionality of Maryland's Death Penalty Statute

   Appellant argues that Maryland's death penalty statute is unconstitutional. Specifically, he argues that the statute is unconstitutional because the statute (a) requires the defendant to prove mitigating circumstances by a preponderance of the evidence; (b) requires the defendant to establish that non-enumerated mitigating circumstances are mitigating circumstances; and (c) requires a sentence of death where aggravating circumstances outweigh mitigating circumstances by only [*713] a preponderance of the evidence. We have addressed these claims over the years and have rejected them. See Conyers v. State (Conyers II), 354 Md. 132, 198-99, 729 A.2d 910, 945 (1999);[***93] Wiggins v. State, 324 Md. 551, 582-83, 597 A.2d 1359, 1374 (1991) (finding no merit in challenges to defendant's burden regarding statutorily recognized and other mitigating factors or to burden of proof). Appellant presents no arguments that persuade us to reconsider those earlier decisions.
 
F. Determinations Required by Section 414(e)

   Although Appellant does not address the issue, we are required by Article 27, § 414(e) to make certain determinations regardless of whether any error is assigned.  See Thanos v. State, 330 Md. 77, 97, 622 A.2d 727, 737 (1993). We make the following determinations:

   (1) The sentence of death was not imposed under the influence of passion, prejudice, or any other arbitrary factor;

   (2) The evidence supports the jury's findings of a statutory aggravating circumstance under § 413(d); and
 
(3) The evidence supports the jury's findings that the aggravating circumstances outweigh the mitigating circumstances.

   JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AFFIRMED. 
 
Dissenting Opinion follows:

DISSENTBY: Bell

DISSENT:  
Dissenting opinion by Bell, C.J.

   In this case, acknowledging the continuing[***94] validity of Bohnert v. State, 312 Md. 266, 539 A.2d 657 (1988) n1 and, despite [**798] [*714] declaring it distinguishable n2 in its application to the facts sub judice, the majority holds that the testimony of Edward Anderson, a critical witness for the State, was inadmissible. Anderson was permitted to testify in front of the jury, the trier of fact, that certain law enforcement officers, i.e., a prosecutor with the Anne Arundel County State's Attorney's office and a police detective, testified at his sentence reduction hearing that "[he] was being truthful in bringing them this information [about] the petitioner's involvement in the murders with which he was charged. The petitioner challenged Anderson's credibility by attempting to prove that the motivation for his testimony was leniency. Thus, the petitioner's cross examination of Anderson concerned Anderson filing a motion for modification of sentence prior to the petitioner's first trial, his bringing to the attention of the sentencing judge that he was a State's witness in the petitioner's trial, and the fact that a prosecutor and a police detective involved in the investigation of the murder with which the petitioner[***95] was charged were called to testify at Anderson's modification hearing. Consequently, Anderson's testimony in this regard was designed to, and did, bolster his credibility for the jury.

n1 Bohnert v. State, 312 Md. 266, 278, 539 A.2d 657, 663 (1988) makes clear "that a witness, expert or otherwise, may not give an opinion on whether he believes a witness is telling the truth. Testimony from a witness relating to the credibility of another witness is to be rejected as a matter of law." We also said in Bohnert, "it is ... error for the court to permit to go to the jury a statement, belief, or opinion of another person to the effect that a witness is telling the truth or lying."   Id. at 277, 539 A.2d at 662. 

n2 In Bohnert, a social worker, testifying as an expert, was allowed to say, based only on the child's statements, that a child was the victim of sexual abuse. We held that testimony invaded the province of the jury because it was in effect a declaration that the child was telling the truth and that the defendant in the case was lying. See 312 Md. at 276, 278-79, 539 A.2d at 662-63. The majority distinguishes Bohnert and this case, as follows:

   "In Bohnert, the State called a witness before the jury to bolster the credibility of another witness. In this case, we merely have the self-serving statement of the witness saying that others thought he was being truthful. Here we have Anderson basically saying: I am telling you the truth. I am telling you also that two others said I am telling you the truth."
 
360 Md. 650, 679, 759 A.2d 764, 779, 2000 Md. LEXIS 595, *34 (2000).

[***96]

   Having determined that Anderson's testimony concerning the prosecutor and the police detective was inadmissible and, thus, that its admission was error, the majority then holds that the error was harmless. It reasons that the distinction it has [*715] drawn reduces the prejudicial impact of the evidence.  360 Md. at 679, 759 A.2d at 779, 2000 Md. LEXIS 595, *34. Then it asserts:

   "Anderson made a self-serving statement to the effect that certain persons not present once affirmed, on an unknown basis, his truthfulness in making the statements he again made at trial. Such a statement, by a witness whose credibility is in question, is far less weighty than the expert in Bohnert, and its effect on the jury was likely to be insignificant. Moreover, it is implicit that the police believed Anderson or they would not have gone to bat for him at the hearing on his motion to reduce his sentence."
 
360 Md. at 714, 759 A.2d at 798, 2000 Md. LEXIS 595, *34-35. I do not agree and, so, dissent.

   Once again, I find myself engaged in what sometimes seems like a never-ending battle to protect the integrity and vitality of the harmless error rule. See my dissenting opinions in Jensen v. State, 355 Md. 692, 718, 736 A.2d 307, 320 (Md. 1999);[***97] Evans v. State, 333 Md. 660, 711, 637 A.2d 117, 136 (1994); Bruno v. State, 332 Md. 673, 696, 632 A.2d 1192, 1204 (1993); Rubin v. State, 325 Md. 552, 591, 602 A.2d 677, 696 (1992). This is so despite the clarity of the statement of the rule in Dorsey v. State, 276 Md. 638, 350 A.2d 665 (1976), and the frequency with which it has been repeated with approval and thus reaffirmed, since. But as this case and those that precede it, to some of which I have just referred, demonstrate, to state the [**799] rule accurately is not necessarily to apply it appropriately.

   The test of harmless error focuses on the effect of erroneously admitted, or excluded, evidence on the verdict rendered by the jury. As enunciated in Dorsey, the rule is:

   "When an appellant, in a criminal case, establishes error, unless a reviewing court, upon its own independent review of the record, is able to declare a belief, beyond a reasonable doubt, that the error in no way influenced the verdict, such error cannot be deemed "harmless" and a reversal is mandated. Such reviewing court must thus be satisfied that there is no reasonable possibility that the[***98] evidence complained [*716] of--whether erroneously admitted or excluded--may have contributed to the rendition of the guilty verdict."
 
276 Md. at 659, 350 A.2d at 678 (footnote omitted). Once it has been determined that error was committed, reversal is required unless the error did not influence the verdict; the error is harmless only if it did not play any role in the jury's verdict. The reviewing court must exclude that possibility "beyond a reasonable doubt."

   Moreover, an appellate court reviewing a trial court verdict must apply the harmless error rule consistently with its role; it should not take on the role of the trier of fact and substitute its judgment for that of the jury or the trial court whose verdict is under review. That would be to usurp the function of the trier of fact and that is not allowed. n23 See, e.g., Daniels v. State, 24 Md. App. 1, 7, 329 A.2d 712, 716 (1974) ("We may not usurp the function of the jury by holding that the eyewitnesses should be believed over the alibi evidence."). See also  Shelton v. State, 198 Md. 405, 412, 84 A.2d 76, 80 (1951) ("This Court will not inquire into or measure[***99] the weight of the evidence, and will not reverse the judgment if there is any proper evidence before the jury on which to sustain a conviction.");  Alexander v. Tingle, 181 Md. 464, 467, 30 A.2d 737, 738 (1943) ("The Court had not the authority to direct the jury that the evidence established a certain fact even though the evidence was uncontradicted and highly persuasive. The Court could not thus usurp the function of the jury to weigh the credibility of the evidence."); Collins v. State, 14 Md. App. 674, 679, [*717] 288 A.2d 221, 224 (1972) ("The weight of the evidence and the credibility of witnesses are matters within the realm of the jury."); Wilkins v. State, 11 Md. App. 113, 127, 273 A.2d 236, 243 (1971) ("The weight of evidence and the credibility of the witnesses [are] for the jury."). In this regard, what I said in dissent in Rubin has relevance here:

 n23 There was a time when the Court of Appeals refused to pass upon the question of the sufficiency of evidence to establish the crime with which the accused is charged for the reason that such action would usurp the constitutional function of the jury. See, e.g.,  Berger v. State, 179 Md. 410, 416-17, 20 A.2d 146, 149 (1941). At that time, it was well settled that, because, "under the Maryland Constitution, art. 15, sec. 5, the jury are the judges of both the law and the facts in the trial of all criminal cases in the State," "the question of the legal sufficiency of evidence in a criminal case to sustain a conviction is exclusively for the jury to determine." Id. at 416, 20 A.2d at 149 (citing Deibert v. State, 150 Md. 687, 695, 133 A. 847, 851 (1926)); Willie v. State, 153 Md. 613, 617, 139 A. 289, 291 (1927).

 

[***100]

   "No matter how strong a case for conviction the State may present, even when the defense presents no evidence, the court may not direct a verdict for the State. See Maryland Rule 4-324, which, while providing that a defendant may move for judgment of acquittal, Rule 4-324(a), and the court may direct the entry of judgment in his or her favor if there is insufficient evidence, as a matter of law, Rule 4-324(b), makes no provision for the making of a motion for judgment by the State. Compare Maryland Rule 2-519, the civil counterpart.  Lyles v. State, 308 Md. 129, 135, 517 A.2d 761, 764 (1986). This is so because it is the trier of fact, whether the court or a jury, that must determine if the State has met its burden [**800] of proof. To make that determination, the trier of fact is required to find the facts and when, as is usually the case, there are credibility issues, to resolve them. That, in turn, involves weighing the evidence. Appellate courts do not find facts or weigh evidence, 'what evidence to believe, what weight to be given it, and what facts flow from that evidence are for the jury ... to determine.' Dykes v. State, 319 Md. 206, 224, 571 A.2d 1251, 1260-1 (1990).[***101] See Gore v. State, 309 Md. 203, 214, 522 A.2d 1338, 1341 (1987); Wilson v. State, 261 Md. 551, 566, 276 A.2d 214, 221 (1971); Jacobs v. State, 238 Md. 648, 650, 210 A.2d 722, 723-4 (1965). Even when an appellate court assesses the sufficiency of the evidence, it does not weigh it, see  Clemson v. Butler Aviation-Friendship, 266 Md. 666, 671, 296 A.2d 419, 422 (1972); Gray v. Director, Patuxent Institution, 245 Md. 80, 84, 224 A.2d 879, 881 (1966), it only determines if any evidence exists, on the basis of which a rational trier of fact could find the elements of the crime beyond a reasonable doubt. See  [*718] Jackson v. Virginia,[ n24 ] 443 U.S. 307, 319, 99 S. Ct. 2781, 2788, 61 L. Ed. 2d 560, 573 (1979); Bloodsworth v. State, 307 Md. 164, 167, 512 A.2d 1056, 1057 (1986). There is no reason that a harmless error analysis should permit it to do more."

n24 In Jackson, the Supreme Court states:

   "The sufficiency of the evidence to support a criminal conviction must be not simply to determine whether the jury was properly instructed, but to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt (citing Woodby v. INS, 385 U.S. 276, 17 L. Ed. 2d 362, 87 S. Ct. 483 (1966)." Instead, the relevant question is whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt (citing   Johnson v. Louisiana, 406 U.S. 356, 32 L. Ed. 2d 152, 92 S. Ct. 1620 (1972))."

[***102]
 
325 Md. at 596-97, 602 A.2d at 698-99.

   Citing Dorsey, the majority declares itself "satisfied that there is no reasonable possibility that the evidence complained of ... may have contributed to the rendition of the guilty verdict." 276 Md. at 659, 350 A.2d at 678. Although mouthing the proper test, its rationale for so concluding belies its proper application. To the majority, it is significant and, indeed obvious, that Anderson's testimony, because Anderson's credibility is in issue, was "far less weighty" when compared with the expert testimony in Bohnert and, more important, "its effect on the jury was likely to be insignificant." In so concluding, rather than determining whether the evidence likely, or could have, influenced the jury verdict, the majority places itself in the shoes of the jury and, in that posture, determines the weight that it would give the evidence, attributing that weight to the jury that decided the case. Thus, rather than apply the Dorsey test, it applies the test as explained in Ross v. State, 276 Md. 664, 674, 350 A.2d 680, 686-7 (1976). In so doing, the majority expands the harmless error rule[***103] in a manner that is both unwarranted and unsupportable.

   As I explained in Rubin,
 
"The essence of this test is the determination whether the cumulative effect of the properly admitted evidence so outweighs [*719] the prejudicial nature of the evidence erroneously admitted that there is no reasonable possibility that the decision of the finder of fact would have been different had the tainted evidence been excluded (quoting  Ross, 276 Md. at 674, 350 A.2d at 686-7).

   "Thus excising the evidence admitted in error, and focusing on what remains, it concludes that a reasonable doubt simply could not have been generated from that evidence. Under that formulation, the test for harmless error is: whether, excluding the offending evidence, that which remains is sufficient to sustain the conviction and/or is, in fact, such that the case for conviction is "overwhelming." [**801] It requires, in addition to the threshold determination of sufficiency, that an appellant court weigh the evidence. So, the majority reasons, where the evidence is sufficient to convict and it is also strong enough to meet its definition of "overwhelming," only one verdict, guilty, is possible, as a matter[***104] of law; hence, that evidence cannot generate a reasonable doubt.

   "Although the Ross formulation of the test has been stated in subsequent cases, see Trusty v. State, 308 Md. 658, 668-69, 521 A.2d 749, 754 (1987), and even applied,  see Mills v. State, 310 Md. 33, 48-49, 527 A.2d 3, 10 (1987) (dicta), I have found no case which has provided a reasoned justification for it. It is significant, I think, that the error in Ross was held not to be harmless and that a factor influencing that holding was that the case was tried by a jury.  276 Md. at 674, 350 A.2d at 686-7. See also State v. Fuller, 308 Md. 547, 554, 520 A.2d 1315, 1318 (1987) (where trier of fact considered erroneously submitted evidence, case remanded to determine if, without that evidence trier of fact would reach same conclusion). In any event, that approach, in my opinion, is contrary to the role of an appellant court."

    Rubin, 325 Md. at 595-96, 602 A.2d at 698 (Bell, J. dissenting). Furthermore, applying the harmless error rule as the majority does fails to recognize that the harmless error inquiry is not simply a sufficiency of [***105]the evidence inquiry, although when the exclusion of the evidence erroneously admitted results in [*720] an insufficiency of the evidence to convict, the error can never be harmless. To be sure, such an inquiry is required to be made whenever there is a reversal of a conviction on appeal, its function is to determine if a new trial is required, not, except as indicated above, to determine if the error is sufficiently egregious to warrant reversal of the conviction. Moreover, because it is the trier of fact, in this case, the jury, and not an appellate court, that must find the facts and resolve credibility issues,
 
"what appears, on the cold record, to be an insurmountable case for the State, when viewed from the jury's perspective, having seen it unfold through live witnesses, in the dramatic atmosphere of the courtroom may be quite a close case or result in a defense verdict. How, or why, a jury may decide to resolve credibility or fact issues in a particular manner is a matter only it knows. One thing is certain, the jury is under no obligation to decide any case consistently with what is, objectively, the strongest case."

    Rubin, 325 Md. at 593, 602 A.2d at 697 (Bell, [***106] J. dissenting). Furthermore, harmless error is the exception to the general rule; it was never intended to be the general rule. In that regard, we have said that the test of harmless error "has been and should be carefully circumscribed." Younie v. State , 272 Md. 233, 248, 322 A.2d 211, 219 (1974). And the continuing validity of the majority's harmless error analysis makes what was said in People v. Jablonski, 38 Mich. App. 33, 195 N.W.2d 777, 780 (1972):

   "Continued expansion of the harmless error rule will merely encourage prosecutors to get such testimony in, since they know that, they have a strong case, such testimony will not be considered to be reversible error, yet if they have a weak case, they will use such testimony to buttress the case to gain a conviction and then hope that the issue is not raised on appeal,"
 
more significant and a matter of concern.

   Acceptance of the distinction the majority draws between Bohnert and the instant case does not warrant a different [*721] result with regard to the harmless error analysis. It may well be that the quality of the testimony of a witness seeking to buttress his own credibility is less than[***107] that of a witness deemed to be independent, testifying as an expert. I might also agree that the effect of the latter on the jury might [**802] be greater. Neither of these propositions answers the issue in this case, however. There can be a disparity in the quality of the testimony and in impact and yet the testimony of both could, and, I submit, probably would, affect the jury's verdict. Who knows what factors guide the resolution of credibility issues by individual jurors? That respected members of the law enforcement community attest to the witness' truthfulness likely will be viewed by the jury as important and worthy of credit. The source of the testimony, i.e., Anderson, may well be, or, in this case, could have been considered by the jury to be, less important than the fact that was the substance of that testimony, i.e., a prosecutor and a police detective believed what Anderson had to say about the petitioner's involvement in the crime with which the petitioner was charged. 

OFFICE OF THE GOVERNOR et al. v. WASHINGTON POST COMPANY 
No. 117, September Term, 1998
 
COURT OF APPEALS OF MARYLAND
 
360 Md. 520; 759 A.2d 249; 2000 Md. LEXIS 3591

 September  12, 2000, Filed

   PRIOR HISTORY:  [***1] Appeal from the Circuit Court for  Anne Arundel  County pursuant to certiorari to the Court of Special Appeals. Lawrence H. Rushworth, JUDGE.

DISPOSITION: JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY VACATED, AND CASE REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. PETITIONERS TO PAY TWO THIRDS OF THE COSTS AND RESPONDENT TO PAY ONE THIRD OF THE COSTS. 
CASE SUMMARY 

PROCEDURAL POSTURE:  The court issued a writ of certiorari after the Court of Special Appeals (Maryland) stayed the trial court's judgment from which defendants, governor and his office, had appealed in plaintiff newspaper's Maryland Public Information Act, Md. Code Ann., State Gov't §§ 10-611 to 10-630, suit to obtain from defendants phone and appointment records covering a six month period which defendants had refused to give.

OVERVIEW:  Under the Maryland Public Information Act (Act), Md. Code Ann., State Gov't §§ 10-611 to 10-630, plaintiff newspaper asked defendant governor's office for appointment records and all phone records of defendant governor and some of his staff for a six month period. Defendant office provided plaintiff only the aggregate cost figure for such calls, and defendant governor's public agendas. Plaintiff sued. After in camera review, the trial court ordered defendants to comply and they appealed. The appellate court stayed the trial judgment and the court issued a writ of certiorari and vacated and remanded. The Act established a general presumption in favor of disclosure. Although content of calls may have been private, phone bills for official calls were not. The factual records sought were not generally subject to executive privilege, or were they personnel records, confidential commercial information, or interagency memos. Defendants had the chance on remand to show certain records to be privileged and have them redacted. Phone records from the governor's mansion and from phones which defendant governor and the other staff had likely used very little if at all were nondisclosable.

OUTCOME:  Judgment of the trial court was vacated and the case remanded for further proceedings consistent with the court's opinion. The factual records sought were generally not subject to executive privilege or other public information act exemptions, though defendants on remand could try to show them to be. Phone records from defendant governor's home and from phones which he and the other staff had likely used very little were nondisclosable.

CORE TERMS:  governor, telephone, disclosure, exemption, appointment, inspection, public record, confidential, in camera, scheduling, duty, Maryland Public Information Act, instrumentality, custodian, exempt, confidentiality, advice, deliberative, calendar, public interest, privileged, deliberative process, public records, separation of powers doctrine, staff, Maryland Act, Federal Act, entity, negotiation, intra-agency

CORE CONCEPTS -  

Administrative Law: Governmental Information: Freedom of Information
Md. Code Ann., State Gov't § 10-618(b) provides as follows: a custodian may deny inspection of any part of an interagency or intra-agency letter or memorandum that would not be available by law to a private party in litigation with the unit. In addition, Md. Code Ann., State Gov't § 10-615 provides that a custodian shall deny inspection of a public record or any part of a public record if: by law, the public record is privileged or confidential. Md. Code Ann., State Gov't § 10-611(g) defines "public record" as the original or any copy of any documentary material that: is made by a unit or instrumentality of the state government or of a political subdivision or received by the unit or instrumentality in connection with the transaction of public business; and is in any form, including a computerized record.

Administrative Law: Governmental Information: Freedom of Information
Md. Code Ann., State Gov't § 10-613(a) provides that, unless a record is exempted by law, a custodian shall permit a person to inspect any public record at any reasonable time. Md. Code Ann., State Gov't §§ 10-615 to 10-619 provide for exemptions and permissible denials.

Civil Procedure: Appeals: Reviewability
See Md. R. App. Review, Ct. App. and Ct. Spec. App. 8-131.

Civil Procedure: Appeals: Reviewability
Both the court of special appeals and the court of appeals of Maryland each have "independent discretion" to excuse the failure of a party to preserve an issue for appellate review. Md. R. App. Review, Ct. App. and Ct. Spec. App. 8-131(a) is not absolute. Under this rule the reviewing court has discretion to consider an issue raised for the first time on appeal.

Administrative Law: Governmental Information: Freedom of Information
5 U.S.C.S. § 552 of the Federal Freedom of Information Act has been construed as not applying to the office of the president.

Administrative Law: Governmental Information: Freedom of Information
The records subject to 5 U.S.C.S. § 552 of the Federal Freedom of Information Act, unlike those subject to the Maryland Public Information Act, Md. Code Ann., State Gov't §§ 10-611 to 10-630, are "agency records." By amendments to the Federal Freedom of Information Act in 1974 "agency" was defined as follows: any executive department, military department, government corporation, government controlled corporation, or other establishment in the executive branch of the government (including the executive office of the president), or any independent regulatory agency.

Administrative Law: Governmental Information: Freedom of Information
Although 5 U.S.C.S. § 552(f) of the federal Freedom of Information Act (Act) includes the executive office of the president as an agency subject to the Act, it does not apply to the president's immediate assistants and advisers, designated collectively as the office of the president. The president's immediate personal staff or units in the executive office whose sole function is to advise and assist the president are not included within the term "agency."

Administrative Law: Governmental Information: Freedom of Information
The Maryland Public Information Act (Act), Md. Code Ann., State Gov't §§ 10-611 to 10-630, applies to "public records," not "agency records." The coverage of the Act is dependent upon the scope of the term "public records," and not upon whether the governmental entity holding the records is an "agency" rather than some other type of governmental entity.

Administrative Law: Governmental Information: Freedom of Information
The Maryland Public Information Act, Md. Code Ann., State Gov't §§ 10-611 to 10-630, broadly covers any part of Maryland government: the Public Information Act provides that the public is entitled to information regarding the affairs of government. To that end, the Public Information Act provides that the public has the right to inspect the public records of any branch of the state government. Moreover, the Public Information Act expressly states that its provisions shall be broadly construed in every instance with the view toward public access. Accordingly, in determining whether an association is an agency or instrumentality of the state within the scope of the Public Information Act, the language must be liberally construed in favor of inclusion in order to effectuate the Public Information Act's broad remedial purpose.

Administrative Law: Governmental Information: Freedom of Information
According to Md. Code Ann., State Gov't § 10-611(g), the Maryland Public Information Act, Md. Code Ann., State Gov't §§ 10-611 to 10-630, applies to any documentary material that is made by a unit or instrumentality of the state government or received by the unit or instrumentality in connection with the transaction of public business. Unlike 5 U.S.C.S. § 552 of the federal Freedom of Information Act, there is no statutory language or legislative history suggesting that any unit of the Maryland Government is exempt from the Public Information Act's coverage. Cases interpreting the Maryland Act have broadly construed the terms "public record" and "instrumentality of the state government." The offices of the governor and his staff in the State House and Shaw House in Annapolis, as well as their offices in Baltimore and Washington, are clearly encompassed by the statutory language "unit or instrumentality of the state government."

Administrative Law: Governmental Information: Freedom of Information
Apart from Md. Code Ann., State Gov't §§ 10-615 to 10-619's express exemptions, the coverage of the Maryland Public Information Act (Act), Md. Code Ann., State Gov't §§ 10-611 to 10-630, is ordinarily dependent upon whether records are those of a "government instrumentality" or are "private." Moreover, there is no single test for determining whether a statutorily-established entity is an agency or instrumentality of the state for a particular purpose, and all aspects of the interrelationship between the state and the entity must be examined. It seems obvious that bills or records of telephone calls, made by a government official or members of the official's family from their personal telephones in the family's private home, would not be considered "public records" within the meaning of the Act. In light of one's reasonable expectation of privacy in his or her own home, such records would be "private."

Governments: State & Territorial Governments: Employees & Officials
Md. Const. art. II, § 21 provides that the governor shall reside at the seat of government. The state, in the implementation of this provision, provides a home, named "Government House," for the governor and his family in the City of Annapolis. Md. Code Ann., State Gov't §§ 9-601 to 9-606 (1984, 1999 Repl. Vol.). 

Administrative Law: Governmental Information: Freedom of Information
The governor of Maryland and his family need not relinquish all normal expectations of privacy in their home simply because, in accordance with constitutional and statutory provisions, their home and furnishings, including telephone service, are supplied by the state. The general assembly, in defining "public record" as a record made by a unit or instrumentality of the state government, Md. Code Ann., State Gov't § 10-611(g), did not intend to include the home telephone bills of the governor and his family. Consequently, records of calls from telephones in Government House are not covered by the Maryland Public Information Act, Md. Code Ann., State Gov't §§ 10-611 to 10-630, and need not be disclosed.

Administrative Law: Governmental Information: Freedom of Information
Although the content of calls may be private, the bill from a telephone company to the state, for calls made from state offices by state officials or employees on state telephones during their working hours, clearly falls within the definition of "public record" in the Maryland Public Information Act, Md. Code Ann., State Gov't §§ 10-611 to 10-630.

Administrative Law: Governmental Information: Freedom of Information
The taxpayers and citizens of Maryland, as the employers of state officials and employees, have a legitimate interest in the frequency and length of personal telephone calls made on state office telephones. That interest may be vindicated, however, by disclosure of the aggregated totals of time spent and charges incurred on calls devoted to personal business versus public business. Thus, absent evidence of abuse, this degree of disclosure would be sufficient.

Administrative Law: Governmental Information: Freedom of Information
Obviously, a custodian cannot properly be ordered to produce records under the Maryland Public Information Act, Md. Code Ann., State Gov't §§ 10-611 to 10-630, when those records simply do not exist.

Administrative Law: Governmental Information: Freedom of Information
The Maryland Public Information Act, Md. Code Ann., State Gov't §§ 10-611 to 10-630, establishes a public policy and a general presumption in favor of disclosure of government or public documents.

Administrative Law: Governmental Information: Freedom of Information
See Md. Code Ann., State Gov't § 10-612(a), (b).

 Administrative Law: Governmental Information: Freedom of Information
The Maryland Public Information Act (Act), Md. Code Ann., State Gov't §§ 10-611 to 10-630, should be interpreted to favor disclosure. Concomitantly, courts must interpret the exemptions narrowly. Moreover, the public agency involved bears the burden in sustaining its denial of the inspection of public records. The custodian who withholds public documents carries the burden of justifying nondisclosure. An in camera inspection by the trial court, while not always necessary, may in some cases be needed in order to make a responsible determination on claims of exemptions. In addition, if parts of a record are exempt but other parts can be revealed, the Act favors severability. Md. Code Ann., State Gov't § 10-614(b)(3)(iii).

Administrative Law: Governmental Information: Freedom of Information
See Md. Code Ann., State Gov't § 10-616(a), (d), and (i).

Administrative Law: Governmental Information: Freedom of Information
When the governor of Maryland telephones or meets with someone for the purpose of obtaining information about a prospective appointee, a record, memorandum, or notes of the substance of their conversation might arguably fall within the freedom of information Md. Code Ann., State Gov't § 10-616(d) exemption for a "letter of reference" if the exemption is not given a strict literal interpretation. But the mere fact that the governor, or one of his staff, telephoned or met with an identified person to obtain information about a prospective appointee is certainly not "a letter of reference."

Administrative Law: Governmental Information: Freedom of Information
The term "personnel record" is not expressly defined in the Maryland Public Information Act, Md. Code Ann., State Gov't §§ 10-611 to 10-630. Nonetheless, the language of Md. Code Ann., State Gov't § 10-616(i) discloses what type of documents the legislature considers to be personnel records. The statute lists three categories of documents which are: (1) an application for employment; (2) performance rating; and (3) scholastic achievement. Although this list was probably not intended to be exhaustive, it does reflect that "personnel records" mean those documents that directly pertain to employment and an employee's ability to perform a job. Records which do not relate to the employee's hiring, discipline, promotion, dismissal, or any matter involving his status as an employee do not fit within the commonly understood meaning of the term "personnel records." The general assembly does not intend that any record identifying an employee would be exempt from disclosure as a personnel record.

Administrative Law: Governmental Information: Freedom of Information
In the context of freedom of information exemptions, the identification of the telephone number which the governor of Maryland or a member of his staff called, or the identification of someone with whom the governor met, concerning a possible future appointment to a judgeship or position in the executive branch of state government, would not amount to a "personnel record." The simple record of what number was called, or with whom the governor met, about possible future employment would not relate to the discipline, promotion, dismissal, status, job performance, or achievement of an existing or former employee. Again, while the substance of the conversations might in some cases fall in the category of "application for employment" or relate to "hiring," the fact that the governor or a staff member telephoned or met with an identified individual would not be a "personnel record" under any commonly understood meaning of the term.

 Administrative Law: Governmental Information: Freedom of Information
See Md. Code Ann., State Gov't § 10-617(d).

Administrative Law: Governmental Information: Freedom of Information
In the contest of freedom of information exemptions, while records, memoranda, or notes of what was said during conversations might amount to "confidential commercial information," the fact that the governor of Maryland or his chief of staff made a telephone call to a particular number is not itself, standing alone, "commercial" information. In order to so qualify, they would need to explain, for in camera consideration by the court, why the record of each such allegedly sensitive telephone call, if turned over to a freedom of information requester, would place it in the position of potentially jeopardizing government projects or negotiations at critical stages of development. As the trial court considers any exemption claimed under Md. Code Ann., State Gov't § 10-617(d), it may consider in the balancing test how the staleness that inheres by virtue of the passage of time affects the "confidential" nature of any assertedly protected information.

Administrative Law: Governmental Information: Freedom of Information
See Md. Code Ann., State Gov't § 10-617(e).

Administrative Law: Governmental Information: Freedom of Information
With two exceptions, the Maryland Public Information Act, Md. Code Ann., State Gov't §§ 10-611 to 10-630, flatly exempts from disclosure the home telephone numbers of state or local government employees. If a trial court requires the submission of the state employees' names in order to verify that numbers are in fact telephone numbers of state employees, such submission should be in camera.

Administrative Law: Governmental Information: Freedom of Information
Md. Code Ann., State Gov't § 10-618 gives a custodian discretion to deny inspection of parts of specified categories of public records if the custodian believes that such inspection would be contrary to the public interest. One of those categories consists of "interagency or intra-agency letters or memoranda."

Administrative Law: Governmental Information: Freedom of Information
See Md. Code Ann., State Gov't § 10-618(a), (b).

Administrative Law: Governmental Information: Freedom of Information
Regardless of whether records might be exempt from freedom of information disclosure as "privileged" material under Md. Code Ann., State Gov't § 10-615(1), a bill from a telephone company or a simple scheduling record does not constitute "an interagency or intra-agency letter or memorandum" under Md. Code Ann., State Gov't § 10-618(b). Under the language of 5 U.S.C.S. § 552(b)(5) of the federal Freedom of Information Act, which contains an exemption for interagency or intra-agency memoranda or letters and which is worded the same as § 10-618(b), the courts hold that the exemption is limited to documents created by government agencies or agents, or by outside consultants called upon by a government agency to assist it in internal decisionmaking. A bill from a telephone service provider, charging for the listed telephone calls made, is not a document from a government agency or agency consultant employed to assist the agency in its decision-making function.

Administrative Law: Governmental Information: Freedom of Information
 Bills from telephone companies and simple listings of the persons who have appointments with the governor are not, under any ordinary meaning of the Maryland Public Information Act's, Md. Code Ann., State Gov't §§ 10-611 to 10-630, language, letters or memoranda. "Correspondence" means "communication by letters." Md. Code Ann., State Gov't § 10-618(b).

Administrative Law: Governmental Information: Freedom of Information
Only certain types of letters and memoranda fall within the freedom of information exemption in Md. Code Ann., State Gov't § 10-618(b). As a threshold matter, however, to come within the exemption a document must be an "inter-agency or intra-agency letter or memorandum."

Administrative Law: Governmental Information: Freedom of Information
The Maryland Public Information Act, Md. Code Ann., State Gov't §§ 10-611 to 10-630, does not contain a general "catchall" public interest freedom of information exemption. Instead, for a record to be exempt from disclosure because of the "public interest," it must fall within one of the specific categories set forth in Md. Code Ann., State Gov't § 10-618.

Administrative Law: Governmental Information: Freedom of Information
5 U.S.C.S. § 552 of the federal Freedom of Information Act applies only to "agency records." Not all records made by or received by a federal governmental unit or instrumentality constitute "agency records." The Maryland Public Information Act, Md. Code Ann., State Gov't §§ 10-611 to 10-630, on the other hand, uses the term "public record" which includes "any documentary material" which is "made by a unit or instrumentality" of the government and "is in any form." Consequently, cases deciding whether governmental documents are "agency records" within the meaning of the federal statute are not very pertinent in determining whether a governmental document is disclosable under the Maryland Public Information Act.

Administrative Law: Governmental Information: Freedom of Information
The New Jersey "Right-To-Know Law" gives a right of access only to records "required by law to be made, maintained or kept," and that telephone bills do not fall within such category. The Maryland Public Information Act, Md. Code Ann., State Gov't §§ 10-611 to 10-630, is not limited to public records which are required by law to be made, maintained, or kept. Furthermore, unlike the public information acts in some states, the Maryland Public Information Act does not contain an exemption for particular cases whenever the disclosure of a record might cause an "unwarranted invasion of privacy."

Administrative Law: Governmental Information: Freedom of Information
Md. Code Ann., State Gov't § 10-615(1) requires a custodian of a public record to deny inspection if by law the record is privileged. Certain governmental documents need not be disclosed under the doctrine commonly known as "executive privilege" which is part of Maryland common law. Consequently, if records, or any part of them, are nondisclosable under the executive privilege doctrine, then such records or parts of records are exempt from disclosure under § 10-615(1).

Administrative Law: Governmental Information: Freedom of Information
See Md. Code Ann., State Gov't § 10-615.

Constitutional Law: State Constitutional Operation & Amendment
 See Md. Const. Declaration of Rights art. 8.

Evidence: Privileges: Governmental Privilege
The name "executive privilege" is an overly narrow term, because the privilege extends beyond the executive branch of government. As it has roots in the constitutional doctrine of separation of powers, a similar privilege extends to the judicial and legislative branches as well. The same overall privilege has gone by other names, such as the privilege for "governmental secrets," the "state secret" privilege, the "official information" privilege, the "deliberative process" privilege, the "pre-decisional" privilege, etcetera.

Evidence: Privileges: Governmental Privilege
Administrative Law: Governmental Information: Freedom of Information
The necessity for some protection from disclosure clearly extends to confidential advisory and deliberative communications between officials and those who assist them in formulating and deciding upon future governmental action.

Constitutional Law: The Presidency: Executive Privilege
Evidence: Privileges: Governmental Privilege
The cases throughout the country, both federal and state, have recognized the doctrine of executive privilege which, in addition to state and military secrets, gives a measure of protection to the deliberative and mental processes of decision-makers. The privilege is for the benefit of the public and not the governmental officials who claim the privilege. The privilege is not absolute, and in many situations courts have engaged in a balancing process, weighing the need for confidentiality against the need for disclosure and the impact of nondisclosure upon the fair administration of justice. When a government official makes a formal claim of executive privilege for confidential communications of an advisory or deliberative nature, there is a presumptive privilege, with the burden upon those seeking to compel disclosure.

Evidence: Privileges: Governmental Privilege
In regard to factual documents as opposed to documents of an advisory or deliberative nature in the context of the executive privilege, ordinarily, memoranda consisting only of compiled factual material are disclosable. However material cannot always easily be separated into fact finding and decision making categories. Moreover, some factual material is entitled to a degree of protection under the privilege, although not to the same extent as opinions and recommendations. This would include facts obtained upon promises or understandings of confidentiality, investigative facts underlying and intertwined with opinions and advice, and facts the disclosure of which would impinge on the deliberative process. In these situations, the government's asserted reasons for nondisclosure are weighed against the litigant's need for discovery in light of the particular circumstances of each case.

Administrative Law: Governmental Information: Freedom of Information
In determining whether a document falls within the deliberative process/executive privilege freedom of information exemption, the federal courts recognize that it requires different treatment for materials reflecting deliberative or policy-making processes on the one hand, and purely factual, investigative matters on the other. However the fact/opinion dichotomy may be misleading, and should not be applied in a mechanical or unthinking manner. The privilege is intended to protect the deliberative process of government and not just deliberative material.

Administrative Law: Governmental Information: Freedom of Information
In some circumstances the disclosure of even purely factual material may so expose the deliberative process that it must be deemed exempted from freedom of information disclosure. In short, the focus is less on the nature of the records sought and more on the effect of the records' release. The key question is whether the disclosure of materials would expose an agency's decisionmaking process in such a way as to discourage candid discussion within the agency and thereby undermine the agency's ability to perform its functions. Even if the content of a document is purely factual, it is nonetheless exempt from public scrutiny if it is actually related to the process by which policies are formulated or "inextricably intertwined" with "policy-making processes."

Administrative Law: Governmental Information: Freedom of Information
Disclosing the identity of persons with whom the governor has met and consulted may be the functional equivalent of revealing the substance or direction of the governor's judgment and mental processes; such information may indicate which interests or individuals he deemed to be of significance with respect to critical issues of the moment. A "presumptive privilege" does not attach to such records upon the claim of executive privilege, and the burden is upon the governor to establish that the records are privileged.

Evidence: Privileges: Governmental Privilege
The executive privilege doctrine is not for the benefit of the public officials or those giving advice to the public officials, but is for the benefit of the public. Although the substance of what an adviser tells a public official may be entitled to some protection under the executive privilege doctrine, nothing suggests that executive privilege permits nondisclosure of every adviser's name. The privilege for confidential communications of an advisory or deliberative nature does not extend so far as to keep secret the names of all advisers.

Evidence: Privileges: Governmental Privilege
Administrative Law: Governmental Information: Freedom of Information
There is no general executive privilege for public officials' office telephone bills or scheduling records. That does not preclude the governor's office from attempting to show, in a suit calling for disclosure, that because of identified special circumstances, disclosure of a specific telephone number, or certain specific numbers, or disclosure of specific scheduling records, will interfere with the deliberative process in the governor's office.

COUNSEL: ARGUED BY: Lawrence P. Fletcher-Hill, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General, on brief) of Baltimore, MD. REARGUED BY: Carmen M. Shepard, Deputy Attorney General, FOR APPELLANTS.
 
ARGUED BY AND REARGUED BY: Jonathan J. Frankel (Stephen H. Sachs, Patrick J. Carome, Tarnisha A. Graves, Wilmer, Cutler & Pickering, on brief) of Washington, DC. OF COUNSEL: Eric N. Lieberman of Washington, DC, FOR APPELLEE.

JUDGES: ARGUED BEFORE: Bell, C.J.; Eldridge, Rodowsky, Chasanow, Raker, Wilner, and Cathell, JJ. REARGUED BEFORE: Bell, C.J.; Eldridge, Rodowsky, Raker, Wilner, Cathell, and Harrell, JJ. Opinion by Eldridge, J. Dissenting Opinion by Cathell, J. in which Bell, C.J., joins. Dissenting Opinion by Raker, J.

OPINIONBY: Eldridge

OPINION: [**252]

   [*526]

   Opinion by Eldridge
 
Filed: September 12, 2000

   This case involves the extent to which telephone bills for telephones used by the Governor and two of his staff members, and the Governor's unpublished appointment schedules, are subject to public disclosure under the Maryland Public Information Act, Maryland Code (1984, 1999 Repl. Vol.), §§ 10-611 through 10-630 of the State Government Article. n1

n1 Unless otherwise indicated, all statutory references are to the Maryland Public Information Act, §§ 10-611 through 10-630 of the State Government Article, hereafter sometimes referred to simply as "the Act."

[***2]
 
I.

   In November and December 1996, the Washington Post Company (the Post), through its agents, reporters Mary Pat Flaherty and Charles Babington, requested telephone and scheduling records, pursuant to Maryland's Public Information Act, from the Office of the Governor. Ms. Flaherty's request sought the telephone records of "the Governor and his staff" over a two-year period, including "all phones in the Governor's Mansion [Government House]; his State House offices; all phones in Shaw House (an[**253] annex office in Annapolis); all phones in the Washington and Baltimore offices; all car phones and cellular phones used by the governor and anyone on his staff."
 
Mr. Babington's request for appointment or scheduling records was limited to the Governor but also spanned a two-year period. He requested "all calendars indicating the persons, times, dates, and locations of meetings involving Governor Glendening in his official capacity as governor. This should include meetings [*527] in his State House office as well as those in Baltimore and other places where the governor conducts business."
 
Both requests were granted in part and denied in part.

   The Office of the Governor (the Office) [***3] provided Ms. Flaherty with the aggregate cost of the telephone calls specified in her request; however, it denied the release of any "call detail," including the date, time, and length of each call. The Office asserted executive privilege, citing § 10-618(b) of the Act and this Court's opinion in Hamilton, Superintendent v. Verdow, 287 Md. 544, 414 A.2d 914 (1980), as well as cases in other states holding that telephone and scheduling records are exempt from disclosure under their corresponding public information acts. n2 The Office released the Governor's public agendas to Mr. Babington but denied the remainder of his request, stating that the appointment or scheduling records were not "public records" within the meaning of § 10-611(g) of the Act, and also invoking executive privilege, citing § 10-618(b) and Hamilton. n3

n2 Section 10-618(b) of the Maryland Public Information Act provides as follows:

   "(b) Interagency and intra-agency documents. - A custodian may deny inspection of any part of an interagency or intra-agency letter or memorandum that would not be available by law to a private party in litigation with the unit."
 
In addition, § 10-615 provides in pertinent part that "[a] custodian shall deny inspection of a public record or any part of a public record if: (1) by law, the public record is privileged or confidential . . . ."

[***4] 

n3 Section 10-611(g) of the Act defines "public record" as "the original or any copy of any documentary material that:

   (i) is made by a unit or instrumentality of the State government or of a political subdivision or received by the unit or instrumentality in connection with the transaction of public business; and
 
(ii) is in any form, including . . . a computerized record . . . ."

   Negotiations between the parties continued throughout much of 1997, and during that time the Post narrowed its request. With respect to telephone records, the Post limited its request to the telephone records of calls by the Governor, Chief of Staff Major E. Riddick, Jr., Senior Advisor Susan Smith-Bauk, and Secretary of State John F. Willis, over the [*528] six-month period from February 1, 1996, through July 31, 1996. In addition, Mr. Babington's original request for appointment records was also limited to the same six-month period. Despite these changes, the Office still refused to comply with the Post's request.

   As a result, on December 4, 1997, the Post brought suit in the Circuit Court for Anne Arundel County[***5] against the Office of the Governor and Governor Parris Glendening. Under the Post's complaint, the records sought were those asked for after the Post had narrowed its request, namely records of telephone calls by specified individuals and appointments of the Governor, covering only the six-month period. The Office and the Governor filed a motion for summary judgment, claiming that all of the records fell within § 10-618(b) and the doctrine of executive privilege. They also argued that public disclosure of the Governor's daily schedules, even after the fact, would pose a threat to the personal security of the Governor and those around him. n4[**254] In addition, they claimed that some of the documents were also exempt from disclosure under other sections of the Act, specifically the exemptions for [*529]records containing confidential personnel information ( §§ 10-616(d) and (i)), confidential commercial information ( § 10-617(d)), confidential employee information ( § 10-617(e)), or confidential financial information ( § 10-617(f)). The defendants argued that these specific exemptions under the Act would require redactions that were "virtually impossible to accomplish." Finally, they argued[***6] that the Post's request for the telephone records of Secretary of State Willis was barred because he had not been joined as a party to the action.

n4 The Governor's appointment or scheduling records consisted of four types of documents: (1) a handwritten appointment book; (2) an electronic "working" schedule; (3) the last-edited version of the working schedule; and (4) the Governor's personal daily schedule, printed for him on a note card. The handwritten appointment book is created by Ms. Joanne Trumbule, the Governor's Director of Scheduling, and her immediate staff, by penciling in the many requests for meetings with the Governor. This book also includes the Governor's personal appointments and family engagements. The same group of people then prepare the electronic working schedule, which includes "the time, location, persons attending, and staff person responsible for the designated activity." Some entries also include the subject matter of the appointment or event. Personal activities are also noted on the working schedule. The working schedule is distributed by electronic mail to the Governor's staff for input, and then is refined further, either by canceling appointments, scheduling new appointments, or editing the specific information on already-existing appointments. The "last-edited version" of the working schedule is then used to create the Governor's personal daily schedule, which is prepared by Ms. Trumbule or an assistant late in the afternoon of the preceding day. The personal daily schedule is distributed to the Governor, the Maryland State troopers assigned to protection of the Governor, and a small group of staff members.

[***7]

   Pursuant to an order of the court, the Governor and his office submitted in camera sample copies of the appointment schedules and telephone records, as well as affidavits from the Governor and numerous staff members, including Joanne Trumbule, the Governor's Director of Scheduling, Robert Platky, the Director of Financial Administration for the Office of the Governor, and State Police Lieutenant Gary Shields, Commander of the Governor's Protection Unit.

   The Post filed a cross motion for summary judgment, arguing that the documents at issue were not "interagency or intra-agency letters or memoranda" within the meaning of § 10-618(b) of the Act, and that, as purely factual material, the documents were not privileged. According to the Post, any threat to the Governor's security as a result of the release of the requested records, even if true, did not constitute an "independent justification recognized under the [Act] for withholding public records." Finally, the Post contended that the exemptions claimed for commercial information, financial information, and personnel records did not apply to the records at issue and that, alternatively, even if parts of the records were within[***8] such exemptions, the defendants were not justified in withholding all of the records. 

   A hearing was held on the motions for summary judgment in May 1998. In early July 1998, the Circuit Court issued an opinion and order denying the motions. The court held that the doctrine of executive privilege was incorporated into the Act in both § 10-618(b), as argued by the Office and the Governor, and also in § 10-615(1), which requires non-disclosure [*530] when "by law, the public record is privileged or confidential." As a result, the court held that whether the documents fit within the definition of "memorandum" under § 10-618(b) was irrelevant if the documents were privileged under the doctrine of executive privilege. Citing Hamilton, Superintendent v. Verdow, supra, 287 Md. 544, 414 A.2d 914, the Circuit Court found that a purpose of that privilege "is to promote the efficient operation of the government by allowing the Governor to solicit advice from a wide range of people without fear that public disclosure will restrain the free flow of that advice." The court also stated[**255] that the privilege was not absolute, and that the evidence was insufficient to determine whether the[***9] records might be privileged under § 10-618(b) and/or § 10-615(1). Accordingly, the court ordered the defendants to produce all telephone and scheduling records to the Post for which the defendants were not claiming privilege, submit to the court for an in camera review all records claimed to be privileged, and submit to the court a proposed redacted version of those records with a detailed memorandum explaining why the redacted information was privileged.

   Two weeks after the Circuit Court's opinion and order, the Post filed a motion requesting the court to set a compliance deadline for the defendants. One week later, the defendants filed a motion for clarification and reconsideration, again asking the court to recognize a categorical executive privilege as to all documents at issue and asserting that compliance with the opinion and order would be excessively burdensome. After a hearing, the court granted the Post's motion and set the compliance deadline for September 5, 1998, which was subsequently extended to September 11, 1998. The court denied the defendants' motion for reconsideration, stating that "the court does not believe that the Governor is entitled to a broad claim[***10] of executive privilege on all telephone and calendar records," but that he "may be entitled to executive privilege if [he] can prove that disclosure of particular information will adversely affect [his ability] to effectively carry-out his Constitutional duties." The court also held that the telephone records of Secretary of State John F. Willis were not within [*531] the scope of the court's July opinion and order because the Post had failed to name the Secretary of State as a party. 

   The Office and the Governor on September 11, 1998, submitted a limited group of records to the Post, including the telephone records from the business line in Mr. Riddick's home, other telephone records at issue with call detail redacted so that only the cost was revealed, and reimbursement receipts for personal calls made by Mr. Riddick and Ms. Smith-Bauk for the six months at issue. They submitted to the court, for in camera review, unredacted copies of the telephone and calendar records with proposed redactions highlighted, as well as a memorandum and affidavits in support of those redactions.

   On September 15, 1998, the Post filed a motion to unseal the in camera explanations for the redactions, [***11] and thereafter argument on this motion was heard before the Circuit Court. The court issued its final order on October 23, 1998, in which it held "that the Defendants, with limited exceptions, have failed to make a particularized showing as to executive privilege, and further have failed to satisfy the statutory burden of demonstrating that the records at issue are exempt from mandatory disclosure under the Maryland Public Information Act."

   The court granted the Post's motion to unseal the in camera explanations, and ordered that the Office and the Governor produce to the Post "complete and unredacted copies of all of the telephone and calendar records at issue . . . ." Finally, in anticipation of an appeal, the court stayed the execution of the order and retained the records submitted in camera for ninety-six hours.

   The Office and the Governor immediately filed a notice of appeal and sought a stay of the Circuit Court's judgment. The Court of Special Appeals granted the motion to stay the judgment. Before any further proceedings in the Court of Special Appeals, this Court issued a writ of certiorari.  Office of the Governor v. Washington Post, 352 Md. 309, 721 A.2d 988 (1998).[***12]

   [*532]

   II.

   As noted earlier, supra note 3, the Maryland Public Information Act in § 10-611(g) defines "public record" as "the original or any copy of any documentary material[**256] that: (i) is made by a unit or instrumentality of the State government or of a political subdivision or received by the unit or instrumentality in connection with the transaction of public business . . . ." Section 10-613(a) provides that, unless a record is exempted by law, a custodian "shall permit a person . . . to inspect any public record at any reasonable time." Sections 10-615 through 10-619 provide for exemptions and permissible denials.
 
A.

   A threshold question in this case, raised during the course of questioning by the Court at the initial oral argument, is whether the Act is applicable to the Office of the Governor. This issue had not been raised below and had not been briefed by the parties. As might be expected, however, the defendants suggest that the Act is not applicable and the plaintiff contends that it is fully applicable. n5

n5 Maryland Rule 8-131(a) states as follows:

   "Rule 8-131. Scope of review.

   (a) Generally. The issues of jurisdiction of the trial court over the subject matter and, unless waived under Rule 2-322, over a person may be raised in and decided by the appellate court whether or not raised in and decided by the trial court. Ordinarily, the appellate court will not decide any other issue unless it plainly appears by the record to have been raised in or decided by the trial court, but the Court may decide such an issue if necessary or desirable to guide the trial court or to avoid the expense and delay of another appeal."
 
Nevertheless, because the second sentence of the above-quoted rule begins with the word "ordinarily," both "the Court of Special Appeals and this Court each have 'independent discretion' to excuse the failure of a party to preserve an issue for appellate review." Moosavi v. State, 355 Md. 651, 661, 736 A.2d 285, 290 (1999), quoting Squire v. State, 280 Md. 132, 134-135, 368 A.2d 1019, 1020 (1977). See Gindes v. Khan, 346 Md. 143, 151, 695 A.2d 163, 167 (1997) ("Rule 8-131(a) is not absolute . . . . Under this rule the Court has discretion, which we have exercised on occasion, to consider an issue raised for the first time on appeal").

   Moreover, we shall be remanding this case to the Circuit Court for further proceedings, and the issue of the applicability of the Act to the defendants is a threshold issue of law. Thus, it is the type of issue contemplated by the final clause of Rule 8-131(a). In sum, we shall exercise our discretion to consider the issue.

[***13]

   [*533]

   The Maryland Act, originally enacted and codified in 1970 as Maryland Code (1957, 1975 Repl. Vol.), Art. 76A, §§ 1 through 5, was to some extent modeled after the Federal Freedom of Information Act, 5 U.S.C. § 552, enacted in 1966. The Federal Act has been construed as not applying to the Office of the President. See Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136, 100 S. Ct. 960, 63 L. Ed. 2d 267 (1980). By analogy, it was suggested that the State Act should not apply to the Office of the Governor. Because the text and history of the Maryland Act differ from the language and history of the Federal Act in several significant ways, however, we believe that this analogy is flawed.

   The records subject to the Federal Act, unlike those subject to the Maryland Act, are "agency records." Although that term was not originally defined in the Federal Act, by amendments to the Act in 1974 "agency" was defined as follows (5 U.S.C. § 552(f)):

   "any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government[***14] (including the Executive Office of the President), or any independent regulatory agency."
 
This section of the Federal Act was construed by the Supreme Court in Kissinger v. Reporters Committee for Freedom of the Press, supra, 445 U.S. 136, 100 S. Ct. 960, 63 L. Ed. 2d 267. In that case, a journalist, William Safire, sought written transcripts of telephone conversations between Henry Kissinger n6 and certain White House officials[**257] concerning "leaks," and any calls mentioning Mr. Safire's name. The Supreme Court upheld the denial of the request, holding that, although the [*534] Federal Act includes the "Executive Office of the President" as an agency subject to the Act, it did not apply to the President's immediate assistants and advisers, designated collectively as the Office of the President. The Court reached this conclusion based upon the House Conference Report for § 552(f) of the Federal Act which stated: "the President's immediate personal staff or units in the Executive Office whose sole function is to advise and assist the President" are not included within the term "agency." Kissinger, 445 U.S. at 156, 100 S. Ct. at 971, 63 L. Ed. 2d at 285,[***15] quoting H.R.Conf.Rep.No. 93-1380, p.15 (1974). As Mr. "Safire's request was limited to a period of time in which Kissinger was serving as Assistant to the President," the Court held that the telephone records were not "agency records" at the time they were made.  445 U.S. at 156, 100 S. Ct. at 971, 63 L. Ed. 2d at 285.

n6 Mr. Kissinger was Assistant to the President for National Security Affairs from January 1969 until November 1975, and was Secretary of State from September 1973 until January 20, 1977.

   Although this issue has not been revisited in the Supreme Court, the scope of the Federal statute has been addressed by the United States Court of Appeals for the District of Columbia Circuit. That court has viewed the 1974 amendment to the Federal Act as a codification of its earlier holding in Soucie v. David, 145 U.S. App. D.C. 144, 448 F.2d 1067 (D.C.Cir. 1971). In Soucie, the court held that the Office of Science and Technology was an "agency" subject to the Federal Act because[***16] it had "substantial independent authority," and, therefore, its "sole function" was not "to advise and assist the President." 448 F.2d at 1073, 1075. In Meyer v. Bush, 299 U.S. App. D.C. 86, 981 F.2d 1288, 1297 (D.C. Cir. 1993), the court held that President Reagan's Task Force on Regulatory Relief, headed by then Vice President Bush, and composed of several Cabinet members, was not an "agency" subject to the statute because it did not have "'substantial independent authority.'" See Rushforth v. Council of Economic Advisers, 246 U.S. App. D.C. 59, 762 F.2d 1038 (D.C.Cir. 1985) (Council of Economic Advisers is not an agency subject to Federal Act); Pacific Legal Found. v. Council on Envtl. Quality, 205 U.S. App. D.C. 131, 636 F.2d 1259 (D.C.Cir. 1980) (Council on Environmental Quality is an agency subject to the statute).

   The Maryland Act applies to "public records," not "agency records." The coverage of the Act is dependent upon the [*535] scope of the term "public records," and not upon whether the governmental entity holding the records is an "agency" rather than some other type of governmental entity. Although this Court has examined the[***17] status of particular entities in order to determine if their records were covered by the Act, such examinations were for the purpose of deciding whether the entities were private or governmental. In each of these cases, the entities argued that they were private and that, for this reason, their records were not "public records" subject to disclosure under the Act. In each case, this Court held that the entities were governmental instrumentalities for purposes of the Act and that, therefore, their records were covered by the Act.

   For example, in holding that the Maryland Insurance Guaranty Association was a governmental instrumentality for purposes of the Act, this Court in A.S. Abell Pub. Co. v. Mezzanote, 297 Md. 26, 32, 464 A.2d 1068, 1071 (1983), emphasized that the Act broadly covers any part of Maryland government:

   "The Public Information Act provides that the public is entitled to information regarding the affairs of government . . . . To that end, the Public Information Act provides that the public has the right to inspect the public records of any branch of the State government . . . . Moreover, the Public Information Act expressly states that its provisions[***18] 'shall be broadly construed in every instance with the view toward public access,' . . . . Thus, the provisions of the Public Information Act reflect the legislative intent that citizens of the State of Maryland be accorded wide-ranging access to public information[**258] concerning the operation of their government. Accordingly, in determining whether MIGA is an agency or instrumentality of the State within the scope of the Public Information Act, the language . . . must be liberally construed in favor of inclusion in order to effectuate the Public Information Act's broad remedial purpose." (Citations omitted).
 
And in Moberly v. Herboldsheimer, 276 Md. 211, 228, 345 A.2d 855, 864 (1975), interpreting the Public Information Act to [*536] encompass the hospital records of a corporation known as the Memorial Hospital of Cumberland, we concluded:

   "If the General Assembly did not intend this interpretation when it enacted this far reaching statute, it should so state."

   According to § 10-611(g) of the State Government Article, the Maryland Public Information Act applies to "any documentary material that . . . is made by a unit or instrumentality of the State government . . . [***19] or received by the unit or instrumentality in connection with the transaction of public business." Unlike the Federal Act, there is no statutory language or legislative history suggesting that any unit of the Maryland Government is exempt from the Public Information Act's coverage. The grounds for the Supreme Court's interpretation of the Federal Act in Kissinger v. Reporters Committee for Freedom of the Press, supra, do not exist with regard to the Maryland Act. On the contrary, the cases interpreting the Maryland Act have broadly construed the terms "public record" and "instrumentality of the State government." The offices of the Governor and his staff in the State House and Shaw House in Annapolis, as well as their offices in Baltimore and Washington, are clearly encompassed by the statutory language "unit or instrumentality of the State government."

   B.

   There are, however, certain records requested by the Post which, in our view, are not "public records" for purposes of the Public Information Act. They are the records of telephone calls made from telephones in the "Governor's Mansion" or, as it is officially named, "Government House."

   As previously discussed, [***20] apart from the statute's express exemptions, the coverage of the Maryland Public Information Act is ordinarily dependent upon whether records are those of a "government instrumentality" or are "private." A.S. Abell Pub. Co. v. Mezzanote, supra, 297 Md. at 30-31, 464 A.2d at 1070; Moberly v. Herboldsheimer, supra, 276 Md. 211, 345 A.2d 855. Moreover, "there is no single test for determining [*537] whether a statutorily-established entity is an agency or instrumentality of the State for a particular purpose," and "all aspects of the interrelationship between the State and the . . . entity must be examined," Mezzanote, 297 Md. at 35, 464 A.2d at 1072.

   It seems obvious that bills or records of telephone calls, made by a government official or members of the official's family from their personal telephones in the family's private home, would not be considered "public records" within the meaning of the Act. In light of one's reasonable expectation of privacy in his or her own home, such records would be "private."

   Article II, § 21, of the Constitution of Maryland provides in pertinent part that "the Governor shall reside at the seat of government . . . ." [***21] n7 The State, in the implementation of this provision, provides a home, named "Government House," for the Governor and his family in the City of Annapolis. See Code (1984, 1999 Repl. Vol.), §§ 9-601 through 9-606 of the State Government Article (relating to the Government House Trust).

n7 For an account of the history and purpose of this provision, see Gallagher v. Bd. of Elections, 219 Md. 192, 202-203, 148 A.2d 390, 396 (1959).

   In light of the nature of Government House and the role of the Government [**259]House Trust, the Governor and his family might not have the identical expectations of privacy while living there as one has in his or her privately owned home. Nonetheless, we do not believe that the Governor and his family must relinquish all normal expectations of privacy in their home simply because, in accordance with constitutional and statutory provisions, their home and furnishings, including telephone service, are supplied by the State.

   Unlike Chief of Staff Riddick, the Governor[***22] does not have a designated "business line" in Government House. The record in this case discloses that, with regard to the telephone bills for calls made from Government House, it would be almost [*538] impossible to determine which member of the family made particular calls or, even if it could be determined that a particular call was made by the Governor, whether it was personal or related to state business.

   We do not believe that the General Assembly, in defining "public record" as a record "made by a unit or instrumentality of the State government" ( § 10-611(g)), intended to include the home telephone bills of the Governor and his family. Consequently, records of calls from telephones in Government House are not covered by the Act and need not be disclosed. n8

n8 The defendants in the Circuit Court also "identified for redaction all personal calls placed by any one of the three officials at issue from their office locations," arguing that because a personal "call does not involve State business, the record of the call should not be considered a public record" (petitioners' brief at 46-47). We do not agree totally. Although the content of such calls may be private, the bill from a telephone company to the State, for calls made from state offices by state officials or employees on state telephones during their working hours, clearly falls within the definition of "public record" in the Act. It is a document received by a unit of government, and, in our view, it is "in connection with the transaction of public business." Although employees must occasionally make personal telephone calls from their employers' phones during working hours, the frequency of and the amount of time spent on such calls is clearly a matter of legitimate concern to the employer. This is true regardless of whether there exists a reimbursement record. The taxpayers and citizens of Maryland, as the employers of state officials and employees, have a legitimate interest in the frequency and length of personal telephone calls made on state office telephones. That interest may be vindicated, however, by disclosure of the aggregated totals of time spent and charges incurred on calls devoted to personal business versus public business. Thus, absent evidence of abuse, this degree of disclosure would be sufficient.

[***23]

   III.

   Before addressing the defendants' principal arguments that the records sought by the Post fall within the Public Information Act's exemptions, we can dispose of some matters based on availability and the scope of the Post's requests.

   The Post requested the telephone records of the Governor, Mr. Riddick, and Ms. Smith-Bauk from telephones in [*539] the State House and the Shaw House, which are both in Annapolis, from telephones in the Washington and Baltimore offices of the Governor, and from any cellular telephones used by these three individuals. The defendants produced in the Circuit Court a detailed account of the telephone system employed by the State, and the limitations of that system. In reviewing the record, we conclude that the Circuit Court should have excluded certain documents, or portions of documents, from disclosure based upon the unavailability of the documents or the Post's own limitations on the scope of its requests.

   A.

   The first group of these documents consists of the telephone records from offices outside of the State House.

   The telephone system in use in the Baltimore office, known as the "PBX system," includes a "collection device" which records all incoming[***24] and outgoing local and long distance calls to and from that office. The only other telephone records from the[**260] Baltimore office are the bills from the long distance service provider, documenting only outgoing long distance charges. The petitioners produced several affidavits in the Circuit Court stating that, although the "external" long distance bills have been retained, the "internal" information collected by the PBX system is no longer available.

   Louis LaRicci, the Deputy Director of the Division of Telecommunications in the Office of Information Technology within the Department of Budget and Management, stated in his affidavit that the billing information for the Governor's Baltimore office, for the period from February 1, 1996, to July 31, 1996, "was disposed of in the ordinary course of the Division's business." Carol Cordial, the Assistant Director of the Division of Telecommunications, stated in her affidavit that the telephone records for the Baltimore office are "written over automatically by the system" every twelve months and that, therefore, "no internal data currently is retained" for that office. The Post has not disputed these statements. The [*540] internal billing information[***25] from the Baltimore office is unavailable. Obviously, a custodian cannot properly be ordered to produce records under the Act when those records simply do not exist. 

   Although the long distance bills for the Baltimore office are currently in the possession of the Division of Telecommunications, they also need not be produced. The Post's request was limited to the telephone records of the Governor, Ms. Smith-Bauk, and Mr. Riddick. The bills from the long distance service provider for the Baltimore office indicate only the line from which the calls originated and the number to which the calls were placed. They do not indicate who placed each call. Moreover, the record shows that the Governor, Mr. Riddick, and Ms. Smith-Bauk were rarely in the Baltimore office during the time period in question. As Mr. Riddick stated in his affidavit, "I did not work in that office any more than a few times each month during the six months at issue." Ms. Smith-Bauk stated that she "did not often use . . . [the office] or the telephones there." The three officials' possible use of the telephones in the Baltimore office during the time period in question, to make long distance calls, is far too speculative[***26] for treating the bills as telephone records of the Governor, Ms. Smith-Bauk, and Mr. Riddick. Accordingly, the long distance telephone bills for the Baltimore office are beyond the scope of the Post's request for telephone records.

   For the same reason, the telephone records of calls originating in Shaw House and the Washington, D.C., office are beyond the scope of the telephone records request. The record clearly shows that none of the three officials have either offices or designated telephone lines at these locations. In addition, Chief of Staff Riddick stated in his affidavit that "I cannot recall if I ever was in the Washington office from February through July 1996, and I certainly was not there with any regularity." Ms. Smith-Bauk said essentially the same thing in her affidavit. The record is clear that the use of the telephones in both Shaw House and the Washington office by the three officials would have been rare, if it occurred at [*541] all, during the period in question. Consequently, the request for telephone billing records from these locations should also have been denied.

   B.

   The telephone records from the State House are numerous and complex. These records document only[***27] long distance calls. Carol Cordial, the Assistant Director of the Division of Telecommunications, explained this system in detail in her affidavit. To summarize, the offices of the Governor and Ms. Smith-Bauk are located within the same suite of offices, which is served by eighteen separate telephone lines. Five other people work in that suite and use the telephones. Because use of[**261] the different telephone instruments within the entire suite is not restricted, anyone within the suite can use any one of the instruments and, therefore, could access all eighteen lines. As a result, the telephone bills reveal the lines from which individual calls are made but do not, and cannot, reveal who placed each call. Mr. Riddick's office, which is located in a separate suite, is also served by numerous telephone lines (seven in all), which can be accessed on separate instruments. Three assistants to Mr. Riddick also work in this suite and use the telephones. Again, the records from Mr. Riddick's office do not reveal who placed the individual calls. 

   To repeat, the Post's telephone records request was limited to the calls of the Governor, Mr. Riddick, and Ms. Smith-Bauk. Based on the scope of the [***28]request as well as the uncontradicted evidence, we believe that the trial court erred by not limiting the number of telephone lines at issue in the State House. Although it is difficult to determine who placed each call listed on the voluminous telephone bills, the lines at issue can be limited based upon the individual to whom the specific lines were assigned, and by whom they were most easily accessed and most frequently used. The Governor could access five lines directly from his immediate office, and Ms. Smith-Bauk could access six lines directly from her office (three of which were the same as three of the lines that the Governor could access). Finally, Mr. Riddick could access six [*542]lines from his office. Fourteen lines in all, they were designated in the record below as lines A, B, C, D, E, N, O, P, S, U, V, W, X, and Y. These are the lines from which it is reasonable to conclude that the three officials made most, if not all, of their calls while in the State House.

   Therefore, we have limited the telephone records at issue to: (1) the fourteen lines from the State House as designated above, and (2) the cellular telephones assigned to the Governor, Ms. Smith-Bauk, and Mr. Riddick. [***29]These records are available and are, generally, within the scope of the Post's request. Nevertheless, redactions within these records would seem to be in order because some individual entries appear to be beyond the scope of the Post's request.

   C.

   In the records and documents submitted to the Circuit Court for in camera review, several items were designated as "Other Persons' Calls," meaning that they were made by persons other than the Governor, Ms. Smith-Bauk, and Mr. Riddick. Kelly Derthick, Executive Assistant to the Governor, Jennifer Crawford, Special Assistant to the Governor, and Anne Budowski, Senior Assistant to Chief of Staff Riddick, stated in their affidavits that they reviewed the telephone records from the State House and that they identified calls which they made themselves or which were placed by staff members other than the three officials. Ms. Budowski and Andrea Leahy-Fucheck, then Legal Counsel to the Governor, also stated in their affidavits that they reviewed the schedules of the Governor and the Chief of Staff and were able to identify time periods during which the two officials were out of the office and therefore could not have placed telephone calls. [***30] All of these calls were specifically identified and placed within the "Other Persons' Calls" category in the material submitted to the trial court in camera. Unless, upon remand, the Circuit Court believes that it needs further information regarding the source of these calls, they would seem to be beyond the scope of the Post's request and should be redacted.

   [*543]

   The material submitted to the Circuit Court in camera also categorized individual calls placed on the cellular phones assigned to the Governor, Ms. Smith-Bauk, and Mr. Riddick. Similar to the calls identified as being made by "other persons" in the State House, calls from the three cellular phones assigned to the Governor were frequently made by the Maryland State Police troopers in the Executive Protection[**262] Unit and did not involve conversations of the Governor. Captain Gary Shields, Commander of the Executive Protection Unit, stated in his affidavit that he reviewed the bills from the Governor's three cellular phones and, "based on the identification of the numbers called, the length of the calls, and their relationship to other calls," he was "reasonably certain" that calls categorized in the "In Camera Schedule" under[***31] the heading "Executive Protection Unit" were calls by the troopers and not by the Governor. Again, unless the trial court on remand believes that it needs more information, these calls appear to be beyond the scope of the Post's request and should be redacted from the records.

   D.

   As noted earlier, supra note 4, the Governor's scheduling records include wholly personal meetings and family engagements. The defendants argue that such records should be exempt from disclosure. According to the Post's brief in this Court, "the Post advised the Circuit Court that it would not object to the redaction of calendar items corresponding to family events . . . so long as there was a proper evidentiary showing supporting such redactions." (Respondent's brief at 45, n.29). The Circuit Court made no specific ruling that the defendants' evidentiary showing in this regard was insufficient. Upon remand, unless the trial court desires more evidence that a particular calendar item is entirely personal or family, these items should be redacted based on the Post's representation.

   IV.

   We next address the defendants' arguments that various portions of the records fall within specific Public Information[***32] [*544] Act exemptions in §§ 10-616(d) and (i) (letters of reference and personnel records), 10-617(d) (commercial information), 10-617(e) (home addresses and telephone numbers of state or local government employees), and 10-618(b) (interagency or intra-agency letters or memoranda). n9

n9 In the Circuit Court, in their motion for summary judgment, the defendants also relied upon the exemption for "financial information" in § 10-617(f). They have not relied upon this exemption on appeal and thus have abandoned any argument based on § 10-617(f). With regard to the meaning and scope of the "financial information" exemption, see Kirwan v. The Diamondback, 352 Md. 74, 84-87, 721 A.2d 196, 201-202 (1998).

   A.

   Preliminarily, however, it would be useful to underscore certain well-established general principles governing the interpretation and application of the Maryland Public Information Act. This Court recently reiterated in Kirwan v. The Diamondback, 352 Md. 74, 80-81, 721 A.2d 196, 199 (1998),[***33] that 
 
"the Maryland Public Information Act establishes a public policy and a general presumption in favor of disclosure of government or public documents. The statute thus provides ( § 10-612(a) and (b) of the State Government Article):

   '(a)  General Right to information. -- All persons are entitled to have access to information about the affairs of government and the official acts of public officials and employees.

   (b) General construction. -- To carry out the right set forth in subsection (a) of this section, unless an unwarranted invasion of the privacy of a person in interest would result, this Part III of this subtitle shall be construed in favor of permitting inspection of a public record, with the least cost and least delay to the person or governmental unit that requests the inspection.'"
 
Accordingly, as we pointed out in Kirwan, 352 Md. at 84, 721 A.2d at 200, "the statute should be interpreted to favor disclosure." See also, e.g., Office of the Attorney General v. [*545] Gallagher, 359 Md. 341, 343, 753 A.2d 1036, 1037 (2000) ("the Act is to be construed in favor of disclosure");[**263] State Prosecutor v. Judicial Watch, 356 Md. 118, 134, 737 A.2d 592, 601 (1999) [***34]("It is the policy of this State that its citizens have 'access to information about the affairs of government'"); Fioretti v. Maryland State Board of Dental Examiners, 351 Md. 66, 73, 716 A.2d 258, 262 (1998) (the statute embodies the principle that citizens "'be accorded wide-ranging access to public information'"); Baltimore v. Maryland Committee, 329 Md. 78, 80-81, 617 A.2d 1040, 1041 (1993); Cranford v. Montgomery County, 300 Md. 759, 771, 481 A.2d 221, 227 (1984) ("Without doubt the bias of the Md. Act is toward disclosure"); Faulk v. State's Attorney for Harford County, 299 Md. 493, 506-507, 474 A.2d 880, 887 (1984); A.S. Abell Publishing Co. v. Mezzanote, supra, 297 Md. at 32, 464 A.2d at 1071; Superintendent v. Henschen, 279 Md. 468, 473, 369 A.2d 558, 561 (1977); Haigley v. Dept. of Health, 128 Md. App. 194, 226-227, 736 A.2d 1185, 1201-1202 (1999). Concomitantly, "courts must interpret the exemptions narrowly," Fioretti v. Board of Dental Examiners, supra, 351 Md. at 77, 716 A.2d at 264.

   Moreover, "the public agency involved bears the burden[***35] in sustaining its denial of the inspection of public records." Fioretti, 351 Md. at 78, 716 A.2d at 264. See Cranford v. Montgomery County, supra, 300 Md. at 771, 481 A.2d at 227 ("The custodian who withholds public documents carries the burden of justifying nondisclosure"). An in camera inspection by the trial court, while not always necessary, may in some cases be "needed in order to make a responsible determination on claims of exemptions." Cranford, 300 Md. at 779, 481 A.2d at 231. In addition, if parts of a record are exempt but other parts can be revealed, the Act favors severability. See § 10-614(b)(3)(iii); Cranford, 300 Md. at 774, 481 A.2d at 228-229.

   B.

   In the material submitted to the Circuit Court for in camera review, the defendants identified certain appointment [*546] or scheduling records and telephone records which, they claimed, fell within the Act's exemptions set forth in §§ 10-616(d) and (i). Section 10-616 provides in pertinent part as follows:

   "(a) In general. -- Unless otherwise provided by law, a custodian shall deny inspection of a public record, as provided in this section. [***36]

   * * *

   "(d) Letters of reference. -- A custodian shall deny inspection of a letter of reference.

   * * *

   "(i) Personnel records. -- (1) Subject to paragraph (2) of this subsection, a custodian shall deny inspection of a personnel record of an individual, including an application, performance rating, or scholastic achievement information.

   (2) A custodian shall permit inspection by:

   (i) the person in interest; or
 
(ii) an elected or appointed official who supervises the work of the individual."

   The telephone records which allegedly fell within the above-quoted exemptions were described as "Call to _____ re personnel matter" or "Call to ______ re appointments" or "Call to _______ re judicial appointments." n10 The appointment records, typically, would include the date and then read as follows: "2:30 pm - 3:00 pm _______ interview [Govs offc]" or "3:30 - 4:30 pm _________ re: Green Bag appointments at Govs offc," or "11:00 a.m. - 11:15 a.m. Interview, _______, _______ County District Court [Gov's offc.] *Andrea," or "1:30[**264] pm - 2:15 pm Interview w ________ for ________ [Govs offc] *Judi." n11

n10 The material submitted to the Circuit Court for in camera review actually identified the recipients where we have employed blanks.

[***37] 

n11 Again, the material submitted to the court below in camera actually identified the person with whom the Governor was meeting and the particular position involved.

   [*547]

   The defendants' argument, that the above-described types of records should have been redacted pursuant to § 10-616(d) and (i), finds no support in the plain language of the statute or the cases applying the "personnel records" exemption.

   Clearly, none of the above-described records constitutes a "letter of reference." When the Governor telephones or meets with someone for the purpose of obtaining information about a prospective appointee, a record, memorandum, or notes of the substance of their conversation might arguably fall within the exemption for a "letter of reference" if the exemption is not given a strict literal interpretation. But the mere fact that the Governor, or one of his staff, telephoned or met with an identified person to obtain information about a prospective appointee is certainly not "a letter of reference."

   With regard to the "personnel records" exemption, this Court in Kirwan, 352 Md. at 82-83, 721 A.2d at 200,[***38] stated:

   "The term 'personnel record' is not expressly defined in the statute. Nonetheless, the language of subsection (i) discloses what type of documents the Legislature considered to be personnel records. The statute lists three categories of documents which are: (1) an application for employment; (2) performance rating; and (3) scholastic achievement. Although this list was probably not intended to be exhaustive, it does reflect a legislative intent that 'personnel records' mean those documents that directly pertain to employment and an employee's ability to perform a job."
 
The Court went on in Kirwan to point out that records which
 
"do not relate to [the employee's] hiring, discipline, promotion, dismissal, or any matter involving his status as an employee . . . . do not fit within the commonly understood meaning of the term 'personnel records.'" 352 Md. at 83, 721 A.2d at 200.
 
We concluded in the Kirwan opinion by stating that, in light of the Act's policy favoring disclosure, the General Assembly did not intend "that any record identifying an employee would be exempt from disclosure as a personnel record." 352 Md. at 84, 721 A.2d at 200.[***39]

   [*548]

   The identification of the telephone number which the Governor or a member of his staff called, or the identification of someone with whom the Governor met, concerning a possible future appointment to a judgeship or position in the executive branch of state government, would not amount to a "personnel record" as defined in Kirwan. The simple record of what number was called, or with whom the Governor met, about possible future employment would not relate to the discipline, promotion, dismissal, status, job performance, or achievement of an existing or former employee. Again, while the substance of the conversations might in some cases fall in the category of "application for employment" or relate to "hiring," the fact that the Governor or a staff member telephoned or met with an identified individual would not be a "personnel record" under any "commonly understood meaning of the term," Kirwan, 352 Md. at 83, 721 A.2d at 200.

   C.

   Section 10-617(d) of the Public Information Act states in relevant part as follows:

   "(d) Commercial information. -- A custodian shall deny inspection of the part of a public record that contains any of the following information[***40] provided by or obtained from any person or governmental unit:

   (1) a trade secret; [**265]

   (2) confidential commercial information . . . ."
 
The defendants argue that the affidavits of the Governor and Chief of Staff Riddick identified specific telephone calls which involved "economic development projects," or "sensitive and confidential negotiations over" such economic development projects, or "confidential efforts to resolve a strike in Maryland," or "sensitive discussions relating to a major public transportation project." (Petitioners' brief at 47-48). The defendants maintain that "the circuit court should have found those calls to be exempt from disclosure under . . . the specific statutory exemption for confidential commercial information . . . [in] § 10-617(d)." (Id. at 47).

   [*549]

   Again, while records, memoranda, or notes of what was said during these conversations might amount to "confidential commercial information," the fact that the Governor or Mr. Riddick made a telephone call to a particular number is not itself, standing alone, "commercial" information. In order to so qualify, the defendants would need to explain, for in camera consideration by the court, why the record[***41] of each such allegedly sensitive telephone call, if turned over to the Post, would place the Post in the position of potentially jeopardizing government projects or negotiations at critical stages of development. When the trial court, on remand, reconsiders any exemption claimed under § 10-617(d), as now asserted or as amplified on remand, it may consider in the balancing test how the staleness that now inheres by virtue of the passage of time affects the "confidential" nature of any assertedly protected information.

   D.

   The Public Information Act in § 10-617(e) provides:

   "(e) Public employees. -- Subject to § 21-504 of the State Personnel and Pensions Article, a custodian shall deny inspection of the part of a public record that contains the home address or telephone number of an employee of a unit or instrumentality of the State or of a political subdivision unless:

   (1) the employee gives permission for the inspection; or
  
(2) the unit or instrumentality that employs the individual determines that inspection is needed to protect the public interest."
 
The defendants assert that, in the Circuit Court, they "specifically identified 94 telephone calls to State employees[***42] at home where the telephone records thus list the employee's home telephone number. * * * [Defendants] did not argue for complete redaction of those calls; they argued only that the employees' home telephone numbers must be redacted, leaving all other data about the calls." (Petitioners' brief at 49).

   [*550]

   The Post counters that the defendants "failed to present the court with any evidentiary support for the claim -- which, at a minimum, would have needed to include the names of the alleged employees whose numbers were being withheld, so that the validity of the proposed redactions could be tested." (Respondents' brief at 43, n.26).

   The record discloses that affidavits by the Governor's Legal Counsel and by the Senior Assistant to Chief of Staff Riddick, submitted in connection with the defendants' motion for summary judgment, stated, either as a matter of the affiants' personal knowledge or of the knowledge of other staff members with whom they spoke, that the descriptions of various categories, including the category of employees' home telephone numbers, were accurate. The trial judge did not specifically find that the evidence was insufficient to show that the 94 numbers were home[***43] telephone numbers of state employees.

   With two exceptions which are inapplicable here, the statute flatly exempts from disclosure the home telephone numbers of state or local government employees. The only evidence submitted to the trial court[**266] indicates that the 94 numbers called were in fact home telephone numbers of state government employees. On remand these numbers should be redacted unless the trial court concludes that it needs more information. In this connection, we point out that, if the trial court requires the submission of the state employees' names in order to verify that the numbers are in fact telephone numbers of state employees, such submission should be in camera. It would largely defeat the exemption for public employees' home telephone numbers if their names were made public, thereby allowing anyone to look up their telephone numbers in a telephone directory. Under these circumstances, the exemption would effectively apply only to public employees with unlisted home telephone numbers. This would obviously not be consistent with the Legislature's intent.

   E.

   Section 10-618 of the Maryland Public Information Act gives a custodian discretion to deny inspection[***44] of parts of [*551] specified categories of public records if the custodian believes that such inspection would be contrary to the public interest. One of those categories consists of "interagency or intra-agency letters or memoranda." Thus, § 10-618(a) and (b) state as follows:

   " § 10-618. Permissible denials.

    (a) In general. -- Unless otherwise provided by law, if a custodian believes that inspection of a part of a public record by the applicant would be contrary to the public interest, the custodian may deny inspection by the applicant of that part, as provided in this section.

   (b) Interagency and intra-agency documents. -- A custodian may deny inspection of any part of an interagency or intra-agency letter or memorandum that would not be available by law to a private party in litigation with the unit."

   * * *
 
This permissible exemption for interagency and intra-agency letters or memoranda to some extent reflects that part of the executive privilege doctrine encompassing letters, memoranda or similar internal government documents containing confidential opinions, deliberations, advice or recommendations from one governmental employee or official to another official[***45] for the purpose of assisting the latter official in the decision-making function. Cranford v. Montgomery County, supra, 300 Md. at 772-774, 481 A.2d at 227-228. See also Hamilton, Superintendent v. Verdow, supra, 287 Md. at 553-562, 414 A.2d at 920-924.

   We shall later, in Part V of this opinion, consider whether any of the telephone and scheduling records might be exempt from disclosure under the doctrine of executive privilege and § 10-615(1) of the Maryland Public Information Act. Regardless of whether some of the records might be exempt as "privileged" material under § 10-615(1), however, it seems obvious that a bill from a telephone company or a simple scheduling record does not constitute "an interagency or intra-agency letter or memorandum" under § 10-618(b).

   [*552]

   Preliminarily, a bill from a telephone company is not created by any governmental agency or unit. Under the language of the federal Freedom of Information Act, 5 U.S.C. § 552(b)(5), which contains an exemption for interagency or intra-agency memoranda or letters and which is worded the same as § 10-618(b) of the Maryland Act, the courts have held that the exemption [***46]is limited to documents created by government agencies or agents, or by outside consultants called upon by a government agency "to assist it in internal decisionmaking." County of Madison v. United States Dep't of Justice, 641 F.2d 1036, 1040 (1st Cir. 1981). See, e.g., Van Bourg, Allen, Weinberg & Roger v. NLRB, 751 F.2d 982, 985 (9th Cir. 1985) ("exemption 5 by its terms applies only to internal agency documents or documents prepared by outsiders who have a formal relationship[**267] with the agency," and does not apply to affidavits submitted to the NLRB by private parties in the course of an investigation); Ryan v. Department of Justice, 199 U.S. App. D.C. 199, 617 F.2d 781 (D.C.Cir. 1980); Wu v. National Endowment for Humanities, 460 F.2d 1030 (5th Cir. 1972), cert. denied, 410 U.S. 926, 93 S. Ct. 1352, 35 L. Ed. 2d 586 (1973). A bill from a telephone service provider, charging for the listed telephone calls made, is not a document from a government agency or agency consultant employed to assist the agency in its decision-making function.

   Moreover, bills from telephone companies and simple listings[***47] of the persons who have appointments with the Governor are not, under any ordinary meaning of the statutory language, letters or memoranda. For example, in Times Mirror Co. v. Superior Court, 53 Cal. 3d 1325, 813 P.2d 240, 283 Cal. Rptr. 893 (1991), the Supreme Court of California construed, inter alia, an exemption from disclosure in the California Public Records Act for "Correspondence of and to the Governor or employees of the Governor's office." 53 Cal. 3d at 1336-1337, 813 P.2d at 246. The Court rejected the Governor's argument that "his calendars and schedules" constituted correspondence within the meaning of the exemption, pointing out that "correspondence" means "communication by letters." 53 Cal. 3d at 1337, [*553] 813 P.2d at 247. n12 Cf.  Taylor v. Worrell Enterprises, 242 Va. 219, 409 S.E.2d 136 (1991) (dissenting opinion of three justices took the position that telephone records of the Governor's office did not constitute "memoranda, working papers and correspondence" within an exemption in the Virginia Freedom of Information Act; one justice, in a concurring opinion, took the position that the records were within the[***48] exemption; three other justices, in the plurality opinion, based their decision on state constitutional grounds).

n12 As discussed later, the Supreme Court of California in the Times Mirror case did hold that the Governor's calendars and schedules were exempt from disclosure under a different exemption in the California statute.

   As discussed by this Court in Cranford v. Montgomery County, supra, 300 Md. at 771-776, 481 A.2d at 227-229, only certain types of letters and memoranda fall within the exemption in § 10-618(b). As a threshold matter, however, to come within the exemption a document must be an "inter-agency or intra-agency letter or memorandum." Even if those terms are given a broad scope, the telephone bills and scheduling records here involved fail to meet this threshold test.

   F.

   Finally, the defendants rely on some cases from other jurisdictions which are based on statutory language or exemptions which are different from the language and exemptions of the Maryland Public Information[***49] Act.

   A principal case relied on by the defendants is Times Mirror Co. v. Superior Court, supra, 53 Cal. 3d 1325, 813 P.2d 240. As pointed out by the Supreme Court of California in that opinion, the California Public Records Act contains "a 'catchall' exemption that permits the government agency to withhold a record if it can demonstrate that ' . . . the public interest served by not making the record public clearly outweighs the public interest served by disclosure of the record.'" 53 Cal. 3d at 1338, 813 P.2d at 247-248, emphasis in original. The Supreme [*554] Court of California decided that the Governor's "calendars and schedules" fell within this exemption, holding "that the public interest served by not disclosing the Governor's appointment calendars and schedules clearly and substantially outweighs the public interest in their disclosure." 53 Cal. 3d at 1347, 813 P.2d at 254. See also Courier-Journal v. Jones, 895 S.W.2d 6 (Ky. App. 1995), adopting the holding of the Times Mirror case in this regard. [**268]

   Nevertheless, as the defendants acknowledge, the Maryland Public Information Act does not contain a general "catchall" [***50] public interest exemption. Instead, for a record to be exempt from disclosure because of the "public interest," it must fall within one of the specific categories set forth in § 10-618. See Kirwan v. The Diamondback, supra, 352 Md. at 87-88, 721 A.2d at 202-203; Cranford v. Montgomery County, supra, 300 Md. at 770, 481 A.2d at 226-227. The records at issue in the present case fall within none of the categories delineated in § 10-618. n13

n13 There is also a provision in the Maryland Act, in § 10-619, authorizing a temporary denial of inspection based on "substantial injury to the public interest." Section 10-619 specifies a particular procedure which must be followed by the custodian who temporarily denies inspection based on the public interest. Section 10-619 was not invoked in the present case, and the defendants do not rely upon that section. See Cranford v. Montgomery County, supra, 300 Md. at 776, 481 A.2d at 229- 230.

   The defendants also rely on Bureau of Nat. Affairs v. U.S. Dept. of Justice, 239 U.S. App. D.C. 331, 742 F.2d 1484, 1496 (D. C. Cir. 1984),[***51] in which the court held that government officials' telephone message slips and certain appointment calendars that "were not distributed to other employees, but were retained solely for the convenience of the individual officials," did not constitute "agency records" within the meaning of the federal Freedom of Information Act. The court also held that "daily agendas," indicating the schedule of the head of the Department of Justice's Antitrust Division, which was circulated to certain members of his staff, were "agency records" and were disclosable.  742 F.2d at 1495. See also Washington Post v. U.S. [*555] Dept. of State, 632 F. Supp. 607 (D. D. C. 1986) (records of the Secretary of State's schedule are "agency records" and disclosable under the federal statute).

   The records which were held to be nondisclosable in the Bureau of Nat. Affairs case are dissimilar from the records involved in the case at bar. We do not have before us telephone message slips or an official's appointment calendar which is not distributed to any other employees, and we express no opinion as to the disclosability of such material under Maryland law. In addition, the records [***52] held to be disclosable in the Bureau of Nat. Affairs case appear to be similar to the Governor's scheduling records involved in the present case.

   Nonetheless, the precise statutory issue in the Bureau of Nat. Affairs case, namely whether certain documents made by a governmental unit constitute "agency records," does not arise under the Maryland Act. As discussed in Part II A of this opinion, supra, the federal statute applies only to "agency records." In light of the legislative history underlying this term and the case law construing it, not all records made by or received by a federal governmental unit or instrumentality constitute "agency records." The Maryland Act, on the other hand, uses the term "public record" which includes "any documentary material" which is "made by a unit or instrumentality" of the government and "is in any form . . . ." (Emphasis added). Consequently, cases deciding whether governmental documents are "agency records" within the meaning of the federal statute are not very pertinent in determining whether a governmental document is disclosable under the Maryland Public Information Act.

   The defendants argue that the "privacy interests" [***53] of the public officials and the persons called would be invaded by a disclosure of the Governor's office telephone records, and they cite, inter alia, the New Jersey Superior Court's opinion in North Jersey Newspaper v. Freeholders, 245 N.J. Super. 113, 584 A.2d 275 (1990), modified and remanded for further proceedings, N. J. Newspapers [*556] v. Passaic County, 127 N.J. 9, 601 A.2d 693 (1992). The Superior Court in that case held that telephone billing records of public officials were public records[**269] under the New Jersey "Right-To-Know Law" but that they were exempt from disclosure because of "the privacy interests of elected officials in the telephone calls they make while performing their public duties . . . ." 245 N.J. Super. at 121, 584 A.2d at 279. The Supreme Court of New Jersey, however, in modifying and remanding the case, held that the New Jersey "Right-To-Know Law" gave a right of access only to records "'required by law to be made, maintained or kept,'" and that telephone bills did not fall within such category.  127 N.J. at 13-14, 601 A.2d at 695. The Maryland Public Information Act is not limited to public records[***54] which are required by law to be made, maintained, or kept, and thus the ultimate holding in the North Jersey Newspapers case has little relevance in cases under the Maryland Act. Furthermore, unlike the public information acts in some states, "the Maryland Public Information Act does not contain an exemption for particular cases whenever the disclosure of a record might cause an 'unwarranted invasion of privacy.'" Kirwan v. The Diamondback, supra, 352 Md. at 89, 721 A.2d at 203.

   V.

   Section 10-615(1) of the Maryland Public Information Act, as previously noted, supra note 2, requires a custodian of a public record to deny inspection if "by law the record is privileged . . . ." n14 This Court has recognized that certain [*557] governmental documents need not be disclosed under the doctrine commonly known as "executive privilege" which is part of Maryland common law and which, to some extent, is rooted in the separation of powers principle set forth in Article 8 of the Maryland Declaration of Rights. n15 Hamilton, Superintendent v. Verdow, supra, 287 Md. at 553-562, 414 A.2d at 920-924. See also Porter Hayden v. Bullinger, 350 Md. 452, 461, 713 A.2d 962, 966 (1998);[***55] Philip Morris v. Glendening, 349 Md. 660, 678, 709 A.2d 1230, 1239 (1998); Cranford v. Montgomery County, supra, 300 Md. at 773-774, 481 A.2d at 228-229. n16 Consequently, if the records here at issue, or any part of them, are non-disclosable under the executive privilege doctrine, then such records or parts of records are exempt from disclosure under § 10-615(1) of the Maryland Public Information Act.

n14 Section 10-615 in its entirety states:

   " § 10-615. Required denials -- In general.
 
   A custodian shall deny inspection of a public record or any part of a public record if:

   (1) by law, the public record is privileged or confidential; or
 
(2) the inspection would be contrary to:

   (i) a State statute;

   (Ii) a federal statute or a regulation that is issued under the statute and has the force of law.

   (iii) the rules adopted by the Court of Appeals; or
 
(iv) an order of a court of record."

n15 Article 8 of the Maryland Declaration of Rights provides:

   "That the Legislative, Executive and Judicial powers of Government ought to be forever separate and distinct from each other; and no person exercising the functions of one of said Departments shall assume or discharge the duties of any other."

[***56] 

n16 As pointed out in Hamilton, Superintendent v. Verdow, supra, 287 Md. at 553-554 n.3, 414 A.2d at 920 n.3, the name "executive privilege" is "an overly narrow term, because the privilege extends beyond the executive branch of government. As it has roots in the constitutional doctrine of separation of powers, a similar privilege extends to the judicial and legislative branches as well."

   The Hamilton case, as well as the Cranford case, 300 Md. at 772, 481 A.2d at 227-228, also pointed out that the same overall privilege has gone by other names, such as the privilege for "governmental secrets," the "state secret" privilege, the "official information" privilege, the "deliberative process" privilege, the "pre-decisional" privilege, etc. Nevertheless, the term "executive privilege" seems to be the one most often used by lawyers and courts. 

   The doctrine of executive privilege, in addition to protecting military and diplomatic secrets, is chiefly designed to protect confidential advisory and deliberative communications to government officials. [**270] This Court in the[***57] Hamilton case thus explained (287 Md. at 558, 414 A.2d at 922):

   "[*558]

   The necessity for some protection from disclosure clearly extends to confidential advisory and deliberative communications between officials and those who assist them in formulating and deciding upon future governmental action. A fundamental part of the decisional process is the analysis of different options and alternatives. Advisory communications, from a subordinate to a governmental officer, which examine and analyze these choices, are often essential to this process. The making of candid communications by the subordinate may well be hampered if their contents are expected to become public knowledge."
 
After reviewing cases in the United States Supreme Court and other courts, we pointed out in Hamilton that
 
"the cases throughout the country, both federal and state, have recognized the doctrine of executive privilege which, in addition to state and military secrets, gives a measure of protection to the deliberative and mental processes of decision-makers." 287 Md. at 561, 414 A.2d at 924.

   The Court went on in Hamilton to hold that the privilege "is for the benefit of[***58] the public and not the governmental officials who claim the privilege" (287 Md. at 563, 414 A.2d at 924), that the privilege is not absolute, and that in "many situations the courts have engaged in a balancing process, weighing the need for confidentiality against the . . . need for disclosure and the impact of nondisclosure upon the fair administration of justice." 287 Md. at 563, 414 A.2d at 925. We also held in Hamilton that when a government official makes a formal claim of executive privilege for confidential communications "of an advisory or deliberative nature, there is a presumptive privilege, with the burden upon those seeking to compel disclosure." Ibid.

   Turning to factual documents as opposed to documents of an advisory or deliberative nature, we held in Hamilton that "ordinarily, 'memoranda consisting only of compiled factual material'" are disclosable, 287 Md. at 564, 414 A.2d at 925, quoting EPA v. Mink, 410 U.S. 73, 87, 93 S. Ct. 827, 836, 35 [*559] L. Ed. 2d 119, 132 (1973). We recognized in Hamilton, 287 Md. at 564-565, 414 A.2d at 925-926, however, that
 
"material cannot always 'easily[***59] be separated into fact finding and decision making categories,' Boeing Airplane Company v. Coggeshall, supra, 108 U.S. App. D.C. 106, 280 F.2d 654 at 662. Moreover, some factual material is entitled to a degree of protection under the privilege, although not to the same extent as opinions and recommendations. This would include facts obtained upon promises or understandings of confidentiality, investigative facts underlying and intertwined with opinions and advice, and facts the disclosure of which would impinge on the deliberative process. See, e.g., (relating to one type or another of such factual material): EPA v. Mink, supra, 410 U.S. at 92; Mead Data Cent., Inc. v. U.S. Dept. of Air Force, 184 U.S. App. D.C. 350, 566 F.2d 242, 256- 257, 260 (D.C. Cir. 1977); Brockway v. Department of Air Force, 518 F.2d 1184, 1191-1194 (8th Cir. 1975); Montrose Chemical Corporation of California v. Train, 160 U.S. App. D.C. 270, 491 F.2d 63, 66- 71 (D.C. Cir. 1974); J. H. Rutter Rex Manufacturing Co., Inc. v. N.L.R.B., 473 F.2d 223, 234-235 (5th Cir. 1973), cert. denied, 414 U.S. 822, 94 S. Ct. 120, 38 L. Ed. 2d 55 (1973); [***60]Freeman v. Seligson, 132 U.S. App. D.C. 56, 405 F.2d 1326, 1339-1340 (D.C. Cir. 1968); Machin v. Zuckert, supra, 316 F.2d 336 at 339-340; Rabbitt v. Department of Air Force, 401 F. Supp. 1206, 1209 (S.D.N.Y. 1974). In these situations, the government's asserted reasons for nondisclosure are weighed against the litigant's need for discovery in light of the particular circumstances of each case.  Frankenhauser v. Rizzo, 59 F.R.D. 339, 342-346 (E.D. Pa. 1973); O'Keefe v. Boeing Company, supra, [**271] 38 F.R.D. 329 at 334-336."
 
See also In re Sealed Case, 326 U.S. App. D.C. 276, 121 F.3d 729, 746-758 (D.C. Cir. 1997).

   Although we noted, supra Part IV F, a distinction between the statutory exception we construe here and the California statutory exemption interpreted by the California Supreme Court in Times-Mirror Co. v. Superior Court, the California Court's general observations regarding an analytical approach [*560]when considering assertions of executive privilege as to purely factual documents are worth mentioning (53 Cal. 3d 1325, 1341-1342, 813 P.2d 240, 250, 283 Cal. Rptr. 893 (citations omitted)): [***61]

   "In determining whether a document falls within the . . . [deliberative process/executive privilege exemption], the federal courts have also recognized 'that it requires different treatment for materials reflecting deliberative or policy-making processes on the one hand, and purely factual, investigative matters on the other.' The courts have readily acknowledged, however, that the fact/opinion dichotomy may be misleading, and have refused to apply it in a mechanical or unthinking manner. The privilege, as one appeals court has written, 'is intended to protect the deliberative process of government and not just deliberative material.' Accordingly, in some circumstances 'the disclosure of even purely factual material may so expose the deliberative process . . . that it must be deemed exempted . . . .' Decisions holding the exemption to be applicable even to 'purely factual material' are legion.

   "In short, the courts' focus . . . is less on the nature of the records sought and more on the effect of the records' release. The key question in every case is 'whether the disclosure of materials would expose an agency's decisionmaking process in such a way as to discourage candid[***62] discussion within the agency and thereby undermine the agency's ability to perform its functions.' Even if the content of a document is purely factual, it is nonetheless exempt from public scrutiny if it is 'actually . . . related to the process by which policies are formulated' or 'inextricably intertwined' with 'policy-making processes.'"
 
Although in the present case we need not go as far as the California Court in Times-Mirror did in applying the above analysis to its facts and legal context (because we are remanding this matter for further consideration), an example of how that court applied the analysis may be illustrative for the Circuit Court's consideration on remand (53 Cal. 3d at 1343, 813 P.2d at 251):
 
"[*561] Disclosing the identity of persons with whom the Governor has met and consulted [may be] the functional equivalent of revealing the substance or direction of the Governor's judgment and mental processes; such information [may] indicate which interests or individuals he deemed to be of significance with respect to critical issues of the moment."

   In light of the above-summarized principles, it is clear that the trial court correctly rejected the[***63] defendants' blanket claim of executive privilege encompassing all of the telephone and scheduling records here involved. Bills from telephone service providers and listings of scheduled appointments are not communications "of an advisory or deliberative nature," Hamilton, 287 Md. at 563, 414 A.2d at 925. Accordingly, under Hamilton, "a presumptive privilege" does not attach to them upon the claim of executive privilege, and the burden was upon the defendants to establish that the records were privileged. Ibid.

   Considering the defendants' assertion of an executive privilege exemption on an item-by-item basis requires application of the balancing test discussed in Hamilton. 287 Md. at 564-567, 414 A.2d at 925-927. Although the weight in the Hamilton balancing test given the request of the person seeking the governmental record was grounded in the discovery[**272] rights of a party in pre-existing litigation, n17 the initial weight accorded the plaintiff's request in the balancing test in the present case has been pre-determined legislatively by the Maryland Public Information Act's general, but explicit, disposition favoring disclosure. Because[***64] the records at issue here reflect only factual material, and there yet has been no contention made that they "include facts obtained upon promises [*562] or understandings of confidentiality, [or] investigative facts underlying and intertwined with opinions and advice," Hamilton, 287 Md. at 565, 414 A.2d at 926, n18 an in camera review and balancing test application are appropriate. See § 10-623(c)(2). As noted earlier, the defendants' assertion of a blanket executive privilege, with its attendant presumption in favor of non-disclosure, fails because the records sought to be protected patently do not represent the content of confidential communications of an advisory or deliberative nature.  Hamilton, 287 Md. at 563, 414 A.2d at 925. Rather, the defendants' claimed exemptions seek to protect records from which such content may be inferred or discovered. Such a basis for the claimed exemption falls at best at the fringes or perimeter of potentially protectable records for which an in camera review and balancing test are necessary to assure proper vindication of the competing interests.

n17 Hamilton reached us upon certified questions of law from the United States District Court for the District of Maryland arising from a civil suit in the District Court brought by the personal representative of the estate of a murder victim against the superintendent of the Spring Grove State Hospital and two of its staff psychiatrists for the alleged negligent release of the killer. 287 Md. at 546-547, 414 A.2d at 916-917. Thus, the plaintiff's need for the governmental record in that case was balanced against the assertion of executive privilege.

[***65] 

n18 The defendants, while not asserting that any of the particular records at issue in this case involved promises of confidentiality, do contend as a general matter that the Governor and his staff "must have the freedom to contact individuals with the assurance of confidentiality." (Petitioners' brief at 25). If, upon remand, the defendants make a showing, by affidavit or otherwise, that the recipient of a particular telephone call, or a person who met with the Governor, was given assurance that the fact of the telephone call or the fact of the meeting would be kept confidential, then under the Hamilton opinion such number or the person's name in the scheduling record should be redacted.

   The defendants assert that the telephone and scheduling records constitute "facts the disclosure of which would impinge on the deliberative process." Hamilton, 287 Md. at 565, 414 A.2d at 926. They make various arguments in support of this assertion.

   First, the defendants seem to argue that disclosure of the names of persons with whom the Governor met or who were telephoned by the Governor,[***66] Mr. Riddick, or Ms. Smith-Bauk, would violate the privacy rights of those officials and the persons with whom they spoke, and would make persons reluctant in the future to give the Governor advice since their names might be revealed. (Petitioners' brief at 20-22, 28). [*563] We observe that the executive privilege doctrine, as recognized in Hamilton and the cases there cited, is not for the benefit of the public officials or those giving advice to the public officials, but "is for the benefit of the public," Hamilton, 287 Md. at 563, 414 A.2d at 924. That is not necessarily dispositive of defendants' claim here.

   Furthermore, although the substance of what an adviser tells a public official may be entitled to some protection under the executive privilege doctrine, nothing in Hamilton, or the cases there relied upon, suggests that executive privilege permits nondisclosure of every adviser's name. The Hamilton case involved a confidential report from the Governor's Chief Legislative Officer and Legal Counsel which contained opinions and recommendations for the Governor's use, and we held that the report, or parts of the report, [**273] fell within the doctrine of executive[***67] privilege and might not have to be disclosed. Giving free range to the defendants' argument in the case at bar, a Governor could keep secret the name of his Chief Legislative Officer and Legal Counsel, or the names of some other staff members who advise him. We do not believe that the privilege for confidential communications of an advisory or deliberative nature extends so far as to keep secret the names of all advisers.

   The defendants have yet to present evidence supporting their assertion that the mere public disclosure of the Governor's Office telephone bills or of the Governor's prior appointments will have a chilling effect upon the willingness of persons to render advice to the Governor. And, as stated above, we recognize no general executive privilege for public officials' office telephone bills or scheduling records. Nevertheless, this case is being remanded to the Circuit Court for further proceedings. Our opinion does not preclude the defendants from attempting to show the trial court, on remand, that because of identified special circumstances, disclosure of a specific telephone number, or certain specific numbers, or disclosure of specific scheduling records, will interfere [***68]with the deliberative process in the Governor's Office. If the trial [*564] court concludes that the defendants have made a sufficient showing as to any specific telephone call or any specific appointment, it should redact the records accordingly.

   The defendants argue that some of the telephone calls and meetings with the Governor relate to economic development projects and efforts "to attract businesses to locate headquarters or operations in Maryland. * * * With access on demand to the Governor's telephone records, reporters easily could identify a series of telephone calls to a particular company, inferring negotiation activity. * * * The simple contact by a reporter to such a company could scare away that potential source of economic development." (Petitioners' brief at 23-24). The defendants make a similar argument with regard to recruiting persons for high level state employment such as a presidency of a state university. At the time the Post brought this suit in December 1997, it was seeking telephone bills and scheduling records for a six-month period from February 1, 1996, through July 31, 1996. In other words, the Post was seeking records of telephone calls and appointments for[***69] one and a half to two years in the past. The records sought are now four years old. Present disclosure of four-year-old telephone or scheduling records may or may not upset current economic development negotiations or recruitment negotiations which might fail if they are not kept confidential. Current disclosure of telephone numbers or meetings relative to such negotiations that have expired or been consummated may or may not have a sufficiently inhibitory effect on the Governor's ability to maintain similar negotiations in the future. Our decision in this case is without prejudice to the defendants' making a showing to the Circuit Court on remand that a particular four-year-old telephone number or scheduling record either is still involved in current confidential economic development or recruitment negotiations and that present disclosure of that number or record will interfere with the negotiations, or that such disclosure is likely to interfere substantially with the Governor's ability to have such negotiations in the future.

   [*565]

   To reiterate, we reject the defendants' argument that the factual records here involved are generally subject to executive privilege and, therefore, are nondisclosable[***70] under § 10-615(1) of the Act. Nonetheless, if the defendants upon remand are able to demonstrate that certain specific records or portions thereof are privileged under the principles set forth in Hamilton, 287 Md. at 564-565, 414 A.2d at 925-926, and in this opinion, the Circuit Court should permit redactions of that material.

   JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY[**274]  VACATED, AND CASE REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. PETITIONERS TO PAY TWO THIRDS OF THE COSTS AND RESPONDENT TO PAY ONE THIRD OF THE COSTS.
 
Dissenting Opinion follows:

DISSENTBY: Cathell

DISSENT:  
Dissenting opinion by Cathell, J.:

   I respectfully dissent. I believe that the doctrine of separation of powers, which, unlike its federal counterpart, is incorporated expressly in the Constitution of Maryland through the Declaration of Rights, does not permit the Legislature to create laws that can be used directly to require the Governor to make his nonpublic activities public, while acting as Governor, including his duties of appointment, scheduling of private interviews and many of the other duties inherent to the position of Chief Officer of[***71] the heretofore separate and independent executive branch.

    Today, the majority imposes a heavier burden on the Governor than the federal courts, including the Supreme Court of the United States, have imposed upon the President, even though the federal courts view the doctrine of separation of powers as an implied doctrine. The doctrine is nowhere stated in the Constitution of the United States, the Bill of Rights, or the constitutional amendments enacted thereafter. [*566] Conversely, Article 8 of the Maryland Declaration of Rights provides:
 
Article 8. Separation of powers.

   That the Legislative, Executive and Judicial powers of Government ought to be forever separate and distinct from each other; and no person exercising the functions of one of said Departments shall assume or discharge the duties of any other.

   Maryland's recognition of the separation of powers is found not just in the express provisions of Article 8 of the Declaration of Rights. The Maryland Constitution, Article II, Section 17, adopted in the Constitution of 1867, provides: "To guard against hasty or partial legislation and encroachment of the Legislative Department upon the co-ordinate Executive and Judicial[***72] Departments, every Bill . . . [shall] be presented to the Governor." The initial clause of this provision notes that the reason for empowering the Governor with the veto power is to protect the separation of powers in Maryland. The comparable bill signing and veto provision in the United States Constitution, on the other hand, makes no mention of the importance of guarding against "encroachment of the Legislative Department upon the co-ordinate Executive and Judicial Departments." It merely states that bills will be presented to the President for signing and provides the procedure to be followed should he or she refuse to sign a bill. See U.S. Const. art. I, § 7, cl. 2-3.

   It is my view that, especially in light of Maryland's express constitutional provisions, the majority is not sufficiently deferential to the mandates of the separation of powers doctrine. What the majority inflicts upon the doctrine and the Governor with its decision in this case may well come home to roost. No distinction between the executive and judicial branches is made in the applicability of Article 8. n1 Unlike the federal system, where separation of powers is implied, there is more [*567] room for interpretation[***73] recognizing the confidentiality needs of the judicial branch. There is little room to maneuver in Maryland when the doctrine, by express constitutional provision, includes all branches. The federal courts, unlike the majority today, recognize that the separation of powers, implied in the federal Constitution, protects the private office where the Chief Executive conducts public business from direct requests[**275] for records under the federal Freedom of Information Act.

n1 I discuss, infra, the conspicuous absence of any exemption in the State Public Information Act for the judiciary, while this branch is expressly exempted from the Open Meetings Act.

 
   It is important to address the beginnings of the separation of powers doctrine in Maryland as an express constitutional provision. The first phrase, "that the Legislative, Executive and Judicial powers of Government ought to be forever separate and distinct from each other," was in the original 1776 Declaration of Rights as Article 8. n2 It, along with the Constitution [***74]of Maryland, was passed on August 14, 1776. Significantly, the separation of powers doctrine was not included in the Declaration of Rights as an afterthought. It was an important aspect of the original constitution, and subject to some opposition. The Maryland Gazette of October 24, 1776, contained a poem, entitled "The Song of the Man in the Moon," apparently expressing displeasure with the inclusion of the provision:

n2 The provision was moved to Article 6 in the Constitution of 1851, which also added the second phrase "and no person exercising the functions of one of said Departments shall assume or discharge the duties of any other." This language, in its entirety, was moved back to Article 8 in the Constitution of 1864 and remained there after the Constitution of 1867, which introduced the Governor's veto power. An attempt to remove the separation of powers provision failed in 1968, when the proposed 1968 Constitution was rejected.

 
I saw in labour to bring forth
 
A government of fame and[***75] worth:
 
But when 'twas born, the granny said,
 
The monster had a triple head.
 
. . . .
 
Surely agreeable to nature,
 
One head's enough for any creature;
 
[*568] But if that head should be divided,
 
How will the quarrel, be decided.
 
John C. Rainbolt, A Note on the Maryland Declaration of Rights and Constitution of 1776, 66 Md. Hist. Mag. 420, 429-30 (1971) (describing the constitutional controversy as between those who wanted a more democratic form of government and those wanting a more elitist form).

   The importance of the inclusion of the express provision in the Declaration of Rights in 1776 has been described by commentators over the years:

   Separation of powers. One of the Proprietary grievances was that the Governor and his Council exercised legislative, executive, and judicial powers, as in effect did the Proprietor, and as did Parliament. This was recognized as a potential source of oppression, and violated the political theories that Montesquieu and others had brought into vogue.[ n3 ] Most of the bills of rights, including George Mason's famous Virginia model, contained provisions requiring a separation . . . .[ n4 ] 

n3 "Historians credit BARON DE MONTESQUE, SPIRIT OF THE LAWS (1748), for the concept of separation of powers, based on Montesque's incorrect understanding of the English system." Friedman, supra, at 689 n.206. 

[***76] 

n4 Most states, unlike the federal government, have explicitly expressed their preferences for the separation of powers in their constitutions. They include: Alabama, Arizona, Arkansas, California, Colorado, Connecticut, Florida, Georgia, Idaho, Illinois, Indiana, Iowa, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, North Carolina, Oklahoma, Oregon, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, West Virginia and Wyoming. See Friedman, supra, at 688-89 n.197.

 
H. H. Walker Lewis, The Maryland Constitution 1776, 47 (1976).

   A resolution was adopted by the Constitutional Convention of 1850 that again stressed the importance of the separation of powers principle in Maryland. It provided:

   [*569]

   5th. An acknowledgement of the impropriety of the concentration of even the necessary powers of government in a few hands, and of the indispensableness of guarding against usurpation by so constituting the different departments [**276]and functionaries, [***77] that these shall serve as checks and balances to each other.
 
Proceedings of the Maryland State Convention to Frame a New Constitution 110 (1850). This resolution apparently was approved and embodied in the Article 6 restatement of the separation of powers doctrine in the 1851 Constitution, now found in Article 8. Alfred S. Niles, Maryland Constitutional Law 10-11 (1915), indicates the importance our Framers, and this Court, placed on these early constitutional provisions:

   The first constitution of Maryland was framed in the same year as [the] Declaration of Independence was adopted . . . .

   This constitution, as amended from time to time, remained the fundamental law of our State until 1851, when a second constitution was adopted, which was succeeded by the Constitution of 1864, and that by the Constitution of 1867, which [in 1915 and now] is still in force.

   . . . .

   "Constitutions are not to be interpreted according to the words used in particular clauses. The whole must be considered, with a view to ascertain the sense in which the words were employed, and its terms must be taken in their ordinary and common acceptation, because they are presumed to have been so [***78]understood by the framers and by the people who adopted it. . . . It, unlike the acts of our legislature, owes its whole force and authority to its ratification by the people . . . ." [Citing Manly v. State, 7 Md. 135, 147 (1854).]

   . . .  State v. Mayhew, 2 Gill [487,] 497 [(1845)]:

   A contemporaneous construction of the Constitution of long duration, continually practiced under, and through which innumerable rights of property have been acquired, [*570] ought not to be shaken but upon the ground of manifest error and cogent necessity.
 
Discussing the different treatments of the separation of powers doctrine by the federal government and Maryland, Niles, supra, states at 19:

   The limitation upon the Federal Government is, however, not found in the words of the Constitution itself, but is simply an unavoidable consequence from all its provisions taken together.

   The language of our Maryland Declaration of Rights, . . . is clear and explicit; and our courts have been alert to oppose even the first steps toward usurpation by one department of the powers or duties of either of the others, in one case declaring ex mero motu [on its own motion[***79] to prevent injustice], a law unconstitutional and void on this ground, although the point was not made by counsel. [citing Beasley v. Ridout, 94 Md. 641, 52 A. 61 (1902); Crane v. Meginnis, 1 G. & J. 463 (1829)].
 
Continuing to discuss the importance of the separation of powers doctrine in our early history, Niles, supra, at 22, quotes from The Chancellor's Case, 1 Bland 595, 672 (Md. Ct. Ch. 1825):
 
This division and separation is the peculiar characteristic and great excellence of our Government. It is the grand bulwark of all our rights, and every citizen has the deepest interest in its most sacred preservation. Each of these several departments should be kept, and should feel it to be its highest honor, to keep strictly within the constitutional boundaries assigned to it. The Legislature should not encroach upon the judiciary, nor upon the Executive; nor should either of those departments trench upon each other, or upon the legislative.

   Niles later discusses the adoption of the constitutional provision giving the Governor the veto power:

   In the Constitution of 1867 under Article [II], Section 17 the Governor's [***80]function in approving - or not - legislation was in significant part to guard against . . . encroachment of [*571] the Legislative Department [**277]upon the co-ordinate Executive and Judicial Department, . . .
 
Id. Niles specifically references this language as a distinct reason for the veto power in Maryland and contrasts it with the language of the federal constitutional provisions granting the veto power: "In the Federal Constitution, no reason is given for the existence of this power. In the Maryland Constitution, it is stated to be 'to guard against . . . encroachments of the Legislative Department upon the [other] Departments.'" Id. at 119. At the time that the veto language was being added by the 1867 Constitution, the 1867 Constitutional Convention, commenting on the Declaration of Rights and the new veto power, stated:

   SEC. 17. The most important change of all concerning the Executive office, is investing it with the Veto Power.

   The words in which this power is given are nearly the same as in the Constitution of the United States. There is, however, a preamble prefixed defining its use to be "to guard against . . . encroachments of the Legislative Department upon the co-ordinate[***81] Executive and Judicial Departments," . . . .
 
Edward Otis Hinkley, The Constitution of the State of Maryland, app. at 126 (1868).

   It is important to note that there has been an attempt to repeal Maryland's express constitutional provision with respect to the separation of powers. There is no way to know, however, why the citizens of Maryland rejected the proposed Constitution of 1968, which, among other things, attempted to abolish Article 8 of the Declaration of Rights, last readopted in the Constitution of 1867. "The proposed 1967-68 Constitution did not contain an explicit separation of powers provision relying, as does the United States Constitution, on the structure of the government to create the inference of separation. The proposed constitution was rejected by voters." Dan Friedman, The History, Development, and Interpretation of the Maryland Declaration of Rights, 71 Temp. L. Rev. 637, 688 n.194 (1998) (citation omitted).

   [*572]

   As I perceive the history surrounding the adoption of the original separation of powers provision in the Declaration of Rights and the Constitution of 1776, it was based on the colonists' experiences in attempting to deal with, and suffering[***82] from, the rule of the Governor and his Council, an entity that exercised the power and control of the legislative, executive, and judicial branches. To an extent, the colonists had suffered the same abuses from afar by the English Parliament. Moreover, prior to the adoption of the 1776 Declaration of Rights, the colonists had been subjected to a legislative body that acted like Parliament. The powers of the colonial legislature were described in an early Maryland case that construed a pre-Declaration of Rights colonial statute from 1773. In Partridge v. Dorsey's Lessee, 3 H. & J. 302, 322 (1810), the Court said:

   At the time the Act of Assembly passed, the power and jurisdiction of the General Assembly of Maryland . . . were as great and transcendent, as the power and jurisdiction of the Parliament of England, within the scope of their authority. And Sir Edward Coke informs us, "the power and jurisdiction of Parliament is so transcendent and absolute, that it cannot be confined, either for causes or persons, within any bounds." . . . He [Sir William Blackstone] also declares, that "all mischiefs and grievances, operations and remedies, that transcend the ordinary course of the[***83] laws, are within the reach of this extraordinary tribunal."

   The citizens of the new Maryland had experienced numerous years of that type of governance, whereas the fledgling federal government had not, as a separate entity, been subject to the same problems because the federalist system did not then exist. The colonies formed the federal government in order, in part, to better withstand and fight the past abuses of Parliament and the colonial governors. At[**278] the time of the creation of the federal government, and later its constitutional framework, the federal system had no direct experience with the abuses of power when all functions of government repose in one entity. The states, particularly Maryland, as I interpret the events of 1776, considered the separation of powers to [*573] be more important than the federal government ever did. The experience of the colonies had been first-hand. Because it was more important to them, Marylanders were not willing to rest upon an assumption that the doctrine would be implied from the form of the government they were adopting. They wanted it written in constitutional stone, not suggested by constitutional implication.

   With all due respect to the[***84] majority, the doctrine's history in this state calls for a more rigid adherence than that afforded to the federal implication of separation of powers, not the lesser standard the majority adopts with its position in this case. As the older cases note, the doctrine of separation of powers always has been a sacred trust in Maryland. Rather than affording it the status to which this Court previously has said it is entitled, the majority today relegates the doctrine to an unimportant requirement that the Legislature can ignore when it chooses. Although it opens the Governor's office to a highly-reputable newspaper in this case, the door remains open to any scandal rag searching for controversy in the future.

   The majority distances itself from most of this Court's basic, albeit early, cases on the subject of separation of powers. In State v. Chase, 5 H. & J. 297 (1821), we were faced with a challenge to the Legislature's imposition of additional judicial duties on judges. We upheld the power of that entity to impose judicial duties on the judicial branch but, in dicta, rejected any power to impose nonjudicial duties. We said:

   We hold it to be perfectly clear, that the Legislature[***85] may rightfully and constitutionally, impose upon the Judges any new and additional judicial duties . . . .

   Such a right is inseparable from the genius of our institutions, and from the nature of things it must be so; if it were otherwise, Courts of justice would answer but half the purposes of their institution; and all Judges are supposed to accept their appointments, with a knowledge, and tacit consent, that their labors may from time to time be increased or diminished, according to public exigency -- seldom [*574] diminished to be sure, though sometimes increased with no very sparing hand.

   New judicial duties may often be unnecessarily imposed, and services, not of a judicial nature, may sometimes be required. In the latter case, a Judge is under no legal obligation to perform them.
 
Id. at 304 (emphasis added). In Crane, 1 G. & J. at 472-73, the Court of Appeals opined:

   The Constitution of this State . . . is the immediate work of the people, in their sovereign capacity, and contains standing evidences of their permanent will. It portions out supreme power, and assigns it to different departments, prescribing to each the authority it may exercise, and specifying[***86] that from the exercise of which it must abstain. The public functionaries move then in a subordinate character, and must conform to the fundamental laws or prescripts of the creating power. When they transcend defined limits, their acts are unauthorized, and being without warrant, are necessarily to be viewed as nullities. If considered as valid acts, the distinction between unlimited and circumscribed authority is done away, the derivative exerts original power, and of constitutional law nothing is left but the name.

   The legislative department is nearest to the source of power, and is manifestly the predominant branch of government. Its authority is extensive and complex, and being less susceptible on that account[**279] of limitation, is more liable to be exceeded in practice. . . . The check to legislative encroachment is to be found in the declaration, that the legislative, executive, and judicial powers ought to be kept separate and distinct; and in the solemn obligations of fidelity to the Constitution, under which all legislative functions are performed. [Emphasis added.]
 
See also Mayhew, 2 Gill at 497; Prout v. Berry, 2 Gill 147, 149 (1844) [***87]("The Legislature possessed no power in any given determination of the Court of Appeals, to declare what would be the rights of the parties; for however consistent with justice and equity such a declaration may have been, the [*575] Legislature could exercise no judicial power."); Mitchell v. Mitchell, 1 Gill 66, 84 (1843) ("It is the province of Courts of justice to expound laws, and not to legislate; that is a duty which belongs to a different department of the government."). In Miller v. State ex rel. Fiery, 8 Gill 145 (1849), the Legislature passed an Act in 1845 requiring the Washington County Court to grant an appeal in that case. In holding that the Legislature violated the constitution by attempting to exercise judicial power, we said:
 
We think it manifest that the Act of 1845, ch. 358, is the exercise of such an unconstitutional power, by the General Assembly of Maryland, as renders it wholly inoperative and void. . . . The legislative and judicial powers, under the Constitution of this State, are confided to different branches of the government; the Legislature are incompetent to exercise judicial powers.
 
Id. at 148. We[***88] again stressed the importance of separation of powers in Regents of the University of Maryland v. Williams, 9 G. & J. 365, 410 (1838): 

   The province of the legislative department of government is to make laws, confining itself within the limits prescribed by the Constitution. It cannot usurp the powers confided to either of the other departments . . . . For if the Legislature could, without control, exercise judicial as well as legislative powers, the tenure of everything dear and valuable to the citizen, would be, the unrestricted will of that body; to guard against which, the provision was introduced for a division of the powers of the government.

   In Berrett v. Oliver, 7 G. & J. 191 (1835), the Legislature passed a bill negating a decree in a private action. The Court said: "Can the Legislature exercise such a power? Unquestionably not. This Act of Assembly is [a] direct and obvious violation of our Declaration of Rights [Article 8] . . . ." Id. at 206. In Wright v. Wright's Lessee, 2 Md. 429 (1852), we rejected an attempt by a divorcee to assert a legislative power [*576] to adjust the property rights of the parties, [***89] in part on separation of powers grounds. n5 There we said:

n5 Wright held so despite recognizing the power of the Legislature to annul marriages and grant divorces. Though it seems unusual now, the Legislature apparently inherited the power to grant divorces from Parliament's assumption of the power to annul marriages. Such practice has long since been abolished. See Md. Const. art. 3, § 33.

   Under [Article 24 of the Declaration of Rights] a person may be . . . disseized of his freehold, &c., provided it be done by the judgment of his peers, or by the law of the land.

   The words by "the judgment of his peers," mean a trial by jury, and the words "by the law of the land," which are copied from Magna Charta, are understood to mean due process of law, according to the course and usage of the common law. . . . And by the sixth section of the same instrument it is said, "the legislative, executive and judicial powers of government, ought to be forever separate and distinct from each other." The evident[***90] purpose of the declaration last quoted, is to parcel out and separate the powers of government, and[**280] to confide particular classes of them to particular branches of the supreme authority. . . . Within the particular limits assigned to each, they are supreme and uncontrollable. . . . It [the Legislature] has not undertaken to deal with questions of property; if it had attempted to have done so, such attempt would have been an assumption of power unauthorized by the constitution. 
 
2 Md. at 452-53 (citations omitted).

   One purpose of the Constitution of 1851 was to abolish lifetime appointments that had proliferated under the Constitution of 1776. An Adjutant General had been appointed to lifetime tenure in Watkins v. Watkins, 2 Md. 341 (1852). While he was in office, the Constitution of 1851 was passed, which limited the term of the Adjutant General to six years. It also required the Governor to appoint officers "with the advice and consent of the senate." Id. at 354. The Governor appointed a new Adjutant General while the Legislature was not in session and thus the Governor had not received the [*577] "advice and consent" of the Senate. [***91] When the new Adjutant General attempted to take office, the old Adjutant General (both were named Watkins) refused to turn over the office, claiming life tenure because he had been appointed when the constitution so provided. The newly-appointed Adjutant General sought a Writ of Mandamus directing the former Adjutant General to surrender the office. The trial court declined and we affirmed, noting that in all human contrivances confidence must be reposed somewhere, and that under the distribution of the powers of the government in our State, it is not given to the judiciary to compel action on the part of a co-ordinate branch of government. Its authority is confined to restraining the potency of its enactments when they transcend constitutional limits.
 
Id. at 356. See County Comm'rs v. Mitchell, 97 Md. 330, 340, 55 A. 673, 675 (1903) (voiding as unconstitutional, pursuant to Article 8, a statute that placed control of a local courthouse, in which the entire county government was housed, in the hands of a court-appointed judicial officer); Board of Supervisors v. Todd, 97 Md. 247, 263-65, 54 A. 963, 966 (1903) (voiding [***92]a statute under the separation of powers doctrine that mandated the circuit court to order elections upon petition); Robey v. County Comm'rs, 92 Md. 150, 160-62, 48 A. 48, 50-51 (1900) (striking down a statute that required judges to supervise executive accounts as violative of separation of powers); Roche v. Waters, 72 Md. 264, 272, 19 A. 535, 538 (1890) ("The Act of 1868, by its terms . . . authorizes the court to change the effect of decrees which had become final. It is an exercise of judicial power by the Legislature."); Dorsey's Lessee v. Gary, 37 Md. 64, 79 (1872) (declaring unconstitutional an act, which reinstituted certain lawsuits, for infringing on judicial powers); Mayor of Baltimore v. Horn, 26 Md. 194, 207 (1867) (overturning, as a legislative infringement upon the judicial power, a law authorizing suit against specific property owners); Thomas v. Owens, 4 Md. 189, 227 (1853) (stating as to the separation of powers provision in the Declaration of Rights: "Were it not [*578]for such a provision, the whole government would exist only by the permission of the legislature.").

   The case of County Commissioners of Queen Anne's County v. County Commissioners of Talbot County, 108 Md. 188, 69 A. 801 (1908),[***93] emphasized the great importance this state has often afforded to the sanctity of the separation of powers as a governmental foundation. The case involved a long-standing dispute over which county should pay to erect and repair a bridge over the Kent Narrows, which would replace a solid causeway erected in those waters by Queen Anne's County, but which allegedly had interfered with the ability of residents of Talbot County to navigate the Narrows. After other attempts to resolve the dispute legislatively, [**281] the General Assembly enacted legislation requiring that both counties be financially responsible for the construction of the ultimate replacement bridge. After Talbot County refused to pay its share of the cost, the Legislature enacted another statute that required Talbot County to assess its citizens' property to produce a specified amount of money, which would then be used to reimburse Queen Anne's County for one-half of its expenditures. We held that the statute violated the separation of powers provision of our Declaration of Rights. We asked ourselves "whether the Legislature has . . . attempted to exercise functions that belong to the judicial department of government, or in[***94] other words, has it attempted to pronounce a judgment or decree?" Id. at 196, 69 A. at 804. We answered:

   [The setting of the amount due] is done without any judicial inquiry as to how much the bridge actually cost . . . or as to what the actual cost of maintaining the bridge may be. In some jurisdictions it is possible that such an ascertainment by the Legislative branch of the government would stand, but certainly it cannot in Maryland.

   Article 8 of the Declaration of Rights declares "that the Legislative, Executive and Judicial powers of government ought to be forever separate and distinct from each other."

   An Act of the Legislature determining what amount of indebtedness is due . . . by one county to another, is an [*579] attempt to exercise judicial functions and therefore unconstitutional and void.
 
108 Md. at 196-97, 69 A. at 804 (citation omitted).

   In Close v. Southern Maryland Agricultural Ass'n, 134 Md. 629, 644, 108 A. 209, 215 (1919), after reciting a number of cases that attempted to confer licensing authority upon the courts, we rejected the authority of the Legislature to confer upon us the power to grant gambling exemption[***95] licenses to agricultural associations, stating simply that "it is for the Legislature, and not for the courts to pass statutes." We held that the law was "invalid."  Id.

   Even in our more modern cases we have exhibited more deference to the separation of powers doctrine than does the majority today. We said in Perkins v. Eskridge, 278 Md. 619, 626, 366 A.2d 21, 27 (1976), overruled on other grounds by Parrott v. State, 301 Md. 411, 483 A.2d 68 (1984), that neither the judiciary nor the legislature is superior, one over the other -- rather they are coordinate branches of government and the former must exercise its duty and authority to determine what the law is in order to ensure the viability of the separation of powers provision of the Maryland Constitution (Article 8 of the Declaration of Rights).

   We discussed the doctrine at some length in Department of Natural Resources v. Linchester Sand & Gravel Corp., 274 Md. 211, 334 A.2d 514 (1975), in which the Legislature had created a statutory scheme of a de novo appeal with a right to a jury trial that, in essence, empowered juries to issue administrative permits as part of the[***96] judicial process. We stated:
 
The Department of Natural Resources appealed to this Court, asserting that this type of extensive and nullifying judicial de novo review, under § 9-308(b), is not permitted by the Maryland Constitution because "the judicial branch of government may not usurp the province of the administrative prerogative." We agree . . . .

   . . . .

   That aspect of the Constitution which is spotlighted by this case is the fundamental doctrine of separation of powers, [*580] a principle expressly or impliedly recognized in the basic law of every state in this nation. This doctrine has long been a cornerstone of this State's concept of government and finds forthright expression in Article 8 of the Declaration of Rights contained in the Constitution of Maryland in these words: [**282]

   "That the Legislative, Executive and Judicial powers of Government ought to be forever separate and distinct from each other; and no person exercising the functions of one of said Departments shall assume or discharge the duties of any other."
 
Although Maryland's statement of the separation of powers is "a more concrete barrier than any which the Supreme Court has had to hurdle under the Federal [***97] Constitution," R. Oppenheimer, Administrative Law in Maryland,  2 Md.L.Rev. 185, 188 (1938), the right of the Legislature to delegate powers to administrative agencies has been recognized in this State for more than 125 years.  Harrison v. Mayor & C. C. of Balt., 1 Gill 264 (1843).
 
274 Md. at 217-18, 334 A.2d at 519-20 (emphasis added). We then noted that in response to the many practical needs of government, the number of administrative agencies has flourished. Additionally, within the agencies there has occurred "some mingling, blending and overlapping of the legislative, executive and judicial functions."  Id. at 220, 334 A.2d at 521. This "elasticity" of the separation of powers doctrine, we noted, was sensible and permissible. We went on to state, however:
 
This constitutional "elasticity" cannot be stretched to a point where, in effect, there no longer exists a separation of governmental power, as the Maryland Constitution does not permit a merger of the three branches of our State government, nor does it "make any one of the three departments subordinate to the other, when exercising the trust committed to it." Painter v. Mattfeldt, 119 Md. 466, 472, 87 A. 413[***98] [, 416] (1913). When the Legislature confers, by enactment, powers upon one of the other branches of government which are beyond those permitted under the Constitution, or any of the three branches of government takes unto itself [*581] powers denied to it or those strictly within the sovereignty of another branch, the courts of this State must step in and declare such encroachments to be constitutionally prohibited . . . .

   . . . .

   . . . "The basic proposition that a constitutional court should not be required to perform nonjudicial functions is probably beyond challenge." 4 Davis, Administrative Law Treatise, § 29.10 (1958). Because courts cannot be required to exercise nonjudicial duties it has been held by this Court that it is beyond the power of the Legislature to require the judiciary to: approve accounts of county officers before payment, Robey v. Prince George's County, 92 Md. 150, 48 A. 48 (1900); perform duties tantamount to a board of review in assessing property for tax purposes, Baltimore City v. Bonaparte, 93 Md. 156, 48 A. 735 (1901); appoint a board of visitors to supervise the county jail, Beasley v. Ridout, 94 Md. 641, 52 A. 61 (1902);[***99] provide for referendum concerning issuance of liquor licenses, Board of Supervisors v. Todd, 97 Md. 247, 54 A. 963 (1903); issue licenses permitting pari-mutuel betting on horse races, Close v. Southern Md. Agr. Asso., 134 Md. 629, 108 A. 209 (1919); and issue liquor licenses, Cromwell v. Jackson, 188 Md. 8, 52 A.2d 79 (1947). Thus, in regard to administrative agencies, which, while often functioning as fact-finding bodies, perform essentially nonjudicial duties, a Maryland court's "inquiry is [almost always] limited to finding whether there was illegality or unreasonableness in the . . . action -- when that inquiry is finished, judicial scrutiny ends . . . ." Baltimore Gas Co. v. McQuaid, 220 Md. 373, 382, 152 A.2d 825[, 830] (1959).
 
 Id. at 220, 226, 334 A.2d at 521, 524 (third alteration in original) (emphasis added). See also Maryland State Police v. Warwick Supply & Equip. Co., 330 Md. 474, 480, 624 A.2d 1238, 1241 (1993) ("The delegation doctrine prohibits a legislative body[**283] from delegating its law-making function to any other branch of government or entity and is a corollary of the[***100] separation of powers doctrine implicit in the United States [*582] Constitution and expressly provided in the Maryland Constitution."); Commission on Med. Discipline v. Stillman, 291 Md. 390, 401, 435 A.2d 747, 753 (1981) ("The separation of powers doctrine mandates that the legislature may not divest the judiciary of [its] inherent powers."). But see McCulloch v. Glendening, 347 Md. 272, 282-84, 701 A.2d 99, 104 (1997) (noting that Article 8 does not mandate an absolute separation of powers among the branches of government); Judy v. Schaefer, 331 Md. 239, 261, 627 A.2d 1039, 1050 (1993) (stating that "Article 8 does not impose a complete separation between the branches of government," and delegation of legislative power to the executive branch is constitutionally permissible "where sufficient safeguards are legislatively provided for the guidance . . . in . . . administration of the statute.'" (quoting Department of Transp. v. Armacost, 311 Md. 64, 81, 72, 532 A.2d 1056, 1064, 1060 (1987))). n6

n6 A body of Maryland law has developed which distinguishes and permits the delegation of legislative and quasi-judicial functions to administrative agencies. See, e.g., Armacost, 311 Md. at 77-82, 532 A.2d at 1062-65; Stillman, 291 Md. at 413-14, 435 A.2d at 756. In County Council v. Investors Funding Corp., 270 Md. 403, 436, 312 A.2d 225, 243 (1973), we said:
 
The constitutional doctrine of separation of powers . . . does not itself inhibit the delegation to an administrative agency of a blend of executive or legislative powers with powers judicial in nature; the determining factor is not so much the specific powers granted to the administrative agency, but rather the relationship of the courts to the exercise of that power.

   The present case involves not the delegation by the Legislature of duties and regulatory functions to regulatory entities created by it. Thus, this case is not factually or legally a regulatory doctrine case. The majority's view that the statute applies to the Office of the Governor, which results in the imposition of restrictions by the legislative branch on the executive, compromises the ability of the Governor to formulate policy, seek advice, arrive at solutions to basic governmental problems, secure preliminary work papers, and to preserve his independence otherwise.

[***101]

   In my view, our long-standing precedent regarding the separation of powers dictates that the statute at hand is inapplicable for the purpose sought in this case. Our two recent decisions, McCulloch, 347 Md. 272, 701 A.2d 99, and Judy, 331 Md. 239, 627 A.2d 1039, are distinguishable because [*583] the exercises of the challenged powers in those cases were supported by other constitutional provisions, namely, those relating to the Governor's supervision over Executive Branch employees in McCulloch and those relating to the Governor's involvement in the budget process in Judy. With the exception of these two cases, the similar cases to which they refer, and the two aberrational cases arising out of the strife of Maryland's peculiar position during the Civil War, McCormick v. Deaver, 22 Md. 187 (1864) and Mayor of Baltimore v. Howard, 15 Md. 376 (1860), this Court has long been a paramount guardian of the separation of powers doctrine. The majority opinion, in my view, disregards this long history of reverence to the principle.

   Moreover, in the case sub judice we are not being asked to restrain a function of[***102] the Executive Branch; respondent seeks to have us compel the Governor to cooperate in the furnishing of information to it. See Watkins, 2 Md. at 346. This information is not sought as evidence in adversarial litigation between other parties; it is sought in a direct suit against the Governor. There is no conflict between the power of the judicial branch to require the disclosure of information necessary to resolve conflicts between citizens effectively and the reluctance of the executive to furnish the necessary information. Maryland's judicial branch, along with the federal judiciary, admittedly has that power as explained in United States v. Nixon, 418 U.S. 683, 711-13, 94 S. Ct. 3090, 3109-10, 41 L. Ed. 2d 1039 (1974):
 [**284]
It is the manifest duty of the courts to vindicate [constitutional] guarantees, and to accomplish that it is essential that all relevant and admissible evidence be produced.

   In this case we must weigh the importance of the general privilege of confidentiality of Presidential communications in performance of the president's responsibilities against the inroads of such a privilege on the fair administration of criminal justice. [***103] The interest in preserving confidentiality is weighty indeed and entitled to great respect. . . .

   . . . .

   [*584]

   We conclude that when the ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is based only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice. [Footnote omitted.]
 
We are not asked here to enforce a judicial summons on the Governor in ongoing litigation, criminal or otherwise. We are asked to compel him to aid respondent on a fishing expedition that no one, other than respondent, knows for which fish the expedition is being mounted. Asserting our constitutional power to restrain action is quite different from the power respondent asks us to exercise -- to compel an action which is to the detriment of the Chief Executive and his or her power to formulate policy and gather information necessary to perform his or her functions effectively.

   A question also exists: How do we enforce a decision such as that rendered in this case? A restraint on executive action generally can be self-enforced. By necessity, the Governor operates[***104] through subordinates who can be restrained. But a mandatory directive ordering a Governor to act in this particular way, I suggest, is a pig that will have difficulty trying to fly. If he declines, are we going to hold him in contempt? If he does not open his doors to the Washington Post, will the House of Delegates impeach him and the Senate try him pursuant to Article II, section 7, and Article III, section 16 of the Maryland Constitution? Moreover, what constitutional principle are we furthering in this confrontation between the executive and judicial branches, a conflict created not by us, but by the legislative branch of government? What constitutional purpose is it to serve?

   We need to understand that this confrontation does not involve only the legislative branch; it is also a constitutional confrontation between the judicial and executive branches, a confrontation created by the dubious applicability of this legislation to the nonpublic aspects of the inner workings of the Office of the Governor, as contrasted with the general functions of the subordinate executive branch departments. As [*585] indicated by our cases, we have not been reluctant to protect our own powers as a judiciary[***105] under Article 8. Interestingly, the Open Meetings Act, Maryland Code (1984, 1995 Repl. Vol.), section 10-503(a)(1)(ii) of the State Government Article, contains an express exception for judicial functions, stating that the Act "does not apply to . . . a judicial function." No similar provision exists in sections 10-611 through 10-628 of the State Government Article, entitled "Access to Public Records." What intellectual exercises will we use to secure our work from premature disclosure? How will we be able to maintain the independence necessary for our work if in contemporary time the methods and facts of our deliberations are to be made public upon request? It is easy to say we will protect the deliberative nature of our work because we have the inherent power to do so. How will we, in the future, explain that what is good for the executive goose is not good for the judicial gander?

   Even the federal courts, in respect to the federal government, which had no history of centralized power abuses similar to that of the colonial governments, construe the implied constitutional requirement of[**285] separation of powers with more deference than the majority in this case affords our express provisions. [***106] In Association of American Physicians & Surgeons, Inc. v. Clinton, 302 U.S. App. D.C. 208, 997 F.2d 898 (D.C. Cir. 1993), a case concerning a federal statute that limits acts of nepotism, at issue was the applicability of that statute to the functions the President delegated to his wife as a member of a federal task force. One issue was whether the statute's language, which made it applicable to agencies of the government, applied to the Executive Office of the President. The court noted that under other acts, including the federal Freedom of Information Act (FOIA), federal courts had held that the White House and the Executive Office of the President were not intended to be included:
 
Although [the statute] defines agency as "an executive agency," we doubt that Congress intended to include the White House or the Executive Office of the President.  Cf.  Franklin v. Massachusetts, [505 U.S. 788], 112 S. Ct. 2767, 2775, [*586] 120 L. Ed. 2d 636 (1992) (holding that President is not "agency" for purposes of Administrative Procedure Act); Meyer, 981 F.2d at 1298 (President's advisors are not "agency" under FOIA); Armstrong v. Bush, 288 U.S. App. D.C. 38, 924 F.2d 282, 289 (D.C Cir. 1991)[***107] (President not APA "agency").
 
997 F.2d at 905. That court also discussed the importance of upholding the separation of powers in view of the relationship between the President and his closest advisors:
  
Application of FACA[, the antinepotism statute,] to the Task Force clearly would interfere with the President's capacity to solicit direct advice on any subject related to his duties from a group of private citizens, separate from or together with his closest governmental associates. That advice might be sought on a broad range of issues in an informal or formal fashion. Presidents have created advisory groups composed of private citizens (sometimes in conjunction with government officials) to meet periodically and advise them (hence the phrase "kitchen cabinets") on matters such as the conduct of a war. Presidents have even created formal "cabinet committees" composed in part of private citizens. This case is no different. Here the President has formed a committee of his closest advisors -- cabinet secretaries, White House advisors, and his wife -- to advise him on a domestic issue he considers of the utmost priority.

   Applying FACA to the Task Force does not raise constitutional[***108] problems simply because the Task Force is involved in proposing legislation. Instead, difficulties arise because of the Task Force's operational proximity to the President himself -- that is, because the Task Force provides advice and recommendations directly to the President. The Supreme Court has recognized that a President has a great need to receive advice confidentially:
 
[There is a] valid need for protection of communications between high Government officials and those who advise and assist them in the performance of their manifold duties; the importance of this confidentiality is too plain to require further discussion. Human experience teaches [*587] that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decisionmaking process. Whatever the nature of the privilege of confidentiality of Presidential communications in the exercise of Art. II powers, the privilege can be said to derive from the supremacy of each branch within its own assigned area of constitutional duties.
 
United States v. Nixon, 418 U.S. 683, 705-06, 94 S. Ct. 3090, 3106, 41 L. Ed. 2d 1039 (1974)[***109] (footnotes omitted); see also Nixon v. Administrator of Gen. Servs., 433 U.S. 425, 441-49, 97 S. Ct. 2777, 2789-93, 53 L. Ed. 2d 867 (1977). . . . Article II not only gives the President the[**286] ability to consult with his advisors confidentially, but also, as a corollary, it gives him the flexibility to organize his advisors and seek advice from them as he wishes. In Meyer v. Bush, 981 F.2d at 1293-97, for example, we held that the President could create a Task Force composed of cabinet secretaries and other close advisors to study regulatory reform without having to comply with FOIA. . . .

   The ability to discuss matters confidentially is surely an important condition to the exercise of executive power. Without it, the President's performance of any of his duties -- textually explicit or implicit in Article II's grant of executive power -- would be made more difficult. In designing the Constitution, the Framers vested the executive power in one man for the very reason that he might maintain secrecy in executive operations. . . .

   This Article II right to confidential communications attaches not only to direct communications with the President, but also[***110] to discussions between his senior advisors. Certainly Department Secretaries and White House aides must be able to hold confidential meetings to discuss advice they secretly will render to the President.
  
997 F.2d at 908-09 (second alteration in original) (footnote omitted). As is readily discernable from Clinton, great efforts are made to preserve the power of the Executive Office and the separation [*588] of powers at the federal level, even though the Framers chose not to include it expressly in the federal Constitution.

   A challenge was made to the adequacy of the response to a disclosure request made under the FOIA in Meyer v. Bush, 299 U.S. App. D.C. 86, 981 F.2d 1288 (D.C. Cir. 1993). The United States Court of Appeals for the District of Columbia first identified the Government's position: "The government declined to produce these documents on the grounds that neither the Vice President nor the Task Force are 'agencies' under FOIA." 981 F.2d at 1291. The court quoted the portion of FOIA that defined an agency as "'any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive [***111]  branch of the Government (including the Executive Office of the President), or any independent regulatory agency.'" Id. The court then discussed several of the cases involving the separation of powers:
 
In Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 100 S. Ct. 960, 63 L. Ed. 2d 267 (1980), the Supreme Court followed the legislative history and held that the Act did not cover "the President's immediate personal staff or units in the Executive Office whose sole function is to advise and assist the President." Id. at 156, 100 S. Ct. at 971.

   . . . .

   . . . The President does not create an "establishment" subject to FOIA every time he convenes a group of senior staff or departmental heads to work on a problem.
 
981 F.2d at 1292, 1296 (internal quotation omitted).

    Kissinger, 445 U.S. 136, 100 S. Ct. 960, 63 L. Ed. 2d 267, which involved three appeals from denied requests for information under the FOIA, is perhaps the most interesting and comprehensive of the cases involving the FOIA. William Safire, a columnist, requested that the State Department produce transcripts of Henry Kissinger's telephone[***112] conversations during a specified period. Safire's request was limited to telephone conversations in which his name was mentioned or Kissinger discussed information "leaks" with certain White [*589]House officials. His request, though broad, was much more constrained than the blanket request by respondent in the case at bar, which requests virtually all available telephone records, diaries, appointments, and memos, without any specificity. The second request was by the Military Audit Project (MAP) for all records[**287] of conversations Kissinger made while he was Secretary of State and National Security Advisor. The third request was from the Reporters Committee for Freedom of the Press (RCFP), and others, requesting Kissinger's telephone notes made when he was National Security Advisor and Secretary of State.

   The Supreme Court held that the requesting parties "were not entitled to relief." Id. at 147, 100 S. Ct. at 967, 63 L. Ed. 2d 267. It stated, as relevant to the case before this Court:
 
   The plaintiff requesters contend that even though the Federal Records and Records Disposal Acts do not contemplate a private right of action, the FOIA nevertheless supplies what was missing[***113] from those Acts -- congressional intent to permit private actions to recover records wrongfully removed from Government custody. We are, however, unable to read the FOIA as supplying that congressional intent.
 
445 U.S. at 150, 100 S. Ct. at 968, 63 L. Ed. 2d 267. After disposing of the MAP and RCFP claims on other grounds irrelevant to the case sub judice, the Supreme Court addressed Safire's claims:
 
As outlined above, the Act only prohibits the withholding of "agency records." We conclude that the Safire request sought disclosure of documents which were not "agency records" within the meaning of the FOIA.

   . . . .

   The FOIA does render the "Executive Office of the President" an agency subject to the Act.  5 U.S.C. § 552(e). The legislative history is unambiguous, however, in explaining that the "Executive Office" does not include the Office of the President. . . . Safire's request was limited to a period of time in which Kissinger was serving as Assistant to the [*590] President. Thus these telephone notes were not "agency records" when they were made.
 
445 U.S. at 155-56, 100 S. Ct. at 971, 63 L. Ed. 2d 267 (emphasis added). [***114]

   I discern little difference in the FOIA's use of the word "agency" and the use of the words "unit or instrumentality of the State government" in section 10-611(g)(1)(i) of the State Government Article. As indicated, the FOIA defined "agency" to include "any executive department . . . or other establishment in the executive branch of the Government. . . ." The Maryland Act applies to "instrumentalities of government." While, apparently, the majority can make a distinction, I cannot. In my view, neither Act contemplated that the Office of the Chief Executive, be it the President or the Governor, would be covered by the respective disclosure laws. With respect to the FOIA, which was the forerunner to the state Act, the federal courts clearly have held as such, and have done so, at least in part, in reliance on the separation of powers implied by the federal Constitution. In Maryland, there need be no reliance on implication. The doctrine is firmly and expressly ingrained in our Declaration of Rights and our history. It is simply incongruous to me that the majority pays less respect to an express principle in the Maryland Constitution supported by our colonial history than the federal[***115] courts pay to the principle only implied by the federal Constitution.

   That the federal decisions are based substantially on such principles is further supported by other cases involving the scope of related statutes. The Supreme Court, resolving the scope of the federal Administrative Procedure Act (APA) by determining whether judicial review of an action of the President is possible under the Act on the ground that the President is an agency, stated in Franklin v. Massachusetts, 505 U.S. 788, 796, 800-01, 112 S. Ct. 2767, 2773, 2775, 120 L. Ed. 2d 636 (1992):

    The APA provides for judicial review of "final agency action for which there is no other adequate remedy in a [*591] court." [**288] At issue in this case is whether the "final" action that appellees have challenged is that of an "agency" such that the federal courts may exercise their powers of review under the APA. We hold that the final action complained of is that of the President, and the President is not an agency within the meaning of the Act. Accordingly, there is no final agency action that may be reviewed under the APA standards.

   . . . .

   . . . The President is not explicitly excluded from the APA's purview, but [***116]he is not explicitly included, either. Out of respect for the separation of powers and the unique constitutional position of the President, we find that textual silence is not enough to subject the President to the provisions of the APA. [Citation omitted.]

   Finally, in Armstrong v. Bush, 288 U.S. App. D.C. 38, 924 F.2d 282, 289 (D.C. Cir. 1991), that court said:

   When Congress decides purposefully to enact legislation restricting or regulating presidential action, it must make its intent clear. The Supreme Court has recognized that "in traditionally sensitive areas, such as legislation affecting the federal balance, the requirement of clear statement assures that the legislature has in fact faced, and intended to bring into issue, the critical matters involved in decision." . . .

   . . . The answer to whether the APA should apply to the President depends on an analysis of several factors, involving the President's "constitutional powers, the multifarious responsibilities of his office, and his direct political accountability as the only elected official with a national constituency." In the absence of any affirmative evidence that these issues were considered in[***117] the legislative process and that Congress passed the APA with the understanding that it would regulate presidential as well as other executive branch action, we refuse to hold that the President is an "agency" within the meaning of the APA. [Citation omitted; alteration in original.]

   [*592]

   In my view, the Legislature did not intend to include the Office of the Governor, as opposed to the subordinate executive branch agencies, when it used the terms "unit or instrumentality of the State government," any more than Congress intended to include the Executive Office of the President when it used the term "agency" of the government in the FOIA. Like the President's position relative to the FOIA, the office of the Governor is not expressly included in the Maryland Act. "Textual silence" should not be enough to subject him to the Maryland statute.

   Had the General Assembly passed a public information statute that was limited in its applicability to require the Office of the Governor, and it alone, to provide virtually unlimited disclosure of his activities to the press or the public, it clearly would be an unwarranted interference with the activities of a coordinate branch of government and, [***118] in my view, would have been violative of Article 8 of the Declaration of Rights. I see little difference in the effect of the Court's interpretation of the statute at issue. To me, the application of the statute to the Office of the Governor violates the separation of powers, a fundamental foundation of the government of this State.

   We have to look no further than the history of violence that occurred in the 1960's when riots broke out in Maryland, resulting in the Governor deploying the National Guard to preserve the peace. Obviously, he had to confer with military advisors and receive advice on the deployment of troops. Of obvious necessity, in my view, was the need to keep such information, the meetings themselves and the decisions made, confidential. With the majority's decision in this case, any member of the press or the public, including those contemplating riots, could demand access to that information even in real time. We should not presume that the[**289] world is full of people with harmless intent. The protection of these types of executive decision-making activities is guaranteed, as I perceive it, by Maryland's constitutional separation of powers provision, that the majority[***119] today, in my view, regulates to relative [*593] impotence. If the separation of powers doctrine does not apply here, then where? 

   I would reverse and hold that, although the statute may apply to subordinate executive branch entities, it does not apply to the Office of the Governor. Chief Judge Bell has authorized me to state that he concurs with the views expressed herein.
 
Additional Dissenting Opinion follows:
 
Raker, J., dissenting:

   I respectfully dissent. I would hold that all of the records at issue that have not been disclosed already are exempt from disclosure on the grounds of executive privilege, and particularly the deliberative process privilege, as enunciated by this Court in Hamilton v. Verdow, 287 Md. 544, 414 A.2d 914 (1980), and incorporated into the Maryland Public Information Act, Maryland Code (1984, 1999 Repl. Vol.), § 10-615(1) of the State Government Article. n1

n1 Section 10-615 states, in relevant part, that "[a] custodian shall deny inspection of a public record or any part of a public record if: (1) by law, the public record is privileged or confidential."

[***120]

   This Court recognized the doctrine of executive privilege as part of Maryland law in Hamilton, 287 Md. at 562, 414 A.2d at 924. n2 The privilege has its foundations in the common law of evidence and the constitutional principle of separation of powers, including the express provision of Article 8 of the Maryland Declaration of Rights. See id. While the Court observed that executive privilege generally is not absolute, it found that the interest in protecting confidential government [*594] communications justified a presumptive privilege: "When a formal claim of executive privilege is made for confidential communications of the chief executive . . . or other government officials of an advisory or deliberative nature, there is a presumptive privilege, with the burden upon those seeking to compel disclosure." Id. at 563, 414 A.2d at 925 (citations omitted). We went on to hold that this presumptive privilege extended even to "'the limited intrusion represented by an in camera examination of the conversations by a court.'" Id. (quoting Senate Select Committee on Pres. Cam. Act. v. Nixon, 162 U.S. App. D.C. 183, 498 F.2d 725, 730 (D.C. Cir. 1974)). [***121]

n2 The Court, in Hamilton, was ruling on a certified question of Maryland law from the United States District Court for the District of Maryland, pursuant to the Maryland Uniform Certification of Questions of Law Act, Maryland Code (1974, 1995 Repl. Vol.) §§ 12-601 -- 12-609 of the Courts and Judicial Proceedings Article (current version at Maryland Code (1996, 1998 Repl. Vol., 1999 Cum. Supp.) §§ 12-601 -- 12-613 of the Courts and Judicial Proceedings Article). See Hamilton v. Verdow, 287 Md. 544, 546, 414 A.2d 914, 916 (1980). Hamilton dealt with an assertion of privilege in the context of discovery in a tort suit brought in federal court on the basis of diversity of citizenship. See id. at 547, 414 A.2d at 917.

   The doctrine of executive privilege does not apply solely to opinion material. Even where the confidential communications or documents sought are factual in nature, a balancing process is used, wherein the government's need for confidentiality is weighed against[***122] the litigant's need for disclosure. See Hamilton, 287 Md. at 564, 414 A.2d at 925. Although compiled or severable factual material ordinarily is available for discovery, we reasoned, in Hamilton, that "material cannot always 'easily be separated into fact finding and decision making categories,'" id. at 564, 414 A.2d at 925-26 (citations omitted), recognized that "some factual material is entitled to a degree of protection under the privilege," including "facts obtained upon promises or understandings of confidentiality, investigative facts underlying and intertwined with opinions and advice, and facts the disclosure of which would impinge on the deliberative process," [**290] 287 Md. at 564-65, 414 A.2d 926, and concluded that, in these situations, "the government's asserted reasons for nondisclosure are weighed against the litigant's need for discovery in light of the particular circumstances of each case." Id. at 565, 414 A.2d at 926.

   The Hamilton Court further explained that "in camera inspection by the trial judge does not automatically follow whenever a claim of executive privilege is made," since "the in camera[***123] inspection itself is an intrusion upon the privilege." 287 Md. at 566, 414 A.2d at 926. We concluded:

   Thus, when a formal claim of executive privilege is made, with an affidavit stating that the demanded materials are of [*595] a type that fall within the scope of the privilege, they are presumptively privileged even from in camera inspection. The burden is on the party seeking production to make a preliminary showing that the communications or documents may not be privileged or, in those cases where a weighing approach is appropriate, that there is some necessity for production. . . . Consequently, absent such a preliminary showing by the party demanding disclosure, the claim of executive privilege should be honored without requiring an in camera inspection.
 
287 Md. at 566-67, 414 A.2d at 926-27 (internal citations omitted) (emphasis added).

   The Governor's Office has asserted executive privilege with respect to the documents at issue in this case, i.e., the requested telephone records and appointment calendars. That assertion has been accompanied by affidavits by Governor Glendening and members of his staff, explaining how the documents fall within[***124] that privilege. I respectfully disagree with the majority opinion's dismissal of the validity of that claim. While the individual entries in the documents in question are generally "factual" in nature, in compilation they disclose the deliberative processes of the Governor's Office.

   In Times Mirror Co. v. Superior Court, 53 Cal. 3d 1325, 813 P.2d 240, 283 Cal. Rptr. 893 (1991), the California Supreme Court considered a closely analogous case in which a newspaper sought disclosure of the Governor of California's appointment calendars and schedules under the California Public Records Act, CAL. GOV'T CODE § 6250 (West 1995). In that case, like this one, the Governor had conceded that his appointment calendars were public records within the meaning of the California Public Records Act, but asserted that they were exempted from disclosure. See Times Mirror, 813 P.2d at 250 n.12. The California Supreme Court, citing this Court's decision in Hamilton, see 813 P.2d at 248 n.10, held that disclosure of the documents was not in the public interest and based its reasoning, in part, on the deliberative process privilege. See 813 P.2d at 252. While the majority[***125] is correct [*596]in pointing out that the California statute contained a public interest exemption not present in the Maryland Public Information Act, the California court's reasoning is equally applicable to the present case:

   Disclosing the identity of persons with whom the Governor has met and consulted is the functional equivalent of revealing the substance or direction of the Governor's judgment and mental processes; such information would indicate which interests or information he deemed to be of significance with respect to critical issues of the moment. The intrusion into the deliberative process is patent.
 
813 P.2d at 251. The court concluded that "while the raw material in the Governor's appointment calendars and schedules is factual, its essence is deliberative." Id. n3

n3 This exemption was extended to telephone records of a City Council member in Rogers v. Superior Court of L.A. County, 19 Cal. App. 4th 469 (1993). But cf. DR Partners v. Board of County Comm'rs of Clark County, 6 P.3d 465, 2000 Nev. LEXIS 84, 2000 WL 1174832 (Nev.) (holding that deliberative process privilege was not implicated by disclosure of county officials' cellular telephone records). While the Nevada Supreme Court disagreed with the premise of Times Mirror and Rogers, see  19 Cal. App. 4th at 474, it also distinguished those opinions on the facts of the cases, noting that, in DR Partners, the newspaper seeking disclosure of the records was specifically investigating possible government waste and the County had not properly accounted for payment for private use of governmental cellular phone service by government officials in the records in the trial court proceedings. See 19 Cal. App. 4th at 474-475.

[***126] [**291]

   The United States Court of Appeals for the District of Columbia Circuit has followed similar analysis in the context of whether the President's Task Force on National Health Care Reform was required to comply with the open meeting requirements of the Federal Advisory Committee Act:

   If public disclosure of the real information-gathering process is required, the confidentiality of the advice-giving function inevitably would be compromised. If you know what information people seek, you can usually determine why they seek it. A group directly reporting and advising the President must have confidentiality at each stage in the formulation of advice to him.
 
[*597] Association of Am. Physicians and Surgeons, Inc. v. Clinton, 302 U.S. App. D.C. 208, 997 F.2d 898, 910 (D.C. Cir. 1993) (emphasis added).

   Similarly, in Taylor v. Worrell Enterprises, Inc., 242 Va. 219, 409 S.E.2d 136 (1991), the Virginia Supreme Court held that itemized long distance telephone bills for calls placed by the Governor's office that were sought by a newspaper publisher were exempt from disclosure under the Virginia Freedom of Information Act, VA. CODE ANN. § 2.1-340 (Michie 1999). [***127] Like the Appellee in this case, the publisher in Worrell argued that disclosure of the phone bills would not encroach on the Governor's decision-making process because the content of the calls would remain confidential. See 409 S.E.2d at 138. However, the plurality opinion n4 rejected that contention, explaining that "data which show the time and the originating and terminating location of a call is information concerning the activity of the Governor's office," since "the data, standing alone, could provide a basis for public speculation" and "an information base for further investigation which could subject recipients of such calls to inquiries regarding the calls and their content." Id. The plurality went on to express its concern about the potential chilling effect that release of the information could have on both the Governor and the individuals that he might want to consult via telephone, arguing that "[a] lack of candor or an unwillingness to participate in the decision making process is as likely to flow from the compelled disclosure of the fact of consultation as from the disclosure of the content of the consultation." 409 S.E.2d at 139.

n4 The three-judge plurality held that disclosure of the telephone records would be unconstitutional because the interference with the Governor's decision-making process would violate the separation of powers doctrine. See Taylor v. Worrell Enterprises, Inc., 242 Va. 219, 409 S.E.2d 136, 139 (1991). The Chief Justice, who concurred in the result, argued that the separation of powers and executive privilege issues had not been properly raised for appellate review, but concluded that the phone bills were "memoranda" and were, therefore, statutorily exempt from disclosure. See 409 S.E.2d at 140.

[***128]

   Concern with the potential chilling effect that disclosure of deliberative documents could have on the ability of executive officials to execute the duties of the Governor's office underlies [*598] much of the jurisprudence on executive privilege. As the court in Times Mirror explained:

   If the law required disclosure of a private meeting between the Governor and a politically unpopular or controversial group, that meeting might never occur. Compelled disclosure could thus devalue or eliminate altogether a particular viewpoint from the Governor's consideration. Even routine meetings between [**292]the Governor and other lawmakers, lobbyists or citizens' groups might be inhibited if the meetings were regularly revealed to the public and the participants routinely subjected to probing questions and scrutiny by the press. 
 
Times Mirror, 813 P.2d at 251. The United States Supreme Court has also recognized the importance of the expectation of executive confidentiality:

   The expectation of a President to the confidentiality of his conversations and correspondence, like the claim of confidentiality of judicial deliberations, for example, has all the values to which we accord deference[***129] for the privacy of all citizens and, added to those values, is the necessity for protection of the public interest in candid, objective, and even blunt or harsh opinions in Presidential decisionmaking. A President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately. These are the considerations justifying a presumptive privilege for Presidential communications. The privilege is fundamental to the operation of Government and inextricably rooted in the separation of powers under the Constitution.
 
United States v. Nixon, 418 U.S. 683, 708, 94 S. Ct. 3090, 3107, 41 L. Ed. 2d 1039 (1974).

   This potential for disruption of the essential communicative, investigative, and deliberative functions of the Governor's office are equally in force in this case. In fact, these policy concerns are particularly compelling in the face of the sweeping scope of the Appellee's demand for production of documents [*599]in this case and the lack of any specifically identified public interest by the Appellee in these particular materials. The majority stresses [***130]the age of the documents that are being sought in this case as undermining the potential chilling effect of their disclosure on the Governor's ability to access a broad spectrum of viewpoints, see maj. op. at 47-48, but this is hardly a determinative factor. I see no reason to believe that a government official or community member might not be just as hesitant to engage in a confidential communication whether it was likely to be disclosed immediately or in four years.

   Nonetheless, that is not to say that there is no situation under which the types of records sought here should be obtainable. Under the balancing test outlined in Hamilton, 287 Md. at 564-65, 414 A.2d at 925-26, it is conceivable that the doctrine of executive privilege might not shield telephone or appointment records that were subject to a more focused and limited request that would have substantially less of an impact on the deliberative process. n5 That simply is not the situation here, where Appellee has requested all of the Governor's schedules and telephone records for himself and several members of his staff, covering a six month period, without offering any evidence to dispute the Governor's[***131] initial showing that the requested documents are protected by executive privilege.

n5 Cf.  Times Mirror Co. v. Superior Court, 53 Cal. 3d 1325, 813 P.2d 240, 253, 283 Cal. Rptr. 893 (1991):

   There may be cases where the public interest in certain specific information contained in one or more of the Governor's calendars is more compelling, the specific request more focused, and the extent of the requested disclosure more limited; then, the court might properly conclude that the public interest in nondisclosure does not clearly outweigh the public interest in disclosure, whatever the incidental impact on the deliberative process.

   Given the doctrine of executive privilege outlined by this Court in Hamilton, and given the policy concerns with the chilling of the important constitutional functions of the Governor and his staff, I would reverse the decision of the Circuit Court and hold that, as a matter of law, the Appellee has not [*600] made a sufficient showing of necessity to overcome the presumption[***132] of executive[**293] privilege for the requested documents. Accordingly, I dissent. 

Kissi v. National Data 
Pet. Docket No. 266, September Term, 2000
 
COURT OF APPEALS OF MARYLAND
 
360 Md. 487; 759 A.2d 231; 2000 Md. LEXIS 641

 September  12, 2000, Decided

NOTICE: 

  [*1]  DECISION WITHOUT PUBLISHED OPINION 

PRIOR HISTORY:  (No. C-1999-58710CP, Circuit Court for  Anne Arundel  County).

OPINION: Petition for Writ of Certiorari denied. 

STEPHEN MARKOV v. ROBIN MARKOV 
No. 58, September Term, 1999
 
COURT OF APPEALS OF MARYLAND
 
360 Md. 296; 758 A.2d 75; 2000 Md. LEXIS 515

 August  23, 2000, Filed

   PRIOR HISTORY:  [***1] Appeal from the Circuit Court for  Anne Arundel  County pursuant to certiorari to the Court of Special Appeals. Case No. C-97-42595 DV. James C. Cawood, Jr., JUDGE.

DISPOSITION: JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY VACATED IN PART. CASE REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. COSTS TO BE DIVIDED EQUALLY. 
CASE SUMMARY 

PROCEDURAL POSTURE:  Appellant challenged Circuit Court for Anne Arundel County (Maryland) order finding appellant was equitably estopped from denying paternity of twin girls born during his marriage to appellee and awarding child support in the parties' divorce action. State supreme court granted writ of certiorari on its own initiative.

OVERVIEW:  The parties were divorced three days after the 12th birthday of twin girls born during the first year of the marriage. Years after their birth, appellee wife confessed to a short-lived liaison two weeks after her wedding day, underscoring appellant's uncertainty about his paternity of the girls because he had a vasectomy before the wedding. Appellant, however, had supported the girls and held them out as his daughters even during brief separations from appellee, until his attorney advised him to stop all contact. No paternity test was done but both parties acknowledged during divorce proceedings that appellant was not the girls' biological father. The court so ruled, but ordered him to pay child support based on equitable estoppel. He appealed. The supreme court granted certiorari on its own motion and vacated the divorce court ruling, holding it was error to rule on non-paternity without scientific evidence, and though appellee had reasonably relied on appellant's representations regarding the girls, she could not assert estoppel as a defense until she proved financial detriment.

OUTCOME:  Order was vacated. Circuit Court erred in declaring appellant in divorce proceeding was not biological father of twin girls and incorrectly formulated estoppel on issue of paternity. Appellant could not be estopped from denying duty to pay child support until appellee established financial detriment, despite appellee's reasonable reliance on appellant's past conduct and representations.

CORE TERMS:  girls, paternity, child support, twin, equitable estoppel, biological father, marriage, blood test, minor children, non-paternity, declaration, detriment, paternity action, natural father, duty to pay, presumed, equitably estopped, duty of support, conversation, biological, estopped, estoppel, vel, rebuttable presumption, sufficient evidence, divorce action, formulated, permanent, vasectomy, monetary

CORE CONCEPTS -  

Family Law: Child Support: Obligations
A child born of a married woman is presumed to be the legitimate offspring of her husband.

Family Law: Child Support: Obligations
The presumption of legitimacy may be overcome when common sense and reason requires that departure.

Family Law: Parental Rights & Duties: Nonmarital Children
Under Md. Code Ann. § 5-1027(c)(1) (1999 Repl. Vol.), there is a rebuttable presumption that a child is the legitimate child of the man to whom its mother was married at the time of conception.

Family Law: Parental Rights & Duties: Nonmarital Children
Under Md. Code Ann. § 1-206(a) (1999 Cum. Supp. ), a child born or conceived during a marriage is presumed to be the legitimate child of both spouses.

Civil Procedure: Pleading & Practice: Defenses, Objections & Demurrers: Affirmative Defenses
The essential elements of equitable estoppel are voluntary conduct or representation, reliance, and detriment.

Family Law: Child Support: Obligations
The type of detriment that must be established in order to give rise to equitable estoppel in an action for child support is a financial loss.

Civil Procedure: Pleading & Practice: Defenses, Objections & Demurrers: Affirmative Defenses
Whether or not an estoppel exists is a question of fact to be determined in each case.

Family Law: Paternity & Surrogacy
In accordance with the pellucid language of Md. Code Ann. § 5-1038(b), all paternity orders except declarations of paternity can be modified or set aside in light of the circumstances and in the best interests of the child.

COUNSEL: ARGUED BY Michael J. Lay (Motsay and Lay, on brief) of Baltimore, Maryland, FOR APPELLANT.
 
ARGUED BY John J. Ryan (Ryan & Drewniak, P.A., on brief) of Annapolis, Maryland, FOR APPELLEE.

 JUDGES: ARGUED BEFORE Bell, C.J.; Eldridge, Rodowsky, Raker, Wilner, Cathell, and Harrell, JJ. Opinion by Raker, J. Bell, C.J., concurs in the judgment only. Dissenting opinion by Eldridge, J.

OPINIONBY: Raker

OPINION: [**76] [*298]

   The parties in this appeal, Stephen Markov, Appellant, and Robin Markov, Appellee, were granted an absolute divorce by the Circuit Court for Anne Arundel County, as sought by Appellee, on December 28, 1998, just three days after the twelfth birthday of twin girls who were born during the first year of the couple's marriage. Presented for our review is the propriety of the Circuit Court's finding that Appellant is equitably estopped from denying paternity of the two girls and its concomitant decision awarding Appellee child support as part of the relief that she requested in her divorce action. In addition to concluding that the Circuit Court incorrectly formulated its estoppel of Appellant on the issue of paternity and improperly issued[***2] a ruling as to Appellant's non-paternity of the children, we shall hold that Appellant may not be estopped from denying a duty to pay child support until Appellee establishes financial detriment.
 
Factual Background

   Appellant and Appellee were married in Baltimore County on Valentine's Day in 1986. A little over ten months later, on Christmas Day of that same year, Appellee gave birth to twin girls, Amanda and Kelly. Despite these seemingly blessed beginnings, the parties' relationship unfortunately did not prove to be everlastingly blissful. In the summer of 1992, Appellee confessed to having had a short-lived, extramarital liaison with a college student some two weeks after her wedding day. n1 This revelation significantly underscored Appellant's [*299]earlier uncertainty about his paternity of the two girls, arising from the fact that he had undergone a vasectomy sometime prior to the wedding.

n1 There exists some confusion within the record and the parties' briefs as to when Appellee informed Appellant of her adultery and the associated doubt as to, if not negation of, Appellant's paternity of the twin girls. Most of the testimony and excerpts from the briefs indicate or refer to the summer of 1992 as the time of disclosure, yet, in other parts, the year is professed to be 1991.

[***3]

   Over the next few years, the couple endured periodic episodes of separation, of varying but always short duration, until March of 1997, when the parties separated permanently. Although Appellant and Appellee remained apart since that time, Appellant voluntarily made support payments to Appellee until October of 1997 n2 and continued a paternal relationship with the twin girls, either through actual visitation or telephone calls, until May of 1998, when he stopped all contact with them. Insofar as the parties' pleadings and testimony on various factual occurrences and conversations conflict, and given that the Circuit Court did not issue specific findings of fact, it is unclear whether either person, for a significant part of their early marriage, was completely sure as to the veracity vel non of Appellant's status and representation as the twin girls' father. In any event, with respect to the later years of their marriage, both parties have believed for a long time, at least since 1992, that Appellant is not the children's biological father. The parties steadfastly abide by this position even though, according to the record, no scientific evidence confirming (or refuting) such[***4] has ever been produced or even procured. 

n2 The parties differ on the purpose of these payments. Appellant maintains that he sent money simply to help "pay the bills;" Appellee contends that the contributions were directed expressly to the support of the two girls.

 
Procedural Background

   In initiating the divorce action, Appellee alleged in her "Complaint for Limited Divorce and Other Relief" that the twin girls "were born to the parties as a result of their marriage." As part of her demand [**77] for relief, Appellee requested that "she be awarded child support pursuant to the Maryland Child Support Guidelines." In timely fashion, Appellant filed a written answer generally denying a great [*300] majority of Appellee's allegations. At the same time, Appellant filed a motion pursuant to Maryland Rule 2-423 asking the Circuit Court to issue an order requiring that the parties "and the alleged children of the marriage submit to a blood test for purposes of determining paternity."

   Appellee submitted a written answer[***5] to Appellant's motion stating that "a blood test for paternity is entirely unnecessary . . . as paternity is not an issue in this case and it is admitted and established that [Appellant] is not the biological father of the two (2) minor children." n3 In addition, Appellee asserted that Appellant "should be estopped from denying that he has held himself out as the father of the two (2) minor children and that he is the only father that the children have known." n4 

n3 At the end of her "Answer to Motion for Order for Blood Test," Appellee attached a proposed order for the Circuit Court's consideration, to the effect "that [Appellant]'s Motion For Order For Blood Test be denied as [Appellant] is not the biological father of the two (2) minor children born during the parties' marriage and paternity is not at issue in this case."

n4 Despite the more limited, and perhaps ineffectual, estoppel arguably sought by Appellee's pleading in her answer to Appellant's motion for the blood test, it is clear that the Circuit Court interpreted her pleading as a request that Appellant be equitably estopped from denying paternity of the twin girls altogether and absolutely. Indeed, in her later filings to the Circuit Court, Appellee requested "that the court find that [Appellant] by virtue of his actions is estopped from denying that he is the 'father' of the two minor children."

[***6]

   On February 2, 1998, the Circuit Court directed as follows:

   As [Appellant] requested a hearing, and given that the blood tests could in fact be/or lead to, a final disposition of the claim, or defense to a part of the claims, the matter needs a hearing.

   Schedule the Motion for Blood Test before any judge.
 
Nevertheless, it appears that a hearing on the motion for blood tests was never conducted. By way of a letter to the Circuit Court dated January 30, 1998, Appellant, the party who had requested the hearing, seemingly waived the hearing as unnecessary in stating, "In as much as [Appellee] confirmed that [Appellant] is not the father of her children, there now [*301] appears to be no issue as to [Appellant]'s lack of biological parentage in this case; and [Appellant] would appreciate the Judge signing the proposed Order, accordingly." n5

n5 Although the letter indicates that Appellant's "proposed Order" was "enclosed herewith," the record furnished to this Court does not include such an order proposed by Appellant. Consequently, we can only speculate as to what Appellant had in mind.

[***7]

   The Circuit Court subsequently denied Appellant's motion for the blood test, issuing an order dated March 9, 1998 that stated in part:

   1. That [Appellee, Appellant] and the previously alleged children of the parties are not required to submit to a blood test for purposes of determining paternity in light of Plaintiff's Answer admitting and confirming that the Defendant is in fact not the biological father of the two (2) children, namely: Amanda Markov and Kelly Markov;

   2. That [Appellant] be and is hereby determined and ruled not to be the biological father of the said two (2) children, namely: Amanda Markov and Kelly Markov.

   By this order, Appellant's non-paternity was thus established for purposes of the case to the satisfaction of the Circuit Court as well as, apparently, to the satisfaction of Appellee, but not to that of Appellant. Despite the Circuit Court's declaration that he was not the biological father of the two girls, Appellant renewed his request [**78] "that the Court pass an Order requiring the parties and the alleged children of the marriage to submit to a blood test to determine paternity of the said children." The litigation then continued as to[***8] whether Appellant should be ordered by the court to continue to pay child support. n6

n6 A factual assertion that Appellant appears to have maintained throughout the litigation of the present case is that, up until the time of being ordered to do so, he has never provided child support per se, that whatever monetary contributions he made were not directly in support of the children. See, e.g., supra note 2 and accompanying text.

   [*302]

   Appellee requested in her "Supplemental Complaint for Absolute Divorce and Other Relief," filed April 16, 1998, that the court order Appellant to continue to pay child support under a theory of equitable estoppel. Specifically, Appellee argued that, because Appellant "was aware that he was not the natural father of the two minor children born during the marriage, . . . held himself out as the children's father and has contributed to the monetary and non-monetary support of the minor children both during the time that the parties lived together as husband and wife and after[***9] the parties separated," and because "for the children's entire life, they have believed that [Appellant] is their father and have maintained a relationship in that capacity throughout and until the filing of this [litigation]," the court should rule that Appellant "by virtue of his actions is estopped from denying that he is the 'father' of the two minor children."

   Appellant filed a written response denying that he was aware of his non-paternity and that he held himself out as the girls' father, asserting that his monetary and non-monetary contributions were directed "to the support of the marriage," as opposed, presumably, to the support of the children, and stating that he could "not attest to what the minor children of [Appellee] believed." In addition, Appellant highlighted and incorporated the Circuit Court's March 9, 1998 order, which he characterized as "finding that [Appellant] is not the biological father" of the two girls. Appellant further asserted that, because he does not fit within the definition of a "parent" under the Child Support statute, he "therefore is not legally responsible for the payment of child support, as a 'parent.'" Finally, Appellant pointed[***10] out that Appellee's formulation of a child support obligation on his part under a theory of estoppel was made "without providing any legal authority for such an assertion." In a subsequent filing, Appellant reasserted his demand that a blood test be performed on all the pertinent persons, as noted above.

   On May 8, 1998, the Circuit Court ordered that the case be set for hearing "on all open matters." Accordingly, on December 7, 1998, the Circuit Court held a hearing. The court [*303] filed a written opinion on December 23, 1998, holding that Appellant is equitably estopped from denying paternity of the twin girls. Thereafter, the court issued a "Judgment of Absolute Divorce," stating that "all issues pertaining to the [twin girls born during the course of the parties' marriage] will be addressed by this Court in a separate order . . . ." On January 16, 1999, Appellant first filed a Notice of Appeal, "from the final judgment entered in this action on December 28, 1998," referring to the Circuit Court's Judgment of Absolute Divorce. The record then indicates that, on February 5, 1999, the Circuit Court called the Markovs' case for a "Hearing on Support," that counsel were heard, that an[***11] agreement was placed on the record, and that Appellee's counsel was to prepare an appropriate order.

   On May 3, 1999, the Circuit Court issued an "Earnings Withholding Order," requiring Appellant to pay Appellee the sum of $697.36 per month or the sum of $162.18 per week for the support of "the parties' minor children, namely Amanda Markov and Kelly Markov." Twenty-five days later, on May 28, 1999, Appellant filed a second Notice of Appeal, "from the final [**79] judgment entered in this action on May 3, 1999." Prior to a decision by the Court of Special Appeals, this Court granted a writ of certiorari on its own initiative.

 
Analysis

   It behooves us to address two preliminary matters before reviewing the Circuit Court's finding of equitable estoppel in the present case. First, we conclude that it was beyond the authority of the Circuit Court to declare, by way of a preliminary order in Appellee's divorce proceeding, that Appellant is not the biological father of the twin girls. With respect to the issue now before this Court, the task of the trial court, as placed upon it by Appellee's divorce action and her related claims, concerned only whether Appellant has a duty [*304] to[***12] pay child support. Under the circumstances that Appellant's putative paternity, albeit a question of fact strenuously and repeatedly denied by both parties, was undeniably not the basis upon which Appellee asserted that Appellant had a duty to pay child support, and particularly where the Circuit Court was without the benefit of a blood test or other scientific investigation, it was error for the judge to announce a ruling as to Appellant's non-paternity.

   Indeed, under the centuries-old common law rule first promulgated by Lord Mansfield in 1777, a child born of a married woman is presumed to be the legitimate offspring of her husband. See Goodright v. Moss, 2 Cowp. 591, 592-94, 98 Eng. Rep. 1257, 1258 (1777) ("The law of England is clear that the declarations of a father or mother cannot be admitted to bastardize the issue born after marriage. . . . As to the time of the birth, the father and mother are the most proper witnesses to prove it. But it is a rule founded in decency, morality, and policy, that they shall not be permitted to say after marriage that they have had no connection, and therefore that the offspring is spurious."); see also Hale v. State, 175 Md. 319, 323, 2 A.2d 17, 19 (1938) [***13]("[Lord Mansfield's Rule] has been adopted in Maryland and in many other states; however, qualifications have been applied to the rule, so rationalizing it that, in this state and elsewhere, the presumption of legitimacy may be overcome when common sense and reason requires that departure."); Staley v. Staley, 25 Md. App. 99, 102-03, 335 A.2d 114, 117 (1975) ("[Lord Mansfield's Rule], as formulated in Maryland, created a presumption that the child of a married woman was the legitimate issue of her husband, which presumption could be rebutted by clear and convincing testimony of a person other than the husband or mother, that the husband did not have intercourse with the mother at a time when conception of the child in question would have been possible."). The General Assembly has codified this common law rule in two separate statutes as a rebuttable presumption. See Maryland Code (1997, 1999 Repl. Vol., 1999 Cum. Supp.) § 5-1027(c)(1) of the Family Law Article ("There is a rebuttable presumption that the child is the legitimate child of the man to whom its mother was married at the time of conception."); Maryland Code (1974, 1991 Repl. Vol., 1999 Cum. Supp. [***14] ) § 1-206(a) of the Estates and [*305]Trusts Article ("A child born or conceived during a marriage is presumed to be the legitimate child of both spouses.").

   It thus cannot be denied that there existed at the beginning of this case a presumption that Amanda and Kelly Markov are the biological children of Appellant given the undisputed fact that they were both conceived and born during the parties' marriage. Nevertheless, that presumption was rebutted for purposes of the present case when, two months after filing her initial complaint, Appellee answered Appellant's motion requesting a blood test, stipulating that he was not the father. Ever since that time, Appellee has exclusively relied upon the doctrine of equitable estoppel as the singular basis for the alleged duty of Appellant to support the two girls, explicitly eschewing any claim that Appellant owes a duty of support based [**80] upon a biological relationship to the twins. It consequently misses the mark for Appellant, or any court hearing the parties' dispute, to focus upon the paternity vel non of Appellant, whether born of any common law or statutory presumption or to be induced from the result of a scientific test. For purposes [***15]of this litigation, paternity is simply not an issue in the present case.

   Finally, the Circuit Court's declaration of non-paternity in the manner it chose, outside of the statutory scheme for paternity actions found in Maryland Code (1984, 1999 Repl. Vol., 1999 Cum. Supp.) §§ 5-1001 to 5-1048 of the Family Law Article would seem to thwart the apparent protections of the children's interests that inhere in the regular, quasi-mandatory involvement of the Office of the State's Attorney in such proceedings. n7 Even more deleterious to the children's interests, if not an outright obviation of them, is the preclusive effect potentially wrought by the court's declaration of Appellant's non-paternity upon any paternity action that the girls [*306] might later choose to file. See Jessica G. v. Hector M., 337 Md. 388, 400, 653 A.2d 922, 928 (1995) (while finding it unnecessary to decide the issue, nonetheless noting that "the vast majority [of jurisdictions outside Maryland] follow the proposition that when there is an actual factual determination of non-paternity in a paternity suit by the child's mother, then the child is forever bound by that factual finding"). 

n7 For instance, § 5-1010(e)(2)(ii) requires that, ordinarily, a mother may file a paternity action only with the express consent of the State's Attorney, unless certain conditions are met. Moreover, such a paternity action may be not be dismissed voluntarily without the consent of the State's Attorney except "by an order of the court for good cause shown." § 5-1010(e)(3).

[***16]

   Because the present case was not prosecuted as a paternity action, because Appellee, as well as the court, treated the issue of paternity as a matter for stipulated denial rather than as a factual matter needing to be investigated and determined, whether by rebuttable presumption, scientific inquiry, or otherwise, and because there were other competing interests involved in the present case yet perhaps unrepresented, namely, those of the twin girls, the court's declaration of non-paternity was error. We therefore shall direct the Circuit Court to vacate that portion of its March 9, 1998 order declaring that Appellant is not the biological father of Amanda and Kelly Markov. n8 Cf.  In re Adoption/Guardianship No. 10935, 342 Md. 615, 631, 679 A.2d 530, 537 (1996) (holding that "the only dispute in this case relates to a matter which was not properly an issue, namely the duty of support" and modifying the lower court's order "to make it clear that the order does not represent any adjudication whatsoever with respect to the duty of support"). 

n8 By the same token, no precedential value should be given to the Circuit Court's statement in its opinion in the present case that Appellant "is not factually the natural father." With a certain degree of disingenuousness, Appellee has stated to this Court that "one of the truly interesting things about this case is that there is still no proof that the children are not Appellant's biological children. When Appellant sought a blood test, Appellee did not oppose it. So, while there has been a court order determining paternity, science has never been given the opportunity to make a final determination." (Brief for Appellee at 5, n.1.) We think it paramountly clear from the record, as our discussion above indicates, that Appellee offered substantial opposition to the ordering of a blood test by the Circuit Court. See, e.g.,  supra note 3. Moreover, it is Appellee's stipulation as to Appellant's non-paternity and her exclusive reliance on equitable estoppel that rendered a scientific determination of Appellant's paternity vel non of the twin girls unnecessary for resolution of the narrow issue before the Court.

[***17]

   [*307]

   The irrelevancy of paternity in the present case likewise lies at the heart of the second preliminary matter calling our attention, namely that the Circuit Court incorrectly formulated its equitable estoppel of Appellant in terms of a denial of paternity rather than on the proper issue, that [**81] of denying a duty to pay child support. It is perhaps understandable that the trial court would couch the issue in such fashion. Many courts that have addressed the issue of equitable estoppel in the context of a child support proceeding have done the same. See Knill v. Knill, 306 Md. 527, 532-34, 510 A.2d 546, 548-49 (1986) (discussing and citing many cases outside of Maryland relating equitable estoppel in child support dispute to denial of paternity). Nevertheless, this Court couched the decision in Knill not in terms of a denial of paternity but strictly in terms of an equitable estoppel to deny a duty to pay child support, holding that Appellant was "not equitably estopped to deny a duty to support." Id. at 539, 510 A.2d at 552. It was therefore incumbent upon the Circuit Court to tailor its finding of equitable estoppel in the same manner.

   The appropriate[***18] contours for a trial court's finding of equitable estoppel in a child support action have been set out in Knill. See id. at 536, 510 A.2d at 550. This Court, after reiterating that the essential elements of equitable estoppel are "'voluntary conduct' or representation, reliance, and detriment," id. at 535, 510 A.2d at 550, held that the type of detriment that must be established in order to give rise to equitable estoppel in an action for child support is a financial loss. See id. at 538, 510 A.2d at 552. Quite importantly, this Court reiterated in Travelers v. Nationwide, 244 Md. 401, 224 A.2d 285 (1966), that "we have repeatedly stated that whether or not an estoppel exists is a question of fact to be determined in each case." Id. at 414, 224 A.2d at 292 (emphasis added) (citing Gould v. Transamerican Associates, 224 Md. 285, 297, 167 A.2d 905, 911 (1961); Liberty Mut. Ins. Co. v. American Auto. Ins. Co., 220 Md. 497, 501, 154 A.2d 826 (1959); and cases cited therein).

   [*308]

   Based upon the evidence presented in the instant case, the Circuit Court found as a matter[***19] of fact that an equitable estoppel existed. It is apparent from its written opinion in the instant case that the court was aware of and correctly understood the required elements for equitable estoppel in the context of a child support proceeding. Neither party disputes this proposition. n9 What is disputed by the parties is the correctness vel non of the court's application of those legal principles to the facts presented. Our only task then is to scrutinize whether there was sufficient evidence before the trial court to support its finding of equitable estoppel in the present case.

n9 In citing our decision in Knill, 306 Md. at 535, 510 A.2d at 550, the Circuit Court wrote that the three elements of equitable estoppel in Maryland are "a representation, release, and detriment." Even Appellant concedes, however, that the trial court's use of the term "release" was merely an innocent misnomer for the actual requirement of "reliance."

   Having fully reviewed the record, we find that sufficient[***20] evidence was presented to the Circuit Court to support the conclusion that Appellee and her twin daughters reasonably relied upon Appellant's conduct and verbal representations that he would provide for the support of the girls for as long as necessary. n10 In his deposition, Appellant indicated that he suspected from the time that he was informed of Appellee's pregnancy that he was not the responsible party and that, by the time that the twin girls were born, he was convinced that he was not their biological father. Even so, Appellant admitted that he led others to believe that the doctor who had performed his vasectomy had confirmed that he was capable of siring the children because one of the vas had reconnected. Appellee testified that, shortly after she announced her pregnancy, Appellant [**82] told her the same, leading [*309] her to believe that he might be the father despite her as yet unrevealed sexual relations with another man. When she discovered that she was pregnant with twins, Appellee became even more convinced that Appellant could well be the father in light of his having previously fathered a set of twins with a high school girlfriend. Despite his early suspicions and later personal[***21] conviction to the contrary, Appellant allowed himself to be named as the twins' father on their birth certificate.

n10 We note that, although Appellant contested virtually every aspect of Appellee's pretrial declarations and trial testimony, it is clear from its judgment in the present case that the Circuit Court did not find sufficiently credible Appellant's version of the events, actions, and conversations pertinent to the court's consideration of a non-paternity-based duty of child support on his part.

   Four-and-a-half to five-and-a-half years of the parties' living together as the married parents of the twin girls passed before the possibility once again arose--and, according to the parties, the permanent realization set in--that Appellant was not the girls' biological father. It was then that Appellant confronted Appellee with information that he had learned from his sister as to the dubiousness of his paternity of the two girls. During the ensuing conversation, Appellee confessed that she had been involved[***22] in the extramarital relationship shortly after the wedding, and Appellant revealed that his rendition of a reconnection was mere ruse. Moreover, Appellee testified that, during this telling conversation, Appellant stated that "he had always known that he was not [the girls'] father, and that he intended to raise these children as his own." Appellee also testified that the two parties at that point discussed adoption for the one and only time but that Appellant assured her that no adoption was required because he intended to raise the girls as his own, and that all that an adoption would entail was an "unnecessary legal fee."

   Further evidence was presented that, during the successive years, up until October of 1997, despite the parties' periodic separations and reconciliations, Appellant continued to provide for the support of the two girls even during his absences. In addition, he continuously insisted that he desired to treat and raise the twins as if they were his biological children. In fact, testified Appellee, on the occasion of "each and every" separation save the last, permanent one, she offered Appellant the opportunity to "tell the girls the truth" and to "walk away as[***23] their biological father." Appellant "remained adamant," however, insisting "that he did not want the children to know any [*310] different," that Appellee "was to have no contact with their natural father," and that the girls should "only know him as their father." Furthermore, up until the time of the parties' permanent separation, Appellant "was a good father" to the twins, spent "a lot of time with them," and was very "involved in their lives." Even after the final separation in March of 1997, until the following October, Appellant "visited regularly with the kids," "talked to them almost on a daily basis," and "paid [Appellee] child support." For Christmas that year, he gave the girls presents and hosted a birthday party for them. He continued his visitations with the children until April of 1998, when he took them out for Easter. It was not until May 20, 1998 that Appellant terminated his relationship with the girls, telling them that, on the advice of his attorney, he had to discontinue all contact with them. Thus, Appellant's paternal interaction with Amanda and Kelly lasted over eleven years. 

   On cross-examination, Appellee repeatedly denied that Appellant encouraged her during[***24] their marriage to "go after [the biological father] for child support." She stated that the first time he mentioned taking such action did not occur until October of 1997. When pressed as to why she never searched on her own for the alleged biological father, Steven Mayo, in order to obtain child support for the girls from him, Appellee responded:

   Each time we separated, we talked extensively about whether or not [Appellant] would continue to be their father. I gave him ample opportunity over and over again to back down. He is the one that insisted I not find the biological [**83] father. He is the one that insisted. He continued the role that he portrayed.
 
Finally, when asked why she did not pursue Mr. Mayo even after it became "crystal clear" to her that Appellant could not be the girls' father, on account of his revelation that his vasectomy had not reversed and that he "still was sterile," Appellee answered once again that she "did not at the request of [her] husband."

   [*311]

   The preceding evidence, absent any indication of a legal infirmity barring the fact-finder from believing it, amply supports the conclusion that Appellee reasonably relied upon Appellant's conduct and words[***25] as assurance that he would provide the necessary support of Amanda and Kelly through and to the end of their childhood. Appellee thus presented to the Circuit Court sufficient evidence to establish representation and reliance, the first two elements of equitable estoppel. See Knill, 306 Md. at 535, 510 A.2d at 550.

   The evidence was insufficient, however, under the standard we set out in Knill, to establish the financial detriment required to give rise to equitable estoppel in an action for child support. See id. at 538, 510 A.2d at 552. Although the Circuit Court expressed "extreme doubt that [the biological father] could be located at this period of time," such doubt is not supported by the record in this case in light of the facts known to the parties and given the breadth of information available through today's technology. We therefore conclude that, under the circumstances of the present case, the trial court's finding of fact as to the inability to locate the presumed natural father is untenable.

   The trial judge explained that "Mrs. Markov knew the name of her lover, but is not sure it was correct. She went to where he lived for the assignation, [***26]but was too drunk to remember the number. She believes he was a student at University of Maryland Baltimore Campus." It also seems that the court based its conclusion in part upon the mere passage of time as an insurmountable impediment to locating the putative biological father, Steven Mayo.

   To be sure, there is some doubt as to whether the twin girls' supposed natural father can be located for purposes of initiating a paternity/child support proceeding against him. The existence of such abstract uncertainty, however, cannot suffice to establish as a matter of fact the financial detriment prerequisite to a finding of equitable estoppel with respect to a purported child support obligation on the part of a nonbiological parent. Before such an obligation may justifiably be [*312] placed upon a person not ordinarily so obliged, it is incumbent upon Appellee to demonstrate more substantially that she was and remains unable to locate the putative biological father in order to prove sufficiently that her reliance upon Appellant's prior conduct and verbal representations has resulted in a current or future financial loss, that is, a reasonable opportunity to procure support from the person other[***27] than herself who is primarily responsible for the support of her children. See id. at 531, 510 A.2d at 548 (reiterating that the "duty of child support extends to the natural parents of an illegitimate child, but not to a stepparent" (citing Bledsoe v. Bledsoe, 294 Md. 183, 448 A.2d 353 (1982); Commonwealth of Virginia v. Autry, 293 Md. 53, 441 A.2d 1056 (1982); Brown v. Brown, 287 Md. 273, 412 A.2d 396 (1980))).

   There simply has been no satisfactory proffer by Appellee, or other indication, of any effort to locate the twins' presumed biological father. In fact, Appellee concedes that she "never even tried to learn the identity of the twins' putative father, or to contact him." Brief for Appellee at 7. Based upon representations made by either or both of the parties, Appellee is aware of the man's name or possible name, his possible affiliation with the University of Maryland at Baltimore, the general whereabouts of his residence in Baltimore at the time of Appellees's encounter with him, and perhaps even the specific time [**84]period of their encounter. Yet, none of these leads seems to have been investigated, with reliance[***28] instead upon the facile assertion that these leads do not seem promising. Consequently, we shall order that the Circuit Court's finding of equitable estoppel and its subsequent judgment awarding Appellee child support be vacated.

   In the interests of judicial economy, a remand is appropriate. In Jessica G. v. Hector M., 337 Md. 388, 653 A.2d 922, (1995), this Court held, in accordance with the pellucid language of § 5-1038(b), "that all paternity orders except declarations of paternity can be modified or set aside 'in light of the circumstances and in the best interests of the child.'" Id. at 401, 653 A.2d at 928-29 (quoting § 5-1038(b)). We can fathom no reason why the same reasoning should not be applicable to [*313] an order of child support, even if entered in a divorce proceeding rather than in a paternity action. Because the present case, as it stands before this Court, is essentially nothing more than an action for child support, even should Appellee be ultimately unsuccessful, her twin girls would nonetheless be able to file a separate action against Appellant seeking to set aside the court's order denying child support. Rather than prolonging[***29] the underlying dispute further than is necessary, we find it in the best interests of the children, Amanda and Kelly Markov, that the Circuit Court proceed with a re-hearing in the present case to determine, consistent with this opinion, whether and on what basis Appellant owes a duty of support.
 
JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY VACATED IN PART. CASE REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. COSTS TO BE DIVIDED EQUALLY.

DISSENTBY: ELDRIDGE

DISSENT:  Eldridge, J., dissenting:

   Although there may be good reasons for requiring further circuit court proceedings in this case, I cannot agree with the Court's opinion which reaffirms Knill v. Knill, 306 Md. 527, 510 A.2d 546 (1986), and with the Court's judgment which requires further proceedings in accordance with its opinion. I continue to adhere to the principles set forth in Chief Judge Murphy's dissent in Knill v. Knill, supra, 306 Md. at 539-554, 510 A.2d at 552-560, which was joined by Judge Smith and myself. 

Pinto v. MVA 
Pet. Docket No. 202, September Term, 2000
 
COURT OF APPEALS OF MARYLAND
 
360 Md. 275; 757 A.2d 810; 2000 Md. LEXIS 568

 August  21, 2000, Decided

NOTICE: 

  [*1]  DECISION WITHOUT PUBLISHED OPINION 

PRIOR HISTORY:  (No. 99-57959, Circuit Court for  Anne Arundel  County).

OPINION: Petition for Writ of Certiorari denied. 

LARRY MARCUS JOHNSON v. STATE OF MARYLAND 
No. 102, September Term, 1999
 
COURT OF APPEALS OF MARYLAND
 
360 Md. 250; 757 A.2d 796; 2000 Md. LEXIS 511

 August  18, 2000, Filed

   PRIOR HISTORY:  [***1] Certiorari to the Court of Special Appeals (Circuit Court for  Anne Arundel  County, Case # K98-00092). Clayton Greene, Jr., JUDGE.

DISPOSITION: JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED. CASE REMANDED TO THAT COURT WITH DIRECTIONS TO REVERSE THE JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AND TO REMAND THE CASE TO THAT COURT FOR A NEW TRIAL. COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID BY RESPONDENT. 
CASE SUMMARY 

PROCEDURAL POSTURE:  Petitioner challenged the judgment of the Court of Special Appeals (Maryland), which affirmed petitioner's conviction, entered in the Circuit Court for Anne Arundel County, on 14 counts of theft over $300. The court granted certiorari.

OVERVIEW:  Petitioner was convicted of 14 counts of theft over $300. On appeal, petitioner challenged whether the State was required to provide to the defense petitioner's recorded statement where, instead of introducing the recording at trial, the State adduced the substance of the statement through the testimony of a police officer. The court reversed the judgment, holding that the State was required to furnish the defense with petitioner's recorded statement under Md. R. Crim. Causes 4-263(b)(2)(A). The court reasoned that the State's argument that it provided the substance of petitioner's oral statement, pursuant to Md. R. Crim. Causes 4-263(b)(2)(B), did not relieve the State of its companion obligation to produce the recorded statement under Md. R. Crim. Causes 4-263(b)(2)(A). Further, the court had no difficulty concluding that petitioner was prejudiced by the State's failure to produce the recorded statement prior to the police officer's testimony. The court noted that without the recorded statement, petitioner was unable to prepare for his defense, that is, to effectively cross-examine or impeach the State's witness or to protect himself from surprise.

OUTCOME:  The court reversed the judgment and remanded the case with directions to reverse the judgment of the trial court because it was not satisfied, beyond a reasonable doubt, that the failure to furnish the recorded statement did not contribute to the rendition of a guilty verdict. Accordingly, the court remanded the case for a new trial.

CORE TERMS:  recorded statement, interrogation, recording, videotape, discovery, intend, unlawfully obtained, disclosure, motion to suppress, pre-trial, furnish, cross-examine, burglary, nephew, theft, pretrial, mandated, oral statement, flea market, cross-examination, suppression, videotaped, interview, prepare, booth, tape, physical evidence, plain meaning, case law, recorded

CORE CONCEPTS -  

Criminal Law & Procedure: Discovery & Inspection: Discovery by Defendant
See Md. R. Crim. Causes 4-263(b)(2).

Governments: Courts: Authority to Adjudicate
Governments: Legislation: Construction & Interpretation
With respect to the interpretation of the Maryland Rules, the canons and principles which Maryland courts follow in construing statutes apply equally to an interpretation of the Maryland Rules.

Governments: Courts: Authority to Adjudicate
In order to effectuate the purpose and objectives of a Maryland Rule, courts look to its plain text. To prevent illogical or nonsensical interpretations of the rule, courts analyze the rule in its entirety, rather than independently construing its sub-parts. If the words of the rule are plain and unambiguous, the inquiry ordinarily ceases and courts need not venture outside the text of the rule.

Governments: Courts: Authority to Adjudicate
For purposes of construing a Maryland Rule, the venerable plain meaning principle does not mandate exclusion of other persuasive sources that lie outside the text of the rule. Looking to relevant case law and appropriate secondary authority enables courts to place the rule in question in the proper context.

Criminal Law & Procedure: Discovery & Inspection: Discovery by the Government
Criminal Law & Procedure: Pretrial Motions: Suppression of Evidence
As a predicate to the defendant's obligation to file a motion to suppress, the State must comply with the Maryland Rule's mandated pretrial disclosure of documents or items and information.

Criminal Law & Procedure: Discovery & Inspection: Discovery by Defendant
Criminal Law & Procedure: Discovery & Inspection: Discovery by the Government
Upon request of the defendant, the State must furnish a defendant's apparently available recorded statement made to a State agent, even if the State intends only to use the content of the recorded statement at trial, irrespective of whether the physical recording itself is intended for use as direct evidence at trial.

Criminal Law & Procedure: Discovery & Inspection: Discovery Misconduct
The State should err on the side of disclosure in any case where there reasonably exists the possibility that the statement was unlawfully obtained. This word of caution is issued because if the statement was discoverable and wasn't provided, the trial court may, within its discretion, impose a sanction for the discovery violation under Md. R. Crim. Causes 4-263(i).
 
Criminal Law & Procedure: Discovery & Inspection: Discovery Misconduct
See Md. R. Crim. Causes 4-263(i).

Criminal Law & Procedure: Appeals: Standards of Review: Harmless & Invited Errors
When an appellant, in a criminal case, establishes error, unless a reviewing court, upon its own independent review of the record, is able to declare a belief, beyond a reasonable doubt, that the error in no way influenced the verdict, such error cannot be deemed harmless and a reversal is mandated. Such reviewing court must thus be satisfied that there is no reasonable possibility that the evidence complained of--whether erroneously admitted or excluded--may have contributed to the rendition of the guilty verdict.

Criminal Law & Procedure: Discovery & Inspection: Discovery by Defendant
Criminal Law & Procedure: Discovery & Inspection: Discovery by the Government
Criminal Law & Procedure: Pretrial Motions: Suppression of Evidence
The State's fulfillment of Md. R. Crim. Causes 4-263 necessarily triggers the defense's obligation to seek suppression of evidence unlawfully obtained.

Criminal Law & Procedure: Pretrial Motions: Suppression of Evidence
Admissions, statements, or confessions that might have been unlawfully obtained are subject to a pretrial motion to suppress under Md. R. Crim. Causes 4-252(a)(4).

Criminal Law & Procedure: Pretrial Motions
Under Md. R. Crim. Causes 4-252 an allegation that an admission, statement, or confession was unlawfully obtained must be raised by pretrial motion or it is waived.

Criminal Law & Procedure: Discovery & Inspection
Criminal Law & Procedure: Pretrial Motions
Oral statements which must be disclosed under Md. R. Crim. Causes 4-263 are those statements which might possibly have been unlawfully obtained and suppressible under Md. R. Crim. Causes 4-252.

COUNSEL: ARGUED BY Peter F. Rose, Assistant Public Defender (Stephen E. Harris, Public Defender, on brief) of Baltimore, MD. ARGUED BY: Julia Doyle Bernhardt, Assistant Public Defender (Stephen E. Harris, Public Defender, on brief) of Baltimore, MD FOR PETITIONER.
 
ARGUED BY Steven L. Holcomb, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General of Maryland, on brief) of Baltimore, MD FOR RESPONDENT.

JUDGES: ARGUED BEFORE Bell, C. J.; Eldridge, Rodowsky, Raker, Wilner, Cathell, and Harrell, JJ. Opinion by Harrell, J.

OPINIONBY: Harrell

OPINION: [**797] [*253]
 
Opinion by Harrell, J.
 
   Larry Marcus Johnson, Petitioner, was convicted in the Circuit Court for Anne Arundel County of fourteen counts of theft over $300. He appealed to the Court of Special Appeals, arguing that the Circuit Court erred because it refused to compel the State to provide the defense with a copy of Petitioner's pre-trial recorded [**798] statement n1 and yet permitted the State, over Petitioner's objection, to adduce at trial the testimony of one of Petitioner's police interrogators concerning his version of the inculpatory content of that statement. The intermediate appellate court rejected Petitioner's argument and affirmed his convictions. We granted certiorari n2 to consider the following questions[***2] posed by Petitioner:

n1 There is ambiguity in the record whether more than one recorded statement exists and whether the statement (or statements) were audio or video recorded, or both. Most of the references mention a videotaped statement. We have adopted for the purposes of this opinion the characterization of the item or items in question as a "recorded statement." 

n2 Johnson v. State, 356 Md. 495, 740 A.2d 612 (1999).

   I. Whether the State is required to provide to the defense the defendant's recorded statement where, instead of introducing the recording at trial, it adduces the substance of the statement through the testimony of a police officer.
 
II. Whether, where the State has failed to provide to the defense the defendant's recorded statement, it may introduce the substance of that statement at trial through a police officer.

   III. Whether the Court of Special Appeals erred in this case in holding that the admission of the oral summary at trial was not error under Maryland Rules [***3]5-1002 and 5-1004.
 
We hold that the State was required to furnish the defense with Petitioner's recorded statement under Maryland Rule 4-263(b)(2)(A) and reverse. We need not, and do not, decide any other aspect of Petitioner's questions. [*254]

   I.

   On the evening of 2 August 1996, Officers Lewis J. Mangione, Jr. and Zachary Miller, of the Bel Air Police Department, responded to a call for a burglary at a house on Old Orchard Road in Harford County. Officer Mangione chased one suspect running from the house. During that pursuit, Officer Mangione noticed a vehicle speeding away with its headlights off and signaled Officer Miller to stop the car. n3

 n3 Officer Mangione later determined that there had been a burglary at the residence.

   Officer Miller pursued the vehicle, stopped it, and arrested Petitioner, who was the driver and sole occupant of the vehicle. According to Officer Miller, Petitioner was visibly nervous and explained his unusual operation of the motor vehicle by stating that he became concerned when[***4] he realized he was driving the wrong way on Rock Spring Road. n4 On the backseat of the vehicle, Officer Miller observed a large knife, screwdriver, and various household goods. These items were subsequently inventoried at the Bel Air Police Department and identified as stolen property taken from various locations in Harford County and elsewhere.

n4 Later, Petitioner attributed his attempt to operate the vehicle in an elusive manner to his fear that the police would discover that he had marijuana with him on that occasion.

   Corporal John Baker interviewed Petitioner on 2 August 1996, advised him of his Miranda n5 rights, and obtained his signature on an advice-of-rights form. It is not entirely clear from the record whether this interrogation was recorded. Corporal Baker conducted a second interrogation in the presence of Petitioner's then counsel, n6 [**799] on 14 August 1996, at the [*255] Harford County Sheriff's Department. The second interrogation apparently was videotaped. Subsequently, Corporal Baker obtained warrants[***5] to search Petitioner's home, a bedroom in Petitioner's parents' home where he sometimes stayed, and his booth at Pilgrim's Variety, a flea market. The searches resulted in the seizure of hundreds of stolen items. Petitioner was ultimately charged in the instant case on 23 January 1998 by criminal information in the Circuit Court for Anne Arundel County with first-degree burglary and fourteen counts of theft over $300 as to those recovered items taken from Anne Arundel County victims.

n5 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). 

n6 The Court of Special Appeals noted that Petitioner retained new counsel, after the interrogations, to represent him at the pre-trial hearings and the bench trial in the instant case in Anne Arundel County. In fact, Petitioner was represented by attorneys from the Public Defender's Office for Anne Arundel County in this case. Presumably, Petitioner's counsel present at the 14 August 1996 interrogation in Harford County (Greg McCurdy, according to Corporal Baker's testimony) was not from the Anne Arundel County's Public Defender's Office as Petitioner had not been charged with any crimes in Anne Arundel County at the time of his interrogations.

[***6]

   Before trial, Petitioner's counsel requested discovery of a copy of the State's recording of Petitioner's statement. Petitioner's counsel reasoned that the recorded statement was vital for possible suppression purposes n7 and to prepare cross-examination of Corporal Baker should he testify, as expected. [*256]The following courtroom exchange on 24 July 1998 captures the ebb-and-flow on this subject:

n7 No written, evidence-specific, pre-trial motion to suppress was filed in this case, although, apparently according to a local custom or practice, the document entering the appearance of Petitioner's counsel who ultimately represented him at the pre-trial hearings and trial, filed on 11 March 1998, included a very terse and generic incorporation by reference of, among other things, a form "Motion To Suppress Evidence . . . on file with the Clerk of the Court and the Office of the State's Attorney . . . ." The title of this document, "Appearance," gives no indication of the above included language. No copy of the referenced motion is included in the record. Moreover, it is apparent that such an omnibus motion to suppress could not have identified any specific documents or information that may have been sought to be suppressed in the present case.

   The trial was scheduled to commence on 21 July 1998. Petitioner's counsel requested a postponement on the morning of 21 July, at which time the trial was rescheduled for 24 July 1998. Petitioner's counsel then proceeded to make a number of oral motions on 21 July, including one seeking compelled disclosure of Petitioner's recorded statement. Oral argument on that point continued on 24 July 1998. On 24 July 1998, after denial of Petitioner's motions, a bench trial commenced, continuing on 28 July, and, concluding on 4 August 1998.

[***7]

   [DEFENDANT'S COUNSEL]: Well, Your Honor, there are motions on the table with respect to the warrants, but if I can address one other issue. I made several requests of the State for access to the videotape statements of my client.

   The State had indicated that they were not planning to use my client's statements against him in the case in chief. However, there is still an issue as to whether or not the statements resulted in physical evidence being obtained.

   I can't confidently suggest to my client whether we should waive that issue or litigate it, without having access to that videotape to see what my client said. I don't believe that I can confidently cross-examine any State's witness prior to having access to the videotape or the audiotapes in question.

   Police reports from Harford County clearly indicate that the statement was in fact videotaped and/or audiotaped and it is my understanding that the Harford County Sheriff Department or the Bel Air Police Department has yet to deliver that tape to [the] State's Attorney.

   THE COURT: If they are not using statements of your client in their case in chief, what right do you have to it at this point? I am missing your point.

   [DEFENDANT'S[***8] COUNSEL]: I am under the impression, Your Honor, that they could also use his statements to possibly suppress any specific reference, any items I would like discovered as a result of the statements he made. Or if his statements won't be used to inculpate himself with respect to an admission or confession, those statements certainly did lead to the acquisition of physical evidence. Again, it is my impression, Your Honor, that I am entitled to seek suppression of that physical evidence through that manner.

   [**800] THE COURT: What is the illegality? What is the basis for the illegality? [*257]

   [DEFENDANT'S COUNSEL]: It would basically be a Miranda violation, Your Honor, and possibly a voluntary suspicion [sic].

   THE COURT: State?

   [THE STATE]: Your Honor, some of what was said I believe is accurate and some is inaccurate. There were statements made. At a certain point in time there was an interrogation done by the Bel Air Police in conjunction with the Harford County Sheriff's Department.

   The Defendant did make several statements in reference to his participation in some things. I think it is inaccurate to say that certain statements would not be used as part of the State's evidence. I think[***9] several of the statements would not be relevant to the State's case and would not be used of course.

   However, the sum and substance of what those statements were, have in fact been provided to [Petitioner's counsel]. There does -- on Tuesday I said there appeared to be, I can now say with confidence that I have ascertained that there was a videotape done of this interrogation. A videotape we believe exists.

   I have been in contact with the Harford County Sheriff's Office; they would have possession of it. They have individuals that are trying to find it. As recently as yesterday evening, I spoke with a Lieutenant Sandaman up there at Harford County who reasonably was confident that they could find it; they simply don't have it yet.

   Certainly, in an ideal world we would have had that. It should be provided. I certainly agree that the Defense would be entitled to use it, or at least to inspect it if we were to use that particular piece of evidence. I think the significance here are the statements themselves. The sum and substance of the statements have been given to them. All the videotape is going to show is him saying it, as opposed to somebody else saying he said it.
 
   THE COURT: [***10] All right. You answered my question. Thank you. [*258]

   [THE STATE]: Okay.

   THE COURT: Anything else, [Petitioner's counsel]?

   [DEFENDANT'S COUNSEL]: Well, subsequent to that issue, Your Honor, again we - 

   THE COURT: Under the rules of discovery the State is required to give you the substance of any oral statements. The proffers have been given to you. I don't understand the purpose for the hearing.

   [DEFENDANT'S COUNSEL]: The purpose of the hearing, Your Honor, would be that I have the substance of the statements. I believe the statements are possibly suppressible in themselves. As such, I believe this investigation may have gone any further. I am not aware of any independent investigation that was in effect at the time Mr. Johnson gave statements that might have led the State to any number of -- might have led the State to discover his alleged complicity in any event.

   For that reason, Your Honor, I believe that I am entitled to review those videotapes or that audiotapes [sic].

   THE COURT: I don't understand what the issue is. I really don't. You have got the statements. You know what he said. If you are saying that somehow [ ] Miranda was violated, fine. We will have a[***11] hearing on that. If you are saying that he was coerced into giving a statement, fine. We will have a hearing on that. I want to know what your position is.

   [DEFENDANT'S COUNSEL]: Based on what my client has told me, I dispute the accuracy of the substance of the statements that have been provided to me.

   [**801] THE COURT: Well, that can be tested through cross-examination, the accuracy of the statements.

   [DEFENDANT'S COUNSEL]: Again, I feel that I am handicapped by not having access to the tapes prior to the cross-examination. Again, I believe that -- I understand what the Court is saying and I defer to the Court. But, for the record, I believe I should be entitled to access to the [*259] videotape prior to such time that I get to cross-examine any officer that was involved in taking those statements.

   THE COURT: Well, I don't think at this point of the trial -- well, we haven't even started the trial yet, we are just still on motions. I don't understand any basis that you have proffered for any preliminary motion with regard to statements. So your request for a hearing on that is denied, based on what you have told me.

   At the bench trial, before Corporal Baker was allowed to testify, Petitioner's[***12] counsel expressed his belief that the "State has agreed, has been asked not to use any of Mr. Johnson's statements in their case in chief, Your honor." The State responded:

   Your Honor, we have touched on this several times and he keeps mentioning that and I indicated even earlier this morning that there was not an agreement that we would not use statements in this case in chief. I said that there were certain statements that he made that weren't relevant to this case and certainly would not be used on that basis.

   I don't know where the belief that we would not use statements in the case in chief came from; each time he has reiterated that view, Your Honor, I have reiterated that that was not the case.
 
Petitioner's counsel retorted:

   It is my understanding, Your Honor, that we did waive motions on the Miranda issue because I believe the State did tender to me the statements that they were not going to use of my client's. Inculpatory statements in their case in chief. It was with that understanding that I didn't pursue the Miranda issue at the motions hearing.
 
The following colloquy ensued between the trial judge and Petitioner's counsel:

   THE COURT: As I recall it, [***13] as I recall that issue when it came up, I posed a question of whether or not you -- well, not whether or not, but suggesting to you that you could cross-examine any witness concerning those statements. That is what I thought you were going to do. But, if they [*260] say they want to use his statements, why can't they use his statements? What law dictates that they can't?

   [DEFENDANT'S COUNSEL]: No, Your Honor. I suppose there is case law. I waived to get a - - I permanently waived the Miranda issue at the motions hearing, based on the premise that they weren't going to use those statements - -

   THE COURT: This whole case is premised on misunderstandings. If you want to cross-examine the witnesses, you have every right to do it. I am going to overrule the objection.
 
Corporal John Baker was then permitted to explain his version of the interrogations. As to the first interrogation on 2 August, Corporal Baker testified as follows:

   I conducted an interview with Mr. Johnson and asked him if he would state what had occurred that evening. He stated that he and his nephew had been sitting at the parking lot at Klein's, which is a superthrift, on North Main Street in Bel Air.

   Then some[***14] juveniles on bicycles started harassing them. He said his nephew became agitated, exited the vehicle and started chasing these individuals on foot. Mr. Johnson stated he was driving around looking for his nephew when he observed the police in the area of Howard Street and Old Orchard Road and then fled the area with his lights out.

   [**802] I asked him about the other things that had occurred during the time when he was being stopped and he stated that he was keeping his lights out so that he could retrieve some marijuana that he had hidden in his vehicle and tried to throw it out the window so he wouldn't be caught with it, but instead he stuffed it in the console.

   He stated that he wanted to come clean with what he had done and to try and help the police, but only after he had talked with an attorney and then invoked his right. At that time all questioning ceased with Mr. Johnson.

   Regarding the 14 August interrogation of Johnson, he testified, in pertinent part:

   [*261]

   [THE STATE]: Who was present?

   [CORPORAL BAKER]: There was myself, Detective Agnor, Farrell, Smith would be from the Harford County Sheriff's Department. Agnor and Farrell would be from the Newark, Delaware Police Department. [***15] There was Mr. Johnson and his [then] attorney, [ ].

   [THE STATE]: Prior to the interview was Mr. Johnson read his Miranda rights?

   [CORPORAL BAKER]: He was advised of his Miranda rights by [ ], his attorney. He was again issued a Miranda by police.

   [THE STATE]: Did he affirmatively waive his Miranda rights to you?

   [CORPORAL BAKER]: Yes, sir, he did.

   [THE STATE]: How was that done?

   [CORPORAL BAKER]: He conferred with his attorney and after conferring with his attorney he agreed to be interviewed by all officers that were there, involved in this, and to tell what he knew in reference to the burglaries and what his involvement was.

   [THE STATE]: What, if anything, did Mr. Johnson state to you during that interview?

   [CORPORAL BAKER]: At 1036 hours that morning he was interviewed by myself and Detective Smith of the Sheriff's Department at the Harford County Sheriff's Department. He stated that he mostly acted as a fence for his nephew, Robert Mark Rinkowitz.

   He referred to him always as Mark. He stated that Mark would commit these burglaries, bring the property to him to sell. He stated that he would sell some of these items at a flea market[***16] in Aberdeen and some he would take to other types of sales or other places where items could be bought and sold.

   Also he said that Mark had four people working for him. All he could think of were a couple of first names. He stated that in reference to what we arrested on, on the 2nd of August, 1996, he drove Mark around the neighborhood of [*262]Old Orchard Road. He then parked on the parking lot of Klein's Superthrift.
 
   Petitioner's defense at trial was that his nephew (Mr. Rinkowitz), who had stayed at Petitioner's parents' home and also worked at the Pilgrim's Variety flea market, was the guilty party. Marcus Johnson, Petitioner's father, testified that Rinkowitz maintained a separate booth at the flea market that was across the aisle from Petitioner's booth. During the execution of the warrant, officers took items from both booths. He also testified that Rinkowitz had been living in his home and storing goods in his basement, but at the time of the search he was staying elsewhere and stopped by two or three times per week. Petitioner's father stated that his son stayed at his parents' house "very seldom."

   The trial judge found Petitioner guilty of fourteen counts of theft over $300. [***17] On 2 October 1998, the court imposed a sentence of fifteen years' imprisonment for the conviction of theft over $300 under count 2 of the charging document, to be served consecutive to a sentence imposed in the Circuit Court for Harford County, and concurrent sentences of fifteen years' imprisonment each for the remaining convictions, [**803] the latter suspended in favor of five years' probation upon release.

   The Court of Special Appeals affirmed the judgment, holding that the trial court did not err when it denied defense counsel's request for a copy of Petitioner's recorded statement. The court explained that the defense was not entitled to a copy of the recording because the substance of the content of Petitioner's recorded statement had been provided, and furthermore, the State did not offer the actual recording as evidence at trial. The court reasoned that:

   The substance of appellant's statements during the interviews was provided to appellant's counsel, pursuant to Rule 4-263(a)(2). Appellant nevertheless insists that the State intended to use his recorded statement at trial and, thus, he was entitled to view the videotape under Rule 4-263(b)(2). To the contrary, it is undisputed[***18] that the State did not intend to use the tape . . . . Moreover, the State did not use [*263] the recorded statement at the trial. Rule 4-263 (b)(2) is applicable only when "the State intends to use" a statement made by appellant. The statement was not used; consequently, Rule 4-263(b)(2) was not applicable.

   II. n8

n8 Because the gravamen of Petitioner's appellate argument is, in part, that he was unable to make (or lulled into not making) an appropriate motion to suppress as to the statement based on the State's representation that it did not intend to use the statement at trial, we consider our analysis here to be directed at a discovery ruling, rather than a suppression matter. Accordingly, we are not limited in our consideration of the record below, as ordinarily would be the case were we considering a suppression ruling. See Riddick v. State, 319 Md. 180, 183, 571 A.2d 1239, 1240 (1990) ("When the question of the dishonor of a constitutional right arises by the denial of a motion to suppress, the relevant facts which we consider 'are limited to those produced at the suppression hearing'") (citing Simpler v. State, 318 Md. 311, 312, 568 A.2d 22, 22 (1990)). See also Trusty v. State, 308 Md. 658, 670-71, 521 A.2d 749, 755 (1987).

[***19]

   Petitioner contends that the trial court's ruling denying him the right to obtain his recorded statement violated Maryland Rule 4-263(b)(2)(A). n9 He argues that the Circuit Court should have required disclosure of the recorded statement because the State intended to use the content of the statement at trial through the testimony of Corporal Baker, one of his interrogators. He urges us to enforce the plain meaning of Maryland Rule 4-263(b)(2)(A) to require the State to furnish a copy of the recorded statement, not merely the substance of the content of the statement. Petitioner argues that, without the recorded statement, he was unable to determine whether the statement was lawfully obtained or to prepare for cross-examination and his defense.

n9 Petitioner also argues that the Circuit Court should have required disclosure of the recorded statement under Maryland Rule 4-263(a)(2). We find it unnecessary to address that issue in light of our holding regarding Md. Rule 4-263(b)(2)(A).

   The State argues that it[***20] provided the discoverable information required to be disclosed by the rule. It states: [*264]

   The State complied with the [rule.] . . . [ ] [Because] [ ] the State did not intend to use the video-recorded statement, the State was not required to produce that recorded statement pursuant to Rule 4-263(b)(2)(A); and, [ ] by providing the substance of Johnson's oral statement obtained on August 14, 1996, the State complied with Rule 4-263(b)(2)(B).
 
Furthermore, the State asserts that the Court of Special Appeals was correct in its attempted distinction for discovery purposes between the videotaped statement as a physical item and the substance of the content of that statement, and then pointing out that only the latter was introduced in evidence through the testimony of Corporal Baker.

   A.

   As to criminal cases, Maryland Rule 4-263(b)(2) provides, in pertinent part:

   Rule 4-263. Discovery in circuit court.

   [**804] * * * * *

   (b) Disclosure upon Request. Upon request of the defendant, the State's Attorney shall:

    * * * * *

   (2) Statements of the defendant. As to all statements made by the defendant to a State agent that the State intends to use at a hearing or trial, furnish to [***21] the defendant, but not file unless the court so orders: (A) a copy of each written or recorded statement, and (B) the substance of each oral statement and a copy of all reports of each oral statement;

   With respect to the interpretation of the Maryland Rules, this Court has stated that, "the canons and principles which we follow in construing statutes apply equally to an interpretation of our rules." State v. Romulus, 315 Md. 526, 533, 555 A.2d 494, 497 (1989). In order to effectuate the purpose and objectives of the rule, we look to its plain text.  See Adamson v. Correctional Medical Serv., Inc., 359 Md. 238, 266, 753 A.2d 501 (2000); Huffman v. State, 356 Md. 622, 628, [*265] 741 A.2d 1088, 1091 (1999). To prevent illogical or nonsensical interpretations of a rule, we analyze the rule in its entirety, rather than independently construing its sub-parts.  See Marsheck v. Board of Trustees of the Fire & Police Employees' Retirement System of the City of Baltimore, 358 Md. 393, 403, 749 A.2d 774, 779 (2000). If the words of the rule are plain and unambiguous, our inquiry ordinarily[***22] ceases and we need not venture outside the text of the rule. See Adamson, slip op. at 10; Marsheck, 358 Md. at 402-03, 749 A.2d at 779; Huffman, 356 Md. at 628, 741 A.2d at 1091.

   The venerable plain meaning principle, central to our analysis, does not, however, mandate exclusion of other persuasive sources that lie outside the text of the rule. See Adamson, slip op. at 11; Marsheck, 358 Md. at 403, 749 A.2d at 779. We have often noted that looking to relevant case law and appropriate secondary authority enables us to place the rule in question in the proper context. See Adamson, slip op. at 11; Marsheck, 358 Md. at 403, 749 A.2d at 779. 

   Specific to the rule at issue here, we have noted that Maryland Rule 4-263 was derived from former Maryland Rule 741. See State v. Brown, 327 Md. 81, 90, 607 A.2d 923, 927 (1992). Thus, our case law interpreting the same language in former Rule 741(b)(2) as appears in Rule 4-263(b)(2) is instructive here. See id.

   The scope of pretrial disclosure mandated by Maryland Rule 4-263 must be determined in light of the underlying policies of the rule. [***23] See id. See also, Baynor v. State, 355 Md. 726, 735-36, 736 A.2d 325, 330 (1999); Hutchins v. State, 339 Md. 466, 473, 663 A.2d 1281, 1285 (1995); White v. State, 300 Md. 719, 734, 481 A.2d 201, 208 (1984). We have explained that the rule serves dual purposes. In terms of fundamental fairness, broad discovery aids the defendant in preparing his or her defense and protects him or her from surprise at trial. See Hutchins, 339 Md. at 473, 663 A.2d at 1285. Maryland Rule 4-263 is also designed "to force the [*266] defendant to file certain motions before trial, including a motion to suppress an unlawfully obtained statement." White, 300 Md. at 734, 481 A.2d at 208. As a predicate to the defendant's obligation to file a motion to suppress, the State must comply with the Rule's mandated pretrial disclosure of documents or items and information. In Warrick v. State, 302 Md. 162, 169, 486 A.2d 189, 193 (1985), we noted that "the defendant cannot be expected to file such motions prior to trial unless he can obtain the necessary information to prepare for the suppression or exclusion hearing," [***24](citing the Joint Committee of the Maryland Judicial Conference and of the Maryland State Bar Association, Report and Recommendations to Implement the American [**805] Bar Association's Standards for Criminal Justice at 26 (1974)).

   B.

   A plain meaning reading of Maryland Rule 4-263(b)(2)(A) answers the threshold question in this case. There is no doubt that Petitioner's counsel made pre-trial requests to receive a copy of his client's recorded statement, in accordance with the Rule. The State did not provide the recorded statement, yet the alleged substance of the content of that statement was subsequently introduced by the State at trial, over objection, through Corporal Baker's testimony. The State attempts to rationalize its non-observance of the Rule by countering that it did not intend to use or play the actual recording itself at trial, but rather intended only that Corporal Baker testify as to his recollection of the content (or a summary) of what Petitioner said in the statement. The State claims that using the "statement" within the meaning of Maryland Rule 4-263(b)(2), thus triggering any obligation to provide the recording to a defendant before trial, means, in these circumstances, [***25]playing the tape at trial. This reasoning is meritless.

   That the State used Petitioner's recorded statement against him through the testimony of Corporal Baker is beyond cavil. Moreover, as stated supra, Corporal Baker's testimony was clearly inculpatory. The State made it clear at the pretrial [*267] motions hearing, and at trial before Corporal Baker testified, that it intended to use a version of the content of Petitioner's statement during its case in chief. Implementing that intent, the prosecutor asked Corporal Baker at trial what the Petitioner stated during the interrogations and Corporal Baker stated his recollection of what transpired. Necessarily, Corporal Baker's testimony was dependent on Petitioner's recorded statement.

   The State shall not be allowed so disingenuously to circumvent the pre-trial disclosure mandated by Rule 4-263(b)(2)(A) by the device of using a derivative version of Petitioner's statement through Corporal Baker's testimony. We hold that, upon request of the defendant, the State must furnish a defendant's apparently available recorded statement made to a State agent, even if the State intends only to use the content of the recorded statement at trial, [***26] irrespective of whether the physical recording itself is intended for use as direct evidence at trial. For us to hold otherwise would render Rule 4-263(b)(2)(A) a nullity.

   The State's argument that it provided the "substance" of Petitioner's oral statement, pursuant to Rule 4-263(b)(2)(B), does not relieve it of its companion obligation to produce the recorded statement under Rule 4-263(b)(2)(A). n10 [*268]Maryland Rule 4-263(b)(2) [**806] cannot be parsed as the State wishes. To allow the State to satisfy its discovery obligations under Rule 4-263(b)(2)(B), in lieu of Rule 4-263(b)(2)(A), would grant the State largely unchecked discretion to summarize, edit, or characterize the content of a defendant's recorded statement in any form it chooses. This violates the spirit and letter of discovery of a recorded statement as provided by the rule. When a recorded statement is available, the "substance" of the oral delivery of the statement, as determined by the State, may not substitute for, or even be able to describe, the nuances, qualities, or manner in which the interrogation was conducted. A principal purpose of the rule is to provide "for the discovery of statements which might possibly have been[***27] unlawfully obtained." Brown , 327 Md. at 92, 607 A.2d at 928. Mere production of the "substance" of a defendant's recorded statement risks thwarting defense counsel's ability to determine the lawfulness of the interrogation or the evidence that stems from it. n11

n10 Respondent relies on our decision in Baynor to argue that providing the defense with the substance of Johnson's statement amounts to the necessary "simple but fair statement of relevant information" regarding the acquisition of the defendant's statement.  Baynor, 355 Md. at 736, 736 A.2d at 330, citing Warrick v. State, 302 Md. 162, 171, 486 A.2d 189, 193 (1985). The State's reliance on Baynor is misplaced. The specific issue in Baynor stemmed from the petitioner's assertion that the State was required to provide a verbatim transcript of the questions posed to the petitioner and the answers he provided in an unrecorded statement, which included an exculpatory comment, made by the petitioner prior to the recording of his statement. See Baynor, 355 Md. at 737, 736 A.2d at 330-31. We were satisfied, based on the specific facts in Baynor, that the information the petitioner requested was not relevant to the statement the State intended to use at trial, within the meaning of Maryland Rule 4-263(a)(2)(B). Our decision in Baynor was resolved by integrating the issues of the relevance of the statement at issue with whether the State actually intended to use the statement. Incidentally, in Baynor, we held that under Maryland Rule 4-263(a)(2), the State was not required to disclose the entire interrogation of the defendant when some questions were asked before the tape recorder was turned on.  Baynor, 355 Md. at 738-40, 736 A.2d at 331-2. In Baynor, the State did provide the petitioner with his recorded statement which it intended to use a trial. Contrary to the facts in Baynor, the State in the present case did not furnish the actual, existing recorded statement.

[***28] 

n11 We note again that Petitioner's trial counsel was not present when the statement was recorded. Although Petitioner's prior attorney (whose appearance was not entered in this case) apparently was present for the 14 August 1996 interrogation, even he was not there when the 2 August statement was given.

   We have previously issued a warning regarding the potential consequences of failing to disclose a defendant's statement:

   The State should err on the side of disclosure in any case where there reasonably exists the possibility that the statement was unlawfully obtained. This word of caution is issued because if the statement was discoverable and wasn't provided, the trial court may, within its discretion, impose a [*269] sanction for the discovery violation under 4-263(i). Subsection (i) authorizes the trial judge to order the violating party "to permit the discovery of the matters not previously disclosed, strike the testimony to which the undisclosed matter relates, grant a reasonable continuance, prohibit the party from introducing in evidence the matter not disclosed, grant a mistrial, or enter [***29]any other order appropriate under the circumstances." Thus, the State should consider the possible repercussions of failing to disclose a statement that the defendant had reasonable grounds to argue was subject to a pretrial suppression motion.
 
Brown, 327 Md. at 95, 607 A.2d at 930. This warning is even more applicable when a recorded statement, given to a State agent, appears available.

   C.

   We evaluate whether the State's failure to produce the recorded statement was harmless error under the following standard:

   When an appellant, in a criminal case, establishes error, unless a reviewing court, upon its own independent review of the record, is able to declare a belief, beyond a reasonable doubt, that the error in no way influenced the verdict, such error cannot be deemed 'harmless' and a reversal is mandated. Such reviewing court must thus be satisfied that there is no reasonable possibility that the evidence complained of--whether erroneously admitted or excluded--may have contributed to the rendition of the guilty verdict. (Footnote omitted).
 
Hutchins, 339 Md. at 475-76, 663 A.2d at 1286 (citing Dorsey v. State, 276 Md. 638, 659, 350 A.2d 665, 678 (1976)).[***30]

   We have no difficulty concluding that Petitioner was prejudiced by the State's failure to produce the recorded statement prior to Corporal Baker's testimony. "Common sense and judicial experience teach that a defendant's prior statement in the possession of the government may be the single most crucial factor in the defendant's preparation for [*270] trial." United States v. Percevault, 490 F.2d 126, 129-30 [**807] (2d Cir. 1974). The wisdom of this observation is proven true again in the present case.

   Without providing Petitioner with the recorded statement, the dual purposes of Rule 4-263 could not be fulfilled here. As Petitioner's trial counsel explained to the trial court, without the recorded statement, Petitioner was unable to prepare for his defense, i.e., to effectively cross-examine or impeach the State's witness or to protect himself from surprise. See Hutchins, 339 Md. at 473, 663 A.2d at 1285. We noted in Carr v. State, 284 Md. 455, 460-61, 397 A.2d 606, 608-09 (1979):

   Every experienced trial judge and trial lawyer knows the value for impeaching purposes of statements of the witness recording the events before time dulls treacherous[***31] memory. Flat contradiction between the witness'[s] testimony and the version of the events given in his reports is not the only test of inconsistency. The omission from the reports of facts related at the trial, or a contrast in emphasis upon the same facts, even a different order of treatment, are also relevant to the cross-examining process of testing the credibility of a witness'[s] trial testimony.
 
(citing Jencks v. United States, 353 U.S. 657, 667, 77 S. Ct. 1007, 1013, 1 L. Ed. 2d 1103, 1111 (1957)). Although the issues and facts in Carr are different from this case, we think the observations in Carr as to the value of an available recorded statement to a defense counsel are worth noting here. The determination of what material contained on the recording is useful to the defense is best left to defense counsel and his or her client. See Leonard v. State, 46 Md. App. 631, 638-39, 421 A.2d 85, 89 (1980).

   Furthermore, Petitioner's trial counsel was unable to determine if an issue existed as to whether his client's statement was obtained unlawfully. The effect was that he could not maintain an evidence-specific motion to suppress [***32]without viewing the recorded statement. See Warrick, 302 Md. at 169, 486 A.2d at 192-93. In Brown, we explained that the State's fulfillment of Maryland Rule 4-263 necessarily triggers the [*271] defense's obligation to seek suppression of evidence unlawfully obtained. We opined:

   Admissions, statements, or confessions that might have been unlawfully obtained are subject to a pretrial motion to suppress under [Maryland] Rule 4-252(a)(4). Under Rule 4-252 an allegation that an admission, statement, or confession was unlawfully obtained must be raised by pretrial motion or it is waived. In limiting by rule required State disclosure to statements made to State agents, and in excluding by decision statements made to State agents during the commission of the crime, this Court has, as have the federal courts, made it clear that oral statements which must be disclosed under 4-263 are those statements which might possibly have been unlawfully obtained and suppressible under 4-252.
 
Brown, 327 Md. at 94, 607 A.2d at 929.

   This Court is not satisfied, beyond a reasonable doubt, that the failure to furnish the recorded statement did not contribute to the rendition[***33] of a guilty verdict in the present case. We have no way of knowing, based on the record, what weight the trial judge gave to Corporal Baker's testimony as to the content of the recorded statement. Although we imagine the significance of that testimony could be considerable, the trial judge's articulated findings do not specify what weight he gave it. n12

n12 The trial judge explained his judgment as follows:

   . . . I am satisfied, after listening to the argument of the Assistant State's Attorney and reviewing all of the evidence that you were the thief in each and every one of these cases. I am satisfied through the stipulations and through the evidence that the amount taken was in excess of $300.

   Therefore, it is my judgment and verdict that you are guilty as to counts two through fifteen for the theft of this property having a value in excess of $300. There is an abundance of evidence here to support it and the reasonable inferences to be drawn from the evidence convinces me of your guilt.

 
[**808] JUDGMENT [***34]  OF THE COURT OF SPECIAL APPEALS REVERSED. CASE REMANDED TO THAT COURT WITH DIRECTIONS TO REVERSE THE JUDGMENT [*272] OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AND TO REMAND THE CASE TO THAT COURT FOR A NEW TRIAL. COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID BY RESPONDENT. 

INALEGWU OKWA, et ux. v. MICHAEL G. HARPER, et al. 
No. 129, September Term, 1999
 
COURT OF APPEALS OF MARYLAND
 
360 Md. 161; 757 A.2d 118; 2000 Md. LEXIS 456

 July  28, 2000, Filed

   SUBSEQUENT HISTORY: [***1] As Corrected August 14, 2000.

PRIOR HISTORY:  Appeal from the Circuit Court for  Anne Arundel  County pursuant to the Court of Special Appeals.  Case # C-1998-48982. Eugene M. Lerner, JUDGE.

DISPOSITION: JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY, AS TO MICHAEL G. HARPER, KIMBERLY POTTER, AND WILLIAM H. GERNERT, REVERSED. CASE REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS. COSTS TO BE PAID BY APPELLEES. 
CASE SUMMARY 

PROCEDURAL POSTURE:  Appellants, ticket-holder and wife, challenged order of Circuit Court for Anne Arundel County (Maryland) granting summary judgment, dismissing claims against appellees, police officers, including battery, false imprisonment, malicious prosecution, intentional emotional distress infliction, and violations of 42 U.S.C.S. §§ 1981, 1985, 42 U.S.C.S. § 1983, and Md. Const. Declaration of Rights art. XXIV. Appellate court issued certiorari writ.

OVERVIEW:  Appellants, ticket-holder and wife, challenged summary judgment dismissal favoring appellees, police officers, for alleged battery, false imprisonment, malicious prosecution, intentional emotional distress infliction, and violations of 42 U.S.C.S. §§ 1981, 1985, 42 U.S.C.S. § 1983, and Md. Const. Declaration of Rights art. XXIV, and seeking damages for consortium loss, and compensatory, and punitive damages. The appellate court issued certiorari writ. Since disputed material record facts could raise inferences of ill will or improper motive, and appellees had no legal authority to arrest, appellees' immunity did not apply, thereby warranting reversal on the battery, malicious prosecution, disorderly conduct, art. XXIV, false arrest, false imprisonment, and consortium loss claims. Appellants could bring § 1983 claim since the allegations focused on appellees' independent activities, and their qualified immunity defense applied only to individual capacity suits. Appellants could not recover punitive damages by summary judgment means.

OUTCOME:  Since disputed material record facts could raise inferences of ill will or improper motive, and appellees had no legal authority to arrest, appellees' immunity did not apply, thereby warranting reversal on battery, malicious prosecution, disorderly conduct, art. XXIV, false arrest, false imprisonment, and consortium loss claims. Appellants could bring § 1983 claim since allegations focused on appellees' independent activities.

CORE TERMS:  summary judgment, arrest, ticket, immunity, disorderly conduct, malice, arrested, police officers, personnel, terminal, counter, probable cause, malicious prosecution, qualified immunity, motion to dismiss, punitive damages, flight, matter of law, airport, deputies, state official, battery, false arrest, legal authority, individual capacity, airline, handcuffed, immune, crowd, Fourteenth Amendment

CORE CONCEPTS -  

Civil Procedure: Appeals: Reviewability: Preservation for Review
Md. R. App. Review, Ct. App. and Ct. Spec. App. 8-131(a) states that an appellate court will not decide any other issue, aside from subject matter jurisdiction, unless it plainly appears by the record that it has been raised in or decided by the trial court.

Civil Procedure: Appeals: Reviewability: Preservation for Review
If an appellate party does not point out to a trial court the correctable flaws in the form of an affidavit, the party waives this issue for purposes of appeal. Non-compliance in the affidavit with rule requirements as to form cannot be raised for the first time on appeal.

Civil Procedure: Pleading & Practice: Defenses, Objections & Demurrers: Motions to Dismiss
Civil Procedure: Summary Judgment: Supporting Papers & Affidavits
Civil Procedure: Summary Judgment: Burdens of Production & Proof
Pursuant to Md. R. Civ. P., Cir. Ct. 2-322(c), when a trial judge is presented with factual allegations beyond those contained in the complaint to support or oppose a motion to dismiss, and the trial judge does not exclude such matters, then the motion shall be treated as one for summary judgment.

Civil Procedure: Summary Judgment: Summary Judgment Standard
Civil Procedure: Appeals: Standards of Review: De Novo Review
A summary judgment motion is not a substitute for trial. Rather, it is used to dispose of cases when there is no genuine dispute of material fact, and the moving party is entitled to judgment as a matter of law. Md. R. Civ. P., Cir. Ct. 2-501(e). The standard for appellate review of a trial court's grant of summary judgment is whether the trial judge was legally correct in his or her rulings. In granting a motion for summary judgment, a trial judge may not resolve factual disputes, but, instead, is limited to ruling on matters of law.

Civil Procedure: Summary Judgment: Burdens of Production & Proof
Civil Procedure: Summary Judgment: Summary Judgment Standard
Summary judgment is generally inappropriate when matters such as knowledge, intent, and motive are at issue. If any inferences may be drawn from well-plead facts, a trial court must construe those inferences in the light most favorable to the non-moving party. The existence of a dispute as to some non-material fact will not defeat an otherwise properly supported motion for summary judgment, but if there is evidence upon which a jury could reasonably find for the non-moving party, or material facts are in dispute, a grant of summary judgment is improper.
 
Civil Procedure: Pleading & Practice: Defenses, Objections & Demurrers: Affirmative Defenses
Torts: Public Entity Liability: Immunity
Governments: State & Territorial Governments: Claims By & Against
The Maryland Tort Claims Act, Md. Code Ann. State Gov't § 12-105 (1984, 1999 Repl. Vol.), provides immunity to state personnel.

Civil Procedure: Pleading & Practice: Defenses, Objections & Demurrers: Affirmative Defenses
Torts: Public Entity Liability: Immunity
Governments: State & Territorial Governments: Claims By & Against
See Maryland Tort Claims Act, Md. Code Ann. State Gov't § 12-105 (1984, 1999 Repl. Vol.).

Civil Procedure: Pleading & Practice: Defenses, Objections & Demurrers: Affirmative Defenses
Torts: Public Entity Liability: Immunity
Governments: State & Territorial Governments: Claims By & Against
See Md. Code Ann. Cts. & Jud. Proc. § 5-522(b) (1973, 1998 Repl. Vol.).

Governments: State & Territorial Governments: Claims By & Against
Governments: State & Territorial Governments: Employees & Officials
The Maryland Tort Claims Act, Md. Code Ann. State Gov't § 12-101(a)(2)(i) (1984, 1999 Repl. Vol.) defines employees of the Maryland Transportation Authority as "state personnel."

Civil Procedure: Pleading & Practice: Defenses, Objections & Demurrers: Affirmative Defenses
Torts: Public Entity Liability: Immunity
Governments: State & Territorial Governments: Claims By & Against
Constitutional Law: Civil Rights Enforcement: Civil Rights Act of 1871
Constitutional Law: Civil Rights Enforcement: Official Immunities
Substantial distinctions exist between 42 U.S.C.S. § 1983 immunity, and immunity under the Maryland Tort Claims Act, Md. Code Ann. State Gov't § 12-105 (1984, 1999 Repl. Vol.). Malice has been eliminated effectively as a ground that would trump immunity in a § 1983 context, but the absence of malice is a legislatively mandated element for immunity under § 12-105, and Md. Code Ann. Cts. & Jud. Proc. § 5-522(b) (1973, 1998 Repl. Vol.).

Civil Procedure: Pleading & Practice: Defenses, Objections & Demurrers: Affirmative Defenses
Torts: Public Entity Liability: Immunity
Governments: State & Territorial Governments: Claims By & Against
The question that is raised for purposes of immunity, under the Maryland Tort Claims Act, Md. Code Ann. State Gov't § 12-105 (1984, 1999 Repl. Vol.), is whether a jury could reasonably find that officer conduct, given all of the existing and antecedent circumstances, is motivated by ill will, by an improper motive, or by an affirmative intent to injure. That motive or animus may exist even when the conduct is objectively reasonable. If it does, there is no immunity under § 12-105.

Civil Procedure: Pleading & Practice: Defenses, Objections & Demurrers: Affirmative Defenses
 Torts: Public Entity Liability: Immunity
Governments: State & Territorial Governments: Claims By & Against
In clarifying the meaning of the term "malice," courts state that, when someone, without provocation or cause, throws rocks at two other persons, he is obviously demonstrating ill will towards those persons. Wrestling another to the ground, pulling his hair, and hitting him on the face, again without cause or provocation, is certainly malicious conduct.

Civil Procedure: Summary Judgment: Summary Judgment Standard
The summary judgment process is not properly an opportunity for a trial court to give credence to certain facts and refuse to credit others. A trial judge is not permitted to weigh evidence in deciding a motion for summary judgment. In granting a motion for summary judgment, a trial court does not resolve factual disputes, but instead is limited to ruling as a matter of law.

Torts: Intentional Torts: Abuse of Process & Malicious Prosecution
A plaintiff must show the following to establish the tort of malicious prosecution: (1) a defendant institutes a criminal proceeding against a plaintiff, (2) the criminal proceeding is resolved in the plaintiff's favor, (3) the defendant did not have probable cause to institute the proceeding, and (4) the defendant acts with malice or a primary purpose other than bringing the plaintiff to justice.

Criminal Law & Procedure: Arrests: Probable Cause
Probable cause, as the term suggests, is a concept based on probability. It does not have a technical definition. Rather, the question of whether a law enforcement officer has probable cause to make a particular arrest is determined on factual and practical considerations of everyday life on which reasonable and prudent people act. Appellate courts define probable cause as facts and circumstances sufficient to warrant a prudent person in believing that a suspect commits or is committing an offense. To determine whether an officer has probable cause, under that conception, a reviewing court necessarily must relate the information known to the officer to the elements of the offense that the officer believes is being or has been committed. The officer, of course, must undertake the same analysis in determining, in the first instance, whether the person may lawfully be arrested.

Criminal Law & Procedure: Criminal Offenses: Miscellaneous Offenses: Disorderly Conduct & Disturbing the Peace
Disorderly conduct in public places is a statutory crime with common law roots. It is presently codified in Md. Ann. Code art. 27, § 123 (1957, 1996 Repl. Vol.).

Criminal Law & Procedure: Criminal Offenses: Miscellaneous Offenses: Disorderly Conduct & Disturbing the Peace
See Md. Ann. Code art. 27, § 123 (1957, 1996 Repl. Vol.).

Criminal Law & Procedure: Criminal Offenses: Miscellaneous Offenses: Disorderly Conduct & Disturbing the Peace
State appellate case law interprets Md. Ann. Code art. 27, § 123 (1957, 1996 Repl. Vol.) to prohibit the doing or saying, or both, of that which offends, disturbs, incites, or tends to incite, a number of people gathered in the same area.

 Criminal Law & Procedure: Criminal Offenses: Miscellaneous Offenses: Disorderly Conduct & Disturbing the Peace
There is a police command aspect to the crime of disorderly conduct. When a citizen disobeys a reasonable and lawful request by a police officer fairly made to prevent a disturbance to the public peace, that citizen has engaged in disorderly conduct. Under some circumstances, it is a violation to disobey a police officer's request to leave an area. The police officer's request, however, must be intended to prevent someone from inciting or offending others. It may not be an arbitrary directive.

Civil Procedure: Summary Judgment: Supporting Papers & Affidavits
Civil Procedure: Summary Judgment: Summary Judgment Standard
Implicit in a lower court's grant of summary judgment is a finding of the facts, viewed in the light most favorable to the non-movant, supporting the conclusion, as a matter of law.

Criminal Law & Procedure: Arrests: Probable Cause
Torts: Intentional Torts: Abuse of Process & Malicious Prosecution
State appellate case law has long held that the "malice" element of malicious prosecution may be inferred from a lack of probable cause.

Criminal Law & Procedure: Arrests: Probable Cause
Evidence: Procedural Considerations: Burdens of Proof, Presumptions & Inferences 
Torts: Damages: Punitive Damages
Torts: Intentional Torts: Abuse of Process & Malicious Prosecution
Torts: Damages: Compensatory Damages
Although an inference of malice based on a lack of probable cause is sufficient to support an award of compensatory damages, in order to receive a punitive damage award, a plaintiff must prove at trial that the defendant is moved by actual malice. This showing may not be made inferentially. For punitive damages to be allowable in malicious prosecution actions, a plaintiff must establish by clear and convincing evidence a defendant's wrongful or improper motive for instigating the prosecution.

Criminal Law & Procedure: Arrests: Probable Cause
Evidence: Procedural Considerations: Burdens of Proof, Presumptions & Inferences 
Torts: Damages: Punitive Damages
Torts: Negligence: Actions
In certain situations, police officers or an individual may lack probable cause to institute a criminal proceeding because they act negligently. An inference of malice, resulting from a negligent action, rather than one motivated by true ill will, cannot justify an award of punitive damages.

Criminal Law & Procedure: Arrests: Warrantless Arrest
Torts: Intentional Torts: False Arrest & Imprisonment
Although the intentional torts of false arrest and false imprisonment are separate causes of action, they share the same elements. For a successful cause of action based on false arrest or false imprisonment, a plaintiff must establish that the defendant deprived him or her of his or her liberty without consent and without legal justification. The test whether legal justification exists in a particular case has is judged by the principles applicable to the law of arrest. One of the many powers given to police officers is the authority, under certain circumstances, to make arrests without an arrest warrant.

Criminal Law & Procedure: Arrests: Warrantless Arrest
Criminal Law & Procedure: Criminal Offenses: Miscellaneous Offenses: Disorderly Conduct & Disturbing the Peace
See Md. Ann. Code art. 27, § 123 (1957, 1996 Repl. Vol.).

Governments: State & Territorial Governments: Claims By & Against
Constitutional Law: Civil Rights Enforcement: Civil Rights Act of 1871
Constitutional Law: Civil Rights Enforcement: Official Immunities
Under 42 U.S.C.S. § 1983, a plaintiff can recover damages when an individual, acting under the color of state law, transgresses a federally created right of a plaintiff. The text of the statute and cases analyzing § 1983 actions dictate that a defendant in a § 1983 action must be a "person." A state public official, sued in his or her official capacity, is not considered a "person" when a plaintiff brings a § 1983 action for monetary damages. The purpose behind placing state officials sued in their official capacities out of range of a § 1983 claim is that such a suit, in essence, is a suit against the state, which is not a permissible defendant in a § 1983 action. If a plaintiff prevails, the state treasury, not the state official personally, will be responsible for paying the assessed damages.

Governments: State & Territorial Governments: Claims By & Against
Constitutional Law: Civil Rights Enforcement: Civil Rights Act of 1871
Constitutional Law: Civil Rights Enforcement: Official Immunities
See 42 U.S.C.S. § 1983.

Governments: State & Territorial Governments: Claims By & Against
Governments: State & Territorial Governments: Employees & Officials
Constitutional Law: Civil Rights Enforcement: Civil Rights Act of 1871
Constitutional Law: Civil Rights Enforcement: Official Immunities
State officials literally are persons, but a suit against a state official, in his or her official capacity, is not a suit against the official but rather is a suit against the official's office. As such, it is no different from a suit against the state itself.

Governments: State & Territorial Governments: Employees & Officials
State officials may be sued in their individual or personal capacity. To establish personal liability upon a state official, a plaintiff must show that the official, while acting under the color of state law, caused the deprivation of a federally recognized right.

Governments: State & Territorial Governments: Employees & Officials
Governments: State & Territorial Governments: Police Power
A 42 U.S.C.S. § 1983 action against a government officer does not become an official capacity action simply because of the labels used by the parties. A reviewing court must look to the substance of the allegations and the progression of the claim to determine the precise nature of the action. If from either the factual bases of a plaintiff's § 1983 claim, or from the evidence offered by a plaintiff, it appears that the defendant is alleged to have implemented a formal policy or custom of the state, then the action may be classified as an official capacity action.

 Governments: State & Territorial Governments: Employees & Officials
Constitutional Law: Civil Rights Enforcement: Civil Rights Act of 1871
Constitutional Law: Civil Rights Enforcement: Official Immunities
When the state is the "moving force" behind a defendant's alleged conduct, the claim is one brought against the state official in their official capacity. When it appears, however, from the pleadings and the evidence offered, that a defendant is alleged to have acted on his own initiative, and not in conformity with state policy, the claim should be deemed independent in nature. A state official, who was not a 42 U.S.C.S. § 1983 "person" in her official capacity, could nonetheless be sued under § 1983 in her individual capacity on the basis of her official acts.

Governments: State & Territorial Governments: Claims By & Against
Governments: State & Territorial Governments: Employees & Officials
Constitutional Law: Civil Rights Enforcement: Official Immunities
When a plaintiff does not allege capacity specifically, a court must examine the nature of the plaintiff's claims, the relief sought, and the course of proceedings to determine whether a state official is being sued in a personal capacity. One factor indicating that suit is filed in such a manner might be a plaintiff's failure to allege that the defendant acted in accordance with a governmental policy or custom, or the lack of indicia of such a policy or custom on the face of the complaint. Another indication that suit is brought against a state actor personally may be a plaintiff's request for compensatory or punitive damages, since such relief is unavailable in official capacity suits.

Civil Procedure: Pleading & Practice: Defenses, Objections & Demurrers: Affirmative Defenses
Governments: State & Territorial Governments: Claims By & Against
Governments: State & Territorial Governments: Employees & Officials
The nature of any defenses raised in response to a complaint brought against a state official is a relevant factor. Because qualified immunity is available only in a personal capacity suit, the assertion of that defense indicates that a defendant interprets a plaintiff's action as being against him personally. Throughout, the underlying inquiry remains whether the plaintiff's intention to hold a defendant personally liable can be ascertained fairly.

Civil Procedure: Pleading & Practice: Defenses, Objections & Demurrers: Affirmative Defenses
Constitutional Law: Civil Rights Enforcement: Civil Rights Act of 1871
Constitutional Law: Civil Rights Enforcement: Official Immunities
The form and labels employed by the parties in respectively instituting and defending a 42 U.S.C.S. § 1983 action generally may not be used as the sole determinative factor in classifying the nature of a § 1983 action.

Civil Procedure: Pleading & Practice: Defenses, Objections & Demurrers: Affirmative Defenses
Qualified immunity may only be asserted as a defense to an individual capacity suit.

Civil Procedure: Pleading & Practice: Defenses, Objections & Demurrers: Affirmative Defenses
Immunity from a 42 U.S.C.S. § 1983 claim, as well as all the other complex and confusing facets of § 1983 actions, is governed by federal law. Qualified immunity from § 1983 claims is provided to government officials as a result of a balancing of competing interests. The need to provide a legal means to vindicate a citizen's federally recognized rights when they are transgressed by government actors is measured against the costs of necessarily inhibiting government officials in the discharge of their occupational duties, including the time spent defending unfounded claims.

Civil Procedure: Pleading & Practice: Defenses, Objections & Demurrers: Affirmative Defenses
Civil Procedure: Summary Judgment: Summary Judgment Standard
Constitutional Law: Civil Rights Enforcement: Civil Rights Act of 1871
Constitutional Law: Civil Rights Enforcement: Official Immunities
In developing the test for qualified immunity under a 42 U.S.C.S. § 1983 action, the United States Supreme Court has disposed of the previously recognized subjective element of the defense. The court determines that requiring government officials to establish a lack of malice was too lofty of a burden to meet at the summary judgment phase of litigation, and, therefore, incompatible with the court's desire to dispose of unsubstantiated claims early in the gestation of a case. Under the recognized test for qualified immunity, the subjective intentions of a government official play no role in the analysis and error exists in factoring malice into the § 1983 immunity equation.

Civil Procedure: Pleading & Practice: Defenses, Objections & Demurrers: Affirmative Defenses
Governments: State & Territorial Governments: Claims By & Against
Governments: State & Territorial Governments: Employees & Officials
Constitutional Law: Civil Rights Enforcement: Civil Rights Act of 1871
Constitutional Law: Civil Rights Enforcement: Official Immunities
The United States Supreme Court provides the analysis to be undertaken in ascertaining whether a government actor is immune from a 42 U.S.C.S. § 1983 claim. Case law provides that government officials performing discretionary functions with a qualified immunity, shielding them from civil damages liability as long as their actions could reasonably be thought consistent with the rights they are alleged to violate. Somewhat more concretely, whether an official protected by qualified immunity may be held personally liable for an allegedly unlawful official action generally turns on the objective legal reasonableness of the action assessed in light of the legal rules that are clearly established at the time it is taken.

Governments: State & Territorial Governments: Claims By & Against
Governments: State & Territorial Governments: Employees & Officials
Government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights, of which a reasonable person would know.

Governments: State & Territorial Governments: Employees & Officials
Governments: State & Territorial Governments: Police Power
Constitutional Law: Search & Seizure: Scope of Protection
The United States Supreme Court has long recognized the right of police officers to take necessary measures and use some degree of force when arresting a suspected defendant. This right to use a certain degree of force must be carefully analyzed in light of the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest.

Governments: State & Territorial Governments: Employees & Officials
Governments: State & Territorial Governments: Police Power
Constitutional Law: Search & Seizure: Scope of Protection
The "reasonableness" of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight, with respect to a claim of excessive force, the same standard of reasonableness at the moment applies: Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates the U.S. Const. amend. IV. The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments--in circumstances that are tense, uncertain, and rapidly evolving--about the amount of force that is necessary in a particular situation. 

Constitutional Law: State Constitutional Operation & Amendment
Governments: Courts: Common Law
Constitutional Law: Civil Rights Enforcement: Civil Rights Act of 1871
Constitutional Law: Civil Rights Enforcement: Official Immunities
Appellate case law recognizes that a common law action for damages lies when an individual is deprived of his or her liberty in violation of the Md. Const. Declaration of Rights arts. XXIV, XXVI. One of the features that distinguish an action for damages brought for violations of art. XXIV from one brought under 42 U.S.C.S. § 1983 is that a state public official alleged to have violated art. XXIV, or any article of the Maryland Declaration of Rights, is not entitled to qualified immunity.

Torts: Public Entity Liability: Immunity
Governments: State & Territorial Governments: Claims By & Against
Constitutional Law: State Constitutional Operation & Amendment
Governments: State & Territorial Governments: Employees & Officials
Constitutional provisions like Md. Const. Declaration of Rights art. XXIV or art. XXVI, or art. III, § 40, are specifically designed to protect citizens against certain types of unlawful acts by government officials. To accord immunity to the responsible government officials, and leave an individual remediless when his constitutional rights are violated, would be inconsistent with the purpose of the constitutional provisions. In addition, for violations of the Maryland Constitution, state appellate courts do not follow the federally recognized distinction between official and individual capacity actions, and impose liability on state officials for violating an individual's Maryland Constitutional rights when the official has acted in furtherance of a state policy and custom, as well as for actions taken on his own initiative.

Criminal Law & Procedure: Arrests: Probable Cause
Governments: State & Territorial Governments: Employees & Officials
An arrest without legal authority qualifies as an unlawful act by a government official.

Constitutional Law: State Constitutional Operation & Amendment
Constitutional Law: Search & Seizure: Scope of Protection
When a right protected under Md. Const. Declaration of Rights art. XXIV is also secured under a companion provision in the U.S. Const. amend. XIV, Maryland courts often look to federal cases interpreting the parallel federal provision. United States Supreme Court opinions concerning the equal protection clause of amend. XIV are practically direct authorities with regard to art. XXIV. Art. 24 and amend. XIV's equal protection clause that generally mean the same and apply in a like manner. State appellate courts adhere to the construction the Maryland Supreme Court places on the like provision of U.S. Const. amend. VI to interpret that right under Md. Const. Declaration of Rights art. XXI. The essential analysis is the same under art. 24 and art. 26 as that under the U.S. Const. amend. IV.

Constitutional Law: State Constitutional Operation & Amendment
See Md. Const. Declaration of Rights art. XXIV.

Constitutional Law: State Constitutional Operation & Amendment
Constitutional Law: Substantive Due Process: Equal Protection: Scope of Protection
The Maryland Constitution does not contain an express equal protection clause, but appellate courts nonetheless hold that the principles of equal protection are impliedly guaranteed through Md. Const. Declaration of Rights art. XXIV.

Governments: State & Territorial Governments: Employees & Officials
Constitutional Law: Search & Seizure: Scope of Protection
All claims that law enforcement officers use excessive force - - deadly or not - - in the course of an arrest, should be analyzed under the U.S. Const. amend. IV and its "reasonableness" standard. To examine a police officer's use of force, courts take the perspective of a reasonable officer on the scene of the incident at issue and pay close attention to the particular facts of each case. Courts consider whether the plaintiff posed an immediate danger to the public or the police, and whether the plaintiff was resisting arrest, taking into account that due to the exigency of some circumstances, police officers may be forced to make split-second decisions based on incomplete facts.

COUNSEL: ARGUED BY Jonathan P. Kagan (Brassel & Baldwin, P.A., on brief) all of Annapolis, MD, FOR APPELLANTS.
 
ARGUED BY Kimberly Smith Ward, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General of Maryland and Karen J. Kruger and Deborah A. Donohue, Assistant Attorneys General, on brief) all of Baltimore, MD, FOR APPELLEES.

JUDGES: ARGUED BEFORE Bell, C. J., Eldridge, Rodowsky, Raker, Wilner, Cathell, and Harrell, JJ.

OPINIONBY: Harrell

OPINION: [**122] [*169]
 
Opinion by Harrell, J.

   On 15 June 1996, Inalegwu Okwa (Mr. Okwa) was arrested by Maryland Transportation Authority (MTA) police officers at Baltimore-Washington International airport (BWI) following a verbal dispute between Mr. Okwa and a counter attendant of British Airways, PLC (British Airways) over the validity of an airline ticket previously issued to Mr. Okwa for a British Airways flight. He was charged with assault, disorderly conduct, and resisting arrest. At his trial in the District Court of Maryland, sitting in Anne Arundel County, the Court found Mr. Okwa not guilty of all charges. Seemingly vindicated, Mr. Okwa and his wife, Margaret Westmoreland-Okwa (Appellants), filed a fifteen-count complaint in the Circuit Court for Baltimore City against British Airways, a British Airways[***2] employee, the State of Maryland, the MTA, and three MTA police officers. The causes of action stated in the complaint stem from the alleged manner in which the MTA police officers and British Airways personnel treated Mr. Okwa during his dispute with the British Airways counter staff over the plane ticket and subsequent arrest. The case was transferred, on motion of the defendants, to the Circuit Court for Anne Arundel County. Following a hearing, the Court granted the defendants' motion to dismiss or for summary judgment. Appellants filed a notice of appeal with the Court of Special Appeals. Before that court considered the case, we issued a writ of certiorari on our own initiative.  [*170] Okwa v. Harper, 357 Md. 233, 743 A.2d 245 (2000). Appellants focus their appeal solely on the Circuit Court's judgment as to the motions of the three MTA police officers (Appellees).
 
I. BACKGROUND

   Mr. Okwa arrived at the British Airways ticket counter at BWI on 15 June 1996 at 5:30 p.m. His purpose was to check-in for a flight to Lagos, Nigeria, scheduled to depart at 6:45 p.m. Mr. Okwa had paid $2,353 for his ticket. n1 When he walked up [**123] to the counter and offered his ticket, Ms. [***3]Maria Spriggs and another British Airways employee informed him that his ticket was invalid for travel on that particular flight to Nigeria. Mr. Okwa inquired as to why they would not accept his ticket. Ms. Spriggs did not answer his question; instead she recommended that he take up his ticket dispute with his travel agent. Mr. Okwa renewed his request for an explanation regarding the problem with his ticket. Without further explanation, Ms. Spriggs asked Mr. Okwa to pick up his baggage and leave the check-in area. At least two MTA police officers, Michael G. Harper (Harper) and Kimberly Potter (Potter), were in the same area of the airport terminal where Mr. Okwa's ticket dispute was evolving. They approached [*171] the check-in counter and were informed by Ms. Spriggs that Mr. Okwa was "causing trouble." n2

n1 Apparently, although not stated clearly in the record, Mr. Okwa purchased his ticket through R.A. Travel, Inc., an airline ticket reseller. In an affidavit submitted by Mr. Okwa, he stated that he was originally scheduled for a flight departing on 4 March 1996, but later determined he would be unable to fly on that date. He called his travel agent to cancel his reservation and to reschedule his flight for 15 June 1996. At least two weeks before his rescheduled flight, he called British Airways to confirm his reservation and reconfirmed in-person at a British Airways office in Washington, DC, sometime during the week before 15 June 1996. On both occasions when Mr. Okwa confirmed his new reservation, he maintained that he was advised by British Airways personnel that there were no problems with his reservation.

   Contrary to Mr. Okwa's explanation, Ms. Spriggs testified at Mr. Okwa's criminal trial, that on 15 June 1996, as she was beginning to check Mr. Okwa in for his flight, she noticed in British Airways's computer system that Mr. Okwa previously was advised to return his ticket to his travel agent because British Airways had ceased doing business with Mr. Okwa's travel agent and his ticket had expired.

   During Mr. Okwa's criminal trial, the State stipulated the Mr. Okwa had a valid ticket for travel on 15 June 1996. 

[***4] 

n2 It is unclear whether the officers were attracted to the scene by overhearing the dispute or were summonsed by British Airways personnel.

   At this point, the parties, in their pleadings and papers submitted to the Circuit Court, offer conflicting accounts of what happened next. The affidavits of Officers Harper and Potter stated that the officers approached Mr. Okwa and asked him to calm down, but Mr. Okwa "continued to get more agitated." Officer Potter reportedly told Mr. Okwa "to cease and desist his unlawful activities and explained that he could not stand in a public facility and scream and holler or else I would have to arrest him for disorderly conduct." According to the officers, Mr. Okwa thereupon demanded that they arrest him and he offered his hands to be handcuffed. The officers asserted they complied with his request. They handcuffed Mr. Okwa and guided him toward a terminal exit. The third Appellee, Officer William H. Gernert, n3 arrived on the scene at this point and assisted his fellow officers in removing Mr. Okwa. When the group exited the terminal, the officers explained[***5] that Mr. Okwa "started jumping up and down trying to break free and yelling at us to shoot him." In an attempt to restrain Mr. Okwa, Officer Potter stated that she grabbed his hands, but Mr. Okwa twisted his arms and trapped Officer Potter's hands in the handcuffs. The whole group then fell to the ground. The officers restrained Mr. Okwa on the ground until additional officers arrived on the scene. When a patrol car arrived on the scene, Mr. Okwa calmed down and ceased to struggle. Officer Harper placed Mr. Okwa into the car and he was taken to the Anne Arundel County Detention Center. Officer Potter was taken to a hospital for treatment of injuries suffered in the scuffle and fall.

n3 Appellees note in their brief that Officer Gernert passed away during the pendency of this appeal.

   In an affidavit n4 offered by Mr. Okwa, he presented a different version of the events [**124] leading up to his incarceration. [*172] According to Mr. Okwa, without inquiring about the nature of his ticket dispute with the British Airways personnel,[***6] Officers Harper and Potter prematurely demanded that he leave the airport terminal. Mr. Okwa explained to the officers that he had a valid ticket and wished to board the flight. Without further warnings or discussion, the officers then handcuffed him and began to drag him away from the ticket counter, at which point they were joined by Officer Gernert and a police search dog. When the group exited the terminal, Mr. Okwa asserted that he was forced to the ground, struck in the head by either Officer Harper or Gernert, and had his cuffed hands twisted by his thumbs by Officer Potter. As a result of the [*173] incident, Mr. Okwa suffered injuries to his head, neck, knees, and arms. At the time of the ticket dispute and his arrest, Mr. Okwa stated that he was the only person in the immediate area of the terminal where the British Airways counter was located, except for the police officers and British Airways personnel. He acknowledged that he raised his voice during the ticket dispute, but claimed that he never screamed or yelled at the officers or Ms. Spriggs. Mr. Okwa concluded his affidavit stating that he did not resist or provoke the officers and that it was his belief "that the actions[***7] by Gernert, Harper, and Potter were motivated by the fact that I was a black male and were taken with the intended purpose to injure me."

n4 Although titled as an "affidavit," the three page, 18 March 1999 paper signed by Mr. Okwa failed to contain the usual prerequisites for an affidavit. Appellees have asserted before this Court that Mr. Okwa's "affidavit" should not be considered in our analysis of whether a genuine dispute of a material fact was generated because there is no indication in the document that Mr. Okwa's statements were made under oath or affirmation, or that they were made based on his personal knowledge. Mr. Okwa's affidavit is lacking in both regards, although it states he is competent to testify as an adult. Ordinarily such faults would justify disregarding such a purported affidavit (see Md. Rule 2-501(c)); however, we shall not countenance Appellees raising this issue for the first time on appeal. The scope of matters we will decide on appeal is quite clear. Maryland Rule 8-131(a) states " . . . the appellate court will not decide any other issue [subject matter jurisdiction aside] unless it plainly appears by the record to have been raised in or decided by the trial court." Appellees were aware of Mr. Okwa's "affidavit" prior to the motions hearing in the Circuit Court and had ample opportunity to review it before the hearing. For whatever reason, Appellees did not point out to the Circuit Court the correctable flaws in the form of the affidavit they raise here. By proceeding in this manner, they have waived this issue for purposes of appeal. See Outmezguine v. State, 335 Md. 20, 51-52, 641 A.2d 870, 886 (1994); Wyand v. Patterson Agency, Inc., 266 Md. 456, 460-61, 295 A.2d 773, 776 (1972)("non-compliance in the affidavit with the rule's requirements as to form cannot be raised for the first time on appeal"); Fishman Const. Co. v. Hansen, 238 Md. 418, 424, 209 A.2d 605, 608 (1965)(question regarding the sufficiency of parties affidavit may not be presented for the first time on appeal). Moreover, the motions judge did not state, as he had the ability to do even in the absence of Appellees' objections, that he was disregarding Mr. Okwa's "affidavit" as part of the record before him in ruling on the motion. Having not excluded expressly from consideration Mr. Okwa's "affidavit," the Circuit Court is deemed by us, for appellate review, to have considered it in reaching its pertinent ruling. See Md. Rule 2- 322(c).

 

[***8]

    Mr. Okwa was charged with disorderly conduct in a public place, resisting arrest, and assault. His District Court trial was held 1 May 1997. The State presented five witnesses, including Ms. Spriggs and Officers Potter and Gernert. After the State presented its case, defense counsel for Mr. Okwa decided not to call any witnesses because he believed that the State had failed to meet its burden. The trial judge agreed. He found that there were too many contradictions in the testimony given by the State's witnesses to warrant a conviction and therefore found Mr. Okwa not guilty of all charges. n5

n5 Some of the more obvious contradictions to which the trial judge may have referred involved the conflicting testimony of the witnesses regarding the point in time when Mr. Okwa was placed under arrest and whether Mr. Okwa caused a crowd to gather around the British Airways ticket counter. British Airways personnel, including Ms. Spriggs, testified that the only people in the area during the ticket dispute were the officers and three ticket agents. Officer Potter and Gernert testified that a crowd had gathered around the ticket counter. Officer Gernert also testified that Mr. Okwa was placed under arrest and handcuffed outside of the airport terminal. The other witnesses testified that he was handcuffed at the ticket counter. The transcript of the District Court trial was before the Circuit Court for consideration at the motions hearing in the civil suit.

[***9]

   [**125] On 5 March 1998, Appellants filed a complaint seeking damages in the Circuit Court for Baltimore City. On 7 April 1998, Officers Harper and Potter, the MTA, and the State of Maryland filed a motion to dismiss for improper venue. On 17 June 1998, the Court denied the motion to dismiss, but [*174]ordered the case transferred to the Circuit Court for Anne Arundel County. n6 See Md. Rule 2-327(b).

n6 On 24 April 1998, while the Circuit Court was considering the motion to dismiss for improper venue, British Airways and Ms. Spriggs filed a notice of removal to the United States District Court for the District of Maryland. They also filed their answer to Appellants' complaint in the federal court on 5 May 1998. On 21 May 1998, Judge Andre M. Davis remanded the case back to the Circuit Court for Baltimore City. Apparently, having not yet received notice of the federal court's remand order, Officer Gernert filed in the federal court on 26 May 1998 his answer to Appellants' complaint.

   Appellants filed an amended complaint[***10] in the Circuit Court for Anne Arundel County on 20 January 1999. In the amended complaint, Appellants asserted against all the defendants the common law torts of false imprisonment, malicious prosecution, intentional infliction of emotional distress, as well as violations of 42 U.S.C. § 1985 and 42 U.S.C. § 1981. Each count sought compensatory and punitive damages against Officers Harper, Potter, and Gernert, the MTA, and the State of Maryland. n7 Additionally, Appellants included a common law battery count and counts charging violations of 42 U.S.C. § 1983 and Article 24 of the Maryland Declaration of Rights, seeking compensatory and punitive damages, against Officers Harper, Potter, and Gernert, the MTA, and the State of Maryland. Finally, Appellants added a loss of consortium claim against all of the defendants.

n7 British Airways and Ms. Spriggs were also included in the claim for punitive damages under the 42 U.S.C. § 1985 count.

[***11]

   On 18 February 1999, Officers Harper and Potter, the MTA, and the State of Maryland filed an amended motion to dismiss, or alternatively motion for summary judgment. The affidavits of Officers Harper and Potter were attached to the motion. On that same day, Officer Gernert filed a motion to dismiss, supporting memorandum of law, and his affidavit. On 18 February 1999, British Airways and Ms. Spriggs filed a motion to dismiss the first amended complaint. Appellants filed, on 25 March 1999, separate memoranda in opposition to all the defense motions and Mr. Okwa's affidavit. [*175]

   A hearing was held in the Circuit Court for Anne Arundel County, on 14 June 1999, to address all pre-trial motions filed by the parties. At the hearing, the Court treated British Airways's and Ms. Spriggs's motion to dismiss as a motion for summary judgment and granted the motion at the hearing. The Court signed an order granting summary judgment to those defendants on 1 July 1999. In similar fashion, the Court orally granted the motion to dismiss, or alternatively motion for summary judgment, filed by the MTA, and the State. It then signed the order granting their motion on 6 July 1999. The Court at the 14 June[***12] hearing reserved its ruling on the motions filed on behalf of Officers Harper, Potter, and Gernert.

   Ultimately, the Court granted motions to dismiss or, in the alternative, motions for summary judgment in favor of Officers Harper, Potter, and Gernert. n8 In an extensive footnote to each order regarding the officer's motions, the Court made certain findings pertinent to the present appeal. The Court explained:

n8 The Court's order as to Officer Gernert's motion was docketed on 1 July 1999 and its order as to Officers Harper and Potter was docketed on 6 July 1999. 

    [**126] a.) Count I & II Battery & Punitive Damages: Plaintiffs fail to state a claim upon which relief may be granted as against these Defendants. The court finds that Defendants were acting in accordance with their duties of employment and as such are immune from suit. . . . Furthermore, the requisite finding of malice against Plaintiffs does not exist to remove the bar of immunity in the present suit. . . .

   b.) Count III & IV False Arrest & False Imprisonment: [***13] This count too is barred by the grant of immunity. . . . Further, these counts fail to establish a claim upon which relief can be granted in that False Arrest & False Imprisonment require an arrest or confinement without legal authority or probable cause. . . . As a result of Plaintiff Okwa's independent actions, the officers had adequate probable cause to cause an arrest and imprisonment. [*176]

   c.) Count V & VI Malicious Prosecution: In addition to the immunity of the Defendants, this Court finds that there are not adequate grounds to support a cause of action for Malicious Prosecution as to these Defendants. . . .
 
*****

   d.) Counts IX & X 42 U.S.C. Section 1983 Violation of Civil Rights: Defendants in this case enjoy the privilege of immunity and did not act with malice to lift the bar of such immunity. Further, Plaintiffs fail to allege facts sufficient to lift the bar of immunity in that they have not proved that Plaintiffs were deprived of a right or privilege secured by the Constitution. As a result Plaintiffs cannot maintain an action against Harper, Potter, or Gernert. . . .
 
*****

   h.) Counts XVII & XVIII Violation of the Maryland Declaration of Rights [***14]and Punitive Damages: Plaintiffs seek remedies to which they cannot establish a basis for. Defendants in this case were acting within the scope of their employment, and arrested and detained Plaintiff Okwa in accordance with the Constitution. . . . Plaintiff Okwa fails to state a claim which would permit this Court to grant a remedy.

   i.) Counts XIX & XX Loss of Consortium: This tort is derivative in nature, and therefore it too fails to demonstrate compensable harm on the part of the Plaintiffs. . . .

   On 27 July 1999, Appellants appealed to the Court of Special Appeals. Before the intermediate appellate court considered the appeal, we granted a writ of certiorari on our own initiative to consider whether the Circuit Court erred in granting summary judgment to Officers Harper, Potter, and Gernert (Appellees) on the common-law, constitutional, and loss of consortium claims asserted by Appellants. n9 The specific questions presented to the Court are:

n9 Appellants do not appeal the lower court's orders regarding British Airways, Ms. Spriggs, the MTA and the State. Appellants also do not pursue an appeal of the lower court's orders disposing of the claims for intentional infliction of emotional distress, and violations of 42 U.S.C. § 1981 and 42 U.S.C. § 1985 against the Appellees.

[***15] [*177]

   I. Whether the lower court erred in granting appellee police officers' motion for summary judgment on the claims for battery, false arrest, and malicious prosecution, because genuine issues of material fact existed on the issue of malice.

   II. Whether the lower court erred in granting appellee police officers' motion for summary judgment on the state and federal constitutional claims for excessive force when genuine issues of material fact existed on the issue of "objective reasonableness."

   II. STANDARD OF REVIEW

   The Circuit Court's pertinent orders state "that the Defendant's Motion to Dismiss [**127] or, in the Alternative for Summary Judgment [as] to [ ] [the] First Amended Complaint be, and is hereby GRANTED." Although the Circuit Court did not explain whether it was granting Appellees' motions to dismiss or motions for summary judgment, we shall treat the orders as granting summary judgment. Pursuant to Maryland Rule 2-322(c), when a trial judge is presented with factual allegations beyond those contained in the complaint to support or oppose a motion to dismiss and the trial judge does not exclude such matters, then the motion shall be treated as one for summary judgment.[***16] See also Green v. H & R Block, 355 Md. 488, 501, 735 A.2d 1039, 1047 (1999); Fairfax Savings v. Kris Jen Ltd. Partnership, 338 Md. 1, 9-10, 655 A.2d 1265, 1269 (1995). In the present case, the parties offered dueling affidavits that included allegations beyond those in the complaint. The trial judge did not expressly exclude the parties' affidavits and, at the motions hearing, appears to have referred to language found in Mr. Okwa's affidavit. Thus, we will review the Circuit Court's orders under our summary judgment jurisprudence. [*178]

   A summary judgment motion is not a substitute for trial. Rather it is used to dispose of cases when there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. See Md. Rule 2-501(e); Ungar v. Handelsman, 325 Md. 135, 146-47, 599 A.2d 1159, 1164 (1992). The standard for appellate review of a trial court's grant of summary judgment is whether the trial judge was legally correct in his or her rulings. See Sheets v. Brethren Mut. Ins. Co. 342 Md. 634, 638-39, 679 A.2d 540, 542 (1996); Heat & Power v. Air Prod., 320 Md. 584, 592, 578 A.2d 1202, 1206 (1990).[***17] In granting a motion for summary judgment, the trial judge may not resolve factual disputes, but instead is limited to ruling on matters of law. See Pittman v. Atlantic Realty Co., 359 Md. 513, 536, 754 A.2d 1030, 1042 (2000)(No. 103, September, 1999)(filed 12 July 2000); Sheets, 342 Md. at 638, 679 A.2d at 542. Summary judgment is generally inappropriate when matters such as knowledge, intent, and motive are at issue. See Brown v. Dermer, 357 Md. 344, 355, 744 A.2d 47, 53 (2000). If any inferences may be drawn from the well-plead facts, the trial court must construe those inferences in the light most favorable to the non-moving party. See Ashton v. Brown, 339 Md. 70, 79, 660 A.2d 447, 452 (1995). The existence of a dispute as to some non-material fact will not defeat an otherwise properly supported motion for summary judgment, but if there is evidence upon which the jury could reasonably find for the non-moving party or material facts in dispute, the grant of summary judgment is improper. See Beatty v. Trailmaster, Inc., 330 Md. 726, 738, 625 A.2d 1005, 1011 (1993).

   III. COMMON-LAW TORT CLAIMS

   Appellees argue[***18] for affirmance because Appellants failed to establish that Appellees acted with malice when they arrested Mr. Okwa, thus failing to overcome the immunity from certain tort suits enjoyed by state personnel. Appellees further urge they had adequate legal justification and probable cause to arrest Mr. Okwa based on his conduct at BWI. [*179]

   A.

   The Circuit Court concluded that Appellees' were entitled to summary judgment on Appellants' battery count because the Appellees "were acting in accordance with their duties of employment . . . [and] the requisite finding of malice [motivating their conduct] against [Mr. Okwa] does not exist to remove the bar of immunity in the present suit." The immunity referred to by the trial court is that provided to state personnel under the Maryland Tort Claims Act (MTCA). Maryland Code (1984, 1999 Repl. Vol.), State Government, § 12-105 provides that "State personnel shall have the immunity from liability described under § 5-552(b) of the Courts and Judicial Proceedings Article." Maryland Code (1973, 1998 Repl. Vol.), Courts & Judicial [**128] Proceedings, § 5-522(b) in turn states, in pertinent part:

   State personnel, as defined in § 12-101 of the State Government[***19] Article, are immune from suit in courts of the State and from liability in tort for a tortious act or omission that is within the scope of the public duties of the State personnel and is made without malice or gross negligence.
 
Section 12-101(a)(2)(i) defines employees of the Maryland Transportation Authority as "State Personnel." It is undisputed that Appellees were police officers employed by the Maryland Transportation Authority and Appellants concede that Appellees were acting within the scope of their public duties during their confrontation with Mr. Okwa. As Appellants do not argue that Appellees acted with gross negligence, the sole issue as to the battery count is whether the Circuit Court concluded correctly that there existed no triable issue as to whether Appellees acted with malice when they arrested and restrained Mr. Okwa. This Court has addressed the issue of defining malice under the MTCA. Recently in Shoemaker v. Smith, 353 Md. 143, 725 A.2d 549 (1999), we clarified the standard of malice under CJP § 5-522(b). Shoemaker involved two St. Mary's County sheriff's deputies sued by a family following the deputies' temporary detention of the family's[***20] children. n10 The deputies sought summary judgment, [*180] arguing they were immune from suit under the MTCA. The Circuit Court denied the motion.

n10 The deputies took custody of the children because there were allegations that they may have been in danger of abusive treatment by their father.

   Before this Court, the deputies asserted they were entitled to summary judgment based on the doctrine of collateral estoppel because, in a related federal case where the family had asserted a 42 U.S.C. § 1983 claim against the deputies, a United States District Judge found that the deputies did not use excessive or unreasonable force. See Shoemaker, 353 Md. at 158, 725 A.2d at 557. Following a review of the evolution of the grounds for immunity from a 42 U.S.C. § 1983 claim, we rejected the deputies' argument, holding that substantial distinctions existed between 42 U.S.C. § 1983 immunity and immunity under the MTCA. We noted that malice[***21] had been eliminated effectively as a ground that would trump immunity in a § 1983 context, but that the absence of malice was a legislatively mandated element for immunity under the MTCA and CJP § 5-522(b). We explained that:

   the question raised for purposes of immunity under the State Tort Claims Act is whether a jury could reasonably find that [the deputies] conduct, given all of the existing and antecedent circumstances, was motivated by ill will, by an improper motive, or by an affirmative intent to injure the boys . . . that motive or animus may exist even when the conduct is objectively reasonable. If it does, there is no immunity under the State Tort Claims Act.
 
Id. at 164, 725 A.2d at 560.

   In an earlier case, Sawyer v. Humphries, 322 Md. 247, 587 A.2d 467 (1991), we similarly described the element of malice for purposes of the MTCA. The defendant in Sawyer, a state police officer, was alleged to have committed numerous intentional torts, including battery. The plaintiffs claimed that the officer, while off-duty, threw rocks at their car and attacked one of the occupants of the car. The Court of Special Appeals affirmed the trial[***22] court's judgment dismissing the case, holding that the officer was immune from the suit under the MTCA. As one basis for our reversal of the Court of Special Appeals, we held the plaintiffs had alleged sufficiently, to [*181] overcome the motion to dismiss, that the officer's actions were malicious. In clarifying the meaning of the term "malice," we stated:

   when someone, without provocation or cause, throws rocks at two other persons, [**129] he is obviously demonstrating ill will towards those persons. Wrestling another to the ground, pulling his hair, and hitting him on the face, again without cause or provocation, is certainly malicious conduct.
 
Sawyer, 322 Md. at 261, 587 A.2d at 474.

   Our review of the record in the present case, in particular the affidavits submitted by Mr. Okwa and Appellees, reveals two diametrically opposed versions of the circumstances surrounding Mr. Okwa's arrest. According to the Appellees' affidavits collectively, as the three officers were escorting Mr. Okwa toward the terminal exit, he started "jerking from side to side" and began to "kick his feet." After the group "calmly exited" the terminal, Mr. Okwa "started jumping" and Appellees merely[***23] "tried to control him by his handcuffs." Mr. Okwa continued to struggle and the group "fell to the ground" while Officer Harper "tried to break Mr. Okwa's fall as he would not be able to catch himself." Mr. Okwa was still "fighting" as Appellees held him to the ground.
 
   Mr. Okwa, however, offered a different view of the incident. He explained in his affidavit that, after he was handcuffed, Appellees "roughly dragged" him toward the exit. When the group emerged outside of the terminal, he "was forcibly put to the ground." Although "at no time did [he] resist or provoke the officers," Mr. Okwa was struck "in the head and neck" and "his cuffed hands [were twisted] by his thumbs." As a result of the incident, Mr. Okwa "suffered injuries to [his] head, neck, knees, wrists, and arms."

   Based on Appellees' version of the story, a fact finder, if given the opportunity, could conclude that Appellees acted without malice and did not commit the act of battery while arresting Mr. Okwa. The fact finder could find that any injuries suffered by Mr. Okwa were the product of his own resistive and combative efforts. Apparently this is the version [*182] of events that the trial judge opted to believe. [***24] The trial judge necessarily determined Appellees' accounts of the alteration to be more credible and based his ruling on them. This was an error. The summary judgment process is not properly an opportunity for the trial court to give credence to certain facts and refuse to credit others. See Pittman v. Atlantic Realty Co., 359 Md. 513, 537, 754 A.2d 1030, 1043 (2000)(No. 103, September, 1999)(filed 12 July 2000) (citations omitted)(the trial judge is not permitted to weigh evidence in deciding a motion for summary judgment); Sheets v. Brethren Mut. Ins. Co., 342 Md. at 638, 679 A.2d at 542 ("in granting a motion for summary judgment, the trial court does not resolve factual disputes, but instead is limited to ruling as a matter of law"); Dobbins v. Washington Suburban Sanitary Comm'n, 338 Md. 341, 345, 658 A.2d 675, 677 (1995)("the trial court does not determine facts, but instead rules on the motion [for summary judgment] as a matter of law").

   If a fact finder believed Mr. Okwa's rendition of the incident, however, it could infer reasonably that Appellees were motivated by an improper motive or that they had an affirmative intent to bring harm to[***25] Mr. Okwa. See Shoemaker, 353 Md. at 164, 725 A.2d at 560. It would not be unreasonable for a fact finder to infer that Appellees were motivated by an extreme and overzealous desire to punish Mr. Okwa for failing to obey immediately their instructions to walk away from the ticket counter and exit the terminal. The alleged fact, if believed, that peace officers beat a citizen about his head and neck while they twisted his thumbs, could support an inference that Appellees were inspired with malicious intention. Such behavior fits the type of conduct which would strip the actor's immunity otherwise provided under the MTCA. See Shoemaker, 353 Md. at 164, 725 A.2d at 560. Because disputed material facts exist in the record, or inferences of malicious conduct may be drawn from Mr. Okwa's version of the facts, the battery counts were not amenable to disposition via summary judgment. 

   [**130] B.

   The Circuit Court granted Appellees' motion for summary judgment, as to the malicious prosecution counts, because [*183] "there are not adequate grounds to support a cause of action for Malicious Prosecution as to these [Appellees]." n11 For the reasons explained below, we[***26] hold that the trial judge erred in reaching this conclusion.

n11 The Circuit Court also found that the malicious prosecution counts and the "False Arrest/False Imprisonment" counts were barred by the grant of immunity under CJP § 5-552(b). For the reasons we explained in part III. A. of this opinion, we also hold that a fact-finder could draw a reasonable inference from Appellants' facts that Appellees acted with the requisite degree of ill-will or improper motive to trump the immunity conferred by the MTCA. See Shoemaker, 353 Md. at 164, 725 A.2d at 560.

   A plaintiff must show the following to establish the tort of malicious prosecution:

   1) the defendant instituted a criminal proceeding against the plaintiff;

   2) the criminal proceeding was resolved in the plaintiff's favor;

   3) the defendant did not have probable cause to institute the proceeding; and 

   4) the defendant acted with malice or a primary purpose other then bringing the plaintiff to justice.
 
See DiPino v. Davis, 354 Md. 18, 54, 729 A.2d 354, 373 (1999);[***27] One Thousand Fleet Ltd. Partnership v. Guerriero, 346 Md. 29, 37, 694 A.2d 952, 956 (1997); Krashes v. White, 275 Md. 549, 554, 341 A.2d 798, 801 (1975). Appellees do not contest that following Mr. Okwa's arrest by Appellees, he was charged with disorderly conduct, resisting arrest, and assault. It is also uncontested that Mr. Okwa was found not guilty of these charges by the District Court. Thus, facts have been plead that, if proven, satisfy elements 1) and 2) of the tort. It is necessary for us to consider whether there are a triable issues as to whether Appellees had probable cause to arrest Mr. Okwa and whether they acted with malice when they did so.

   Probable cause, as the term suggests, is a concept based on probability. See State v. Ward, 350 Md. 372, 396, 712 A.2d 534, 545-46 (1998)(quoting Illinois v. Gates, 462 U.S. 213, 231, [*184] 103 S. Ct. 2317, 2328, 76 L. Ed. 2d 527, 544 (1983)). It does not have a technical definition. Rather, the question of whether a law enforcement officer had probable cause to make a particular arrest is determined on "factual and practical considerations of everyday life on which reasonable[***28] and prudent [people] . . . act." Id. We have defined probable cause as "'facts and circumstances sufficient to warrant a prudent [person] in believing that the [suspect] had committed or was committing an offense.'" DiPino, 354 Md. at 32, 729 A.2d at 361 (citations omitted)(alterations in original). In DiPino, we instructed that:

   to determine whether an officer had probable cause, under that conception, the reviewing court necessarily must relate the information known to the officer to the elements of the offense that the officer believed was being or had been committed. The officer, of course, must undertake the same analysis in determining, in the first instance, whether the person may lawfully be arrested.
 
Id.

   Appellees initially arrested Mr. Okwa for disorderly conduct. Therefore, it is necessary for us first to consider the nature of that offense. Disorderly conduct in public places is a statutory crime with common law roots. It is presently codified in Maryland Code (1957, 1996 Repl. Vol.), Article 27, § 123. The statute provides, in pertinent part:

   A person may not act in a disorderly manner to the disturbance of the public peace, [***29] upon any public street, highway, alley, park or parking lot, in any city, town, or county in this State, or at any place of public worship, or public resort or amusement in any city, town or county in this State, or in any store during [**131] business hours, or in any elevator, lobby or corridor of any office building or apartment house having more than three separate dwelling units, or in any public building in any city, town or county of this State.
 
We have interpreted the statute to prohibit "the doing or saying, or both, of that which offends, disturbs, incites, or tends to incite, a number of people gathered in the same [*185] area." See Dennis v. State, 342 Md. 196, 201, 674 A.2d 928, 930 (1996), vacated on other grounds and remanded, 519 U.S. 802, 117 S. Ct. 40, 136 L. Ed. 2d 4 (1996), affirmed on remand, 345 Md. 649, 693 A.2d 1150 (1997).

   Appellees correctly asserted at oral argument that there is a police command aspect to the crime of disorderly conduct. See Dennis, 342 Md. at 201, 674 A.2d at 930. When a citizen disobeys a reasonable and lawful request by a police officer "fairly made to prevent a disturbance[***30] to the public peace" that citizen has engaged in disorderly conduct. See Harris v. State, 237 Md. 299, 303, 206 A.2d 254, 256 (1965). See also Baynard v. State, 318 Md. 531, 538, 569 A.2d 652, 655 (1990)(under some circumstances, it is a violation to disobey a police officer's request to leave an area). The police officer's request, however, must be intended to prevent someone from inciting or offending others. It may not be an arbitrary directive. See Dennis, 342 Md. at 201, 674 A.2d at 930. In Dennis, we held that a passenger's failure to remain in a car after he was commanded to do so did not pose a sufficient danger of breaching the peace in order to sustain a disorderly conduct conviction. See id. at 203, 674 A.2d at 931. But see Barnhard v. State, 325 Md. 602, 616, 602 A.2d 701, 708 (1992)(evidence that a defendant taunted police with obscenities, threatened to kill another officer, and incited a crowd was sufficient to give police probable cause to make an arrest for disorderly conduct).

   In Briggs v. State, 90 Md. App. 60, 599 A.2d 1221 (1992), the Court of Special Appeals[***31] affirmed a disorderly conduct conviction on somewhat analogous facts to those alleged by Appellees in the present case. During a carnival in Caroline County, the defendant became agitated after he lost a sum of money at a gambling table. He began cursing in a loud voice, violently throwing dice at the table, and grabbing for his lost money. Despite efforts to calm him down, the defendant continued his behavior, the police were summoned and eventually arrested him. During the arrest, the defendant swung his arms around and struck the police officers. A large crowd gathered during the struggle. [*186]
 
   After his conviction for disorderly conduct, the defendant appealed to the Court of Special Appeals challenging the sufficiency of the evidence supporting his conviction. The court undertook a chronological analysis, viewing the defendant's conduct in separate episodes, first at the gambling table and then during the fight with the police. It ultimately held that the defendant's behavior in either time frame was sufficient to support a disorderly conduct conviction. Focusing on his behavior at the table, the court stated:

   [the defendant] shouted, grabbed back the money he lost, and slammed [***32]the dice into the table. The carnival was crowded, and some of the patrons were noticeably affected by this: people complained to the firemen, asking them to do something to induce [the defendant] to desist. So extreme was [the defendant's] behavior that the firemen operating the dicing game were moved to seek police assistance in persuading him to leave after their own attempts to discourage his disruptive behavior were unsuccessful. This alone would be sufficient to invoke the statute's sanctions.
 
Briggs, 90 Md. App. at 69, 599 A.2d at 1225. Turning to the point in time when the defendant was arrested, the court explained:

   his response to their order constituted disorderly conduct: in addition to physically resisting their efforts to take him [**132] into custody, he threatened them, and incited the crowd sufficiently to cause the officers to fear that the crowd would 'take him away' from them. . . . we conclude that a rational jury reasonably could have concluded that [the defendant] was guilty of disorderly conduct. [The defendant's] actions at every turn disrupted the carnival, challenged the police, and eventually incited the crowd against the officers. [***33] This behavior reasonably prompted the officers to arrest him for disorderly conduct.
 
Id. at 73, 599 A.2d at 1227.

   Against this backdrop, Appellees contend that they acted properly when they arrested Mr. Okwa for disorderly conduct. They point out that he engaged in the type of conduct [*187] prohibited by the statute by "waiving his hands in the air, yelling, repeatedly refusing to obey Officer Potter's orders to cease and desist this activity in the Airport," and that "a reasonable person observing Mr. Okwa's conduct could believe that Mr. Okwa committed the offense of disorderly conduct."

   This may be a persuasive argument when made to a fact-finder, but it will not carry the day in our review of the grant of summary judgment in this case. Implicit in the Circuit Court's grant of summary judgment is a finding of the facts, viewed in the light most favorable to Appellants, supporting the conclusion, as a matter of law, that Appellees had probable cause to arrest Mr. Okwa. See Md. Rule 2-501(a); Baltimore Gas and Elec. Co. v. Lane, 338 Md. 34, 43, 656 A.2d 307, 311 (1995); Natural Design, Inc. v. Rouse Co., 302 Md. 47, 62, 485 A.2d 663, 671 (1984).[***34] That was an error.

   Examining the factual record before the Circuit Court, under the correct standard, it suggests that Mr. Okwa paid over $2000 for a plane ticket to Nigeria and confirmed his reservation twice before the flight. On both confirmation efforts, airline personnel advised him that there were no problems with his reservation. As he attempted to check-in on the day of the fight, airline personnel refused to accept his ticket or explain their refusal. Rather, he was informed to take up his dispute with his travel agent. His flight was about to depart and he raised his voice, understandably, in frustration. The police approached and, without inquiring into the situation, told him to leave the area. According to Mr. Okwa's version of the event, only he, Appellees, and British Airways personnel were in the immediate vicinity of the dispute. Mr. Okwa stated that he wanted to know why he could not board his flight and the police immediately arrested him.

   If Mr. Okwa's factual allegations are believed ultimately, Officers Potter and Harper did not have probable cause to arrest Mr. Okwa. n12 Maryland Code (1957, 1996 Repl. Vol.), [*188] Article 27, § 123 is directed at deterring more[***35] severe conduct than that engaged in by Mr. Okwa by his account. From the facts alleged by Appellants, a reasonable person might not believe Mr. Okwa's behavior could have offended, disturbed, or incited a group of surrounding people. See Dennis, 342 Md. at 201, 674 A.2d at 930. Mr. Okwa simply was attempting to settle a facially legitimate dispute over a commercial transaction. On the record before us, we cannot say, as a matter of law, that Mr. Okwa's conduct created any real danger of breaching the peace as a matter of law. See Md. Rule 2-501(a); Green v. H [**133] & R Block, Inc., 355 Md. 488, 501, 735 A.2d 1039, 1047 (1999).

n12 Officer Gernert asserts in Appellees' brief that he was not present during the arrest of Mr. Okwa and that he did not initiate criminal charges against Mr. Okwa. Based on these assertions, Officer Gernert claims that he is not liable for Appellants' malicious prosecution and false arrest/imprisonment counts. Officer Gernert, however, overlooks his own testimony at Mr. Okwa's criminal trial wherein he stated that he and the other Appellees handcuffed Mr. Okwa and told him that he was arrested after he was removed from the airport terminal. Officer Gernert's testimony clearly creates a material dispute of fact as to whether he was present when Mr. Okwa was arrested.

[***36]

   We also shall consider briefly the question of whether, on this record and as a matter of law, Appellees lacked "malice, or a primary purpose in instituting the proceeding other than that of bringing the offender to justice." See Krashes , 275 Md. at 554, 341 A.2d at 801. This Court has long held that "the 'malice' element of malicious prosecution may be inferred from a lack of probable cause." Montgomery Ward v. Wilson, 339 Md. 701, 717, 664 A.2d 916, 924 (1995). See DiPino, 354 Md. at 55, 729 A.2d at 374; Exxon Corp. v. Kelly, 281 Md. 689, 699-700, 381 A.2d 1146, 1152-53 (1978); Jannenga v. Libernini, 222 Md. 469, 474, 160 A.2d 795, 798 (1960). Because we have determined that Appellees may not have had probable cause to arrest Mr. Okwa, further analysis of this element is unnecessary.

   We note one final matter regarding Appellants' malicious prosecution claims. Appellants have alleged in their first amended complaint that they are entitled to punitive damages based on the actual malice which allegedly motivated [*189]Appellees. Although an inference of malice based on a lack of probable cause is sufficient[***37] to support an award of compensatory damages, in order to receive a punitive damage award Appellants must prove at trial that Appellees were moved by actual malice. This showing may not be made inferentially. See DiPino, 354 Md. at 55-56, 729 A.2d at 374; Montgomery Ward, 339 Md. at 735-36, 664 A.2d at 933. In Montgomery Ward, we recognized that:

   for punitive damages to be allowable in malicious prosecution actions, a plaintiff must establish by clear and convincing evidence the defendant's wrongful or improper motive for instigating the prosecution. Although the jury may draw an inference of such motive from lack of probable cause for purposes of compensatory damages, it may not rely on the inference in considering punitive damages.
 
Montgomery Ward, 339 Md. at 735-36, 664 A.2d at 933. We command a higher standard in this context because, in certain situations, police officers or an individual may lack probable cause to institute a criminal proceeding because they have acted negligently. An inference of malice, resulting from a negligent action, rather than one motived by true ill-will, cannot justify an award of punitive[***38] damages. See id. at 735, 664 A.2d at 933.

   C.

   Turning to Appellants' false arrest and false imprisonment claims, the Circuit Court awarded summary judgment to Appellees based on its finding that "these counts fail to establish a claim upon which relief can be granted in that False Arrest & False Imprisonment require an arrest or confinement without legal authority or probable cause. . . . As a result of Plaintiff Okwa's independent actions, the officers had adequate probable cause to cause an arrest and imprisonment." The Circuit Court erred.

   In Appellants' first amended complaint they framed one count designated as "False Arrest / Imprisonment." Although the intentional torts of false arrest and false imprisonment [*190] are separate causes of action, they share the same elements. See generally Scott v. Jenkins, 345 Md. 21, 29, 690 A.2d 1000, 1003 (1997); Montgomery Ward, 339 Md. at 721, 664 A.2d at 926. We shall discuss the torts concurrently.

   For a successful cause of action based on false arrest or false imprisonment, the plaintiff must establish that "the defendant deprived him or her of his or her liberty without consent and without legal[***39] justification." See Scott, 345 Md. at 29, 690 A.2d at 1003; Montgomery Ward, 339 Md. at 721, 664 A.2d at 926; Ashton v. Brown, 339 Md. 70, 119, 660 A.2d 447, 471 (1995); Great Atlantic & Pacific Tea Co. v. Paul, 256 Md. 643, 654, 261 A.2d 731, 738 (1970). The core issue under Appellants "False Arrest / Imprisonment" cause of action [**134]is whether Appellees had legal authority to facilitate the arrest of Mr. Okwa at the airport. To resolve this issue, we must examine Appellees' legal authority to make arrests in conjunction with the circumstances of Mr. Okwa's arrest. See Great Atlantic & Pacific Tea Co. v. Paul, 256 Md. at 655, 261 A.2d at 738 ("the test whether legal justification existed in a particular case has been judged by the principles applicable to the law of arrest"). Appellees, as members of the Maryland Transportation Authority Police Force, have all the powers granted to other police in this State when exercising police authority on airport property. See Maryland Code (1974, 1993 Repl. Vol., 1999 Supp.), Transportation Article, § 4-208(b). One of the many powers given to police officers[***40] in this State is the authority, under certain circumstances, to make arrests without an arrest warrant. The boundaries of this particular authority are defined in Maryland Code (1957, 1996 Repl. Vol., 1999 Supp.), Article 27, § 594B. As Mr. Okwa was arrested for disorderly conduct, a misdemeanor, subsections (a) & (b) of the statute are applicable to the present case. These subsections provide:

   (a) Arrest for crime committed in presence of officer. -- A police officer may arrest without a warrant any person who commits, or attempts to commit, any felony or misdemeanor in the presence of, or within the view of, such officer. [*191]

   (b) Arrest for crime apparently committed in presence of officer. -- A police officer who has probable cause to believe that a felony or misdemeanor is being committed in the officer's presence or within the officer's view, may arrest without a warrant any person whom the officer may reasonably believe to have committed such offense.
 
In part III. B. of this opinion, we held that for the purposes of summary judgment a trier of fact reasonably could infer from the facts alleged by Appellants that Appellees did not have probable cause to arrest Mr. [***41] Okwa for disorderly conduct. One consequence of this conclusion is that, without probable cause, Appellees did not have legal authority to arrest Mr. Okwa pursuant to § 594B(b).

   We now consider Appellees' legal authority to arrest Mr. Okwa under § 594B(a). As alluded to earlier, the question is not simply whether Mr. Okwa was committing the misdemeanor of disorderly conduct in the presence of Appellees. Our task is slightly more complex. In the procedural posture of this case, we must resolve as a matter of law whether a trier of fact looking at the facts in the light most favorable to Appellants could infer reasonably that Mr. Okwa was not committing disorderly conduct. See Md. Rule 2-501(e); Green, 355 Md. at 501, 735 A.2d at 1047; Baltimore Gas and Elec. Co., 338 Md. at 43, 656 A.2d at 311; Natural Designs, Inc., 302 Md. at 62, 485 A.2d at 671. We answer this question in the affirmative.

   Looking at the facts in the light most favorable to Appellants, they establish that Mr. Okwa raised his voice during his attempt to settle a facially valid mercantile dispute with an airline employee. The airline employees summoned Officers[***42] Potter and Harper to come to the ticket counter. The officers directed Mr. Okwa to leave the area. Admittedly, he did not collect his belongings immediately and withdraw when the officers directed him to do so, but, without more, this is not enough to support the conclusion that Mr. Okwa committed the crime of disorderly conduct in the presence of Officers Potter and Harper. See Dennis, 342 Md. at 203, 674 A.2d at 931. A measure of distinction exists between acceptable assertiveness [*192] and disorderly conduct. We think Appellants are entitled to have a fact-finder resolve this distinction. n13

n13 See note 12.

   IV. CONSTITUTIONAL CLAIMS

   A.

   As an initial matter, before discussing the substance of the Circuit Court's findings [**135] regarding Appellants' counts brought under 42 U.S.C. § 1983, n14 we must dispose of a procedural question raised by Appellees. Appellees contend that the § 1983 count was dismissed properly by the trial court because Appellants incorrectly[***43] brought that count against the officers "in their official capacity." Appellees point out that § 1983 actions may only be charged against a "person" and that a state police officer sued in his or her official capacity is not a "person" as that term has been interpreted in the federal statute. Thus, Appellees conclude that the § 1983 claim cannot be maintained. Appellees' fundamental legal propositions are correct, but they misapply those principles to the allegations of the amended complaint in the present case.

n14 All subsequent references to 42 U.S.C. § 1983 shall appear as § 1983.

   Section 1983 permits a plaintiff to recover damages when an individual, acting under the color of state law, transgresses a federally created right of the plaintiff. See Howlett by and through Howlett v. Rose, 496 U.S. 356, 358, 110 S. Ct. 2430, 2433, 110 L. Ed. 2d 332, 342 (1990). n15 The text of the statute and cases analyzing § 1983 actions dictate that a defendant in a § 1983 action[***44] must be a "person." See Ashton, [*193] 339 Md. at 110, 660 A.2d at 466; Ritchie v. Donnelly, 324 Md. 344, 354, 597 A.2d 432, 437 (1991)(and cases cited therein). A state public official, sued in his or her official capacity, is not considered a "person" when a plaintiff brings a § 1983 action for monetary damages. n16 The purpose behind placing state officials sued in their official capacities out of range of a § 1983 claim is that such a suit, in essence, is a suit against the state, which is not a permissible defendant in a § 1983 action. See Howlett by and through Howlett, 496 U.S. at 365, 110 S. Ct. at 2437, 110 L. Ed. 2d at 346. If the plaintiff prevails, the state treasury, not the state official personally, will be responsible for paying the assessed damages. See DiPino, 354 Md. at 46, 729 A.2d at 369; Ritchie, 324 Md. at 359-60, 597 A.2d at 439. In Ritchie, we explained why state officials cannot be sued in their official capacity as follows:

   "obviously, state officials literally are persons. But a suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official's office. . . . As such, it is no different from a suit against the state itself. . . .We see no reason to adopt a different rule in the present context, particularly when such a rule would allow petitioner to circumvent congressional intent by a mere pleading device."

n15 Section 1983 provides, in pertinent part:

   Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

[***45] 

n16 An action for injunctive relief brought pursuant to § 1983 may be maintained against a state official or state employee regardless of which capacity the state official or employees is sued. See Ritchie, 324 Md. at 356, 597 A.2d at 437 (citing Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 n. 10, 109 S. Ct. 2304, 2311, n. 10, 105 L. Ed. 2d 45, 58, n. 10 (1989)).

 
Ritchie, 324 Md. at 355, 597 A.2d at 437 (quoting Will v. Michigan Dept. of State Police, 491 U.S. 58, 71, 109 S. Ct. 2304, 2311, 105 L. Ed. 2d 45, 58 (1989)).

   State officials, however, may[***46] be sued in their individual or personal capacity. See Kentucky v. Graham, 473 U.S. 159, 165, 105 S. Ct. 3099, 3105, 87 L. Ed. 2d 114, 121 (1985); DiPino, 354 Md. at 46, 729 A.2d at 369; Ashton, 339 Md. at 111, 660 A.2d at 467. To establish personal liability upon a state official, a plaintiff must show that the official, while [*194] acting under the color of state law, caused the [**136] deprivation of a federally recognized right. See Kentucky v. Graham, 473 U.S. at 166, 105 S. Ct. at 3105, 87 L. Ed. 2d at 122.

   We find no merit in Appellees' argument on this issue. As stated above, to satisfy the pleading requirements of a § 1983 action, Appellants are required to allege that Appellees acted under the color of state law. See Kentucky v. Graham , 473 U.S. at 165, 105 S. Ct. 3105, 87 L. Ed. 2d at 121. Appellants attempt to satisfy at least the pleading requirement is represented, in part, by their allegations that "defendants, Harper, Potter and Gernert, acting in their capacities as police officers" were investigating the dispute between Mr. Okwa and airline personnel and that "all actions taken and performed by[***47] the defendants, Harper, Potter and Gernert, . . . were done by the defendants . . . as agents, servants, and/or employees of the State of Maryland." Appellees' suggestion that these excerpts somehow do double duty to transform Appellants' § 1983 claim into one brought against the Appellees in their official capacity is completely unfounded.

   Moreover, Appellees' argument oversimplifies and misinterprets Appellants' allegations in this case. The statements, taken from the amended complaint, do not convince us that Appellants brought suit against Appellees in their official capacity. We have stated in the past that "a § 1983 action against a government officer does not become an official capacity action simply because of the labels used by the parties." Ritchie, 324 Md. at 361, 597 A.2d at 440. A reviewing court must look to the substance of the allegations and the progression of the claim to determine the precise nature of the action. See generally DiPino, 354 Md. at 47, 729 A.2d at 369. If from either the factual bases of the plaintiff's § 1983 claim or from the evidence offered by the plaintiff, it appears that the defendant is alleged to have[***48] implemented a formal policy or custom of the state, then the action may be classified as an official capacity action. See id. Stated differently, when the state is the "moving force" behind the defendant's alleged conduct, the claim is one brought against the [*195] state official in their official capacity. See Kentucky v. Graham, 473 U.S. at 166, 105 S. Ct. at 3105, 87 L. Ed. 2d at 122. When it appears, however, from the pleadings and the evidence offered, that the defendant is alleged to have acted on his own initiative and not in conformity with state policy, the claim should be deemed independent in nature. See DiPino, 354 Md. at 47, 729 A.2d at 369. Cf. Ashton, 339 Md. at 112, 660 A.2d at 468, (citing Hafer v. Melo, 502 U.S. 21, 112 S. Ct. 358, 116 L. Ed. 2d 301 (1991))("a state official, who was not a § 1983 "person" in her official capacity, could nonetheless be sued under § 1983 in her individual capacity on the basis of her official acts").

   This approach comports with the majority of federal courts that have considered the question of whether a § 1983 action is one charged against defendants in their official[***49] or individual capacities. In Biggs v. Meadows, 66 F.3d 56 (4th Cir. 1995), the complaint did not state whether a § 1983 claim brought against North Carolina state prison officials was filed against them in their official or individual capacities. The trial court granted the defendant's motion to dismiss based on the presumption that § 1983 defendants are sued in their official capacity unless the complaint states explicitly that the claim was brought against the defendants individually. See Biggs, 66 F.3d at 59-60.

   The United States Court of Appeals rejected the presumption applied by the trial court. Instead, the Court held that the better reasoned approach, as well as the majority view, was to examine the substance of the proceedings, rather than focus exclusively on the form of the pleading, to determine the nature of the action. See id. at 59. The Court stated:

   when a plaintiff does not allege capacity specifically, the court must examine the nature of the plaintiff's claims, the relief [**137] sought, and the course of proceedings to determine whether a state official is being sued in a personal capacity. One factor indicating that[***50] suit has been filed in such a manner might be the plaintiff's failure to allege that the defendant acted in accordance with a governmental policy or custom, or the lack of indicia of such a policy or custom on [*196] the face of the complaint. Another indication that suit has been brought against a state actor personally may be a plaintiff's request for compensatory or punitive damages, since such relief is unavailable in official capacity suits. The nature of any defenses raised in response to the complaint is an additional relevant factor. Because qualified immunity is available only in a personal capacity suit, the assertion of that defense indicates that the defendant interpreted the plaintiff's action as being against him personally. Throughout, the underlying inquiry remains whether the plaintiff's intention to hold a defendant personally liable can be ascertained fairly.
 
Id. at 61 (citations omitted). See also Frank v. Relin, 1 F.3d 1317, 1326 (2d Cir. 1993); Price v. Akaka, 928 F.2d 824, 828 (4th Cir. 1990); Conner v. Reinhard, 847 F.2d 384, 394 (7th Cir. 1988).

   Utilizing this reasoning, we first shall consider[***51] the substance of the allegations in Appellants' § 1983 count. They assert that through Appellees' "conduct and egregious actions, and their use of unnecessary and excessive force in effectuating his unlawful arrest," Mr. Okwa was stripped of his civil rights. More specifically, Mr. Okwa states in his affidavit, "I was forcibly put to the ground, and either Gernert or Harper struck me in the head and neck, and Potter twisted my thumbs." Appellants do not attribute specifically these actions to Appellees in their individual capacity, but neither party contends, understandably so, that such use of force to make an arrest is a standard custom or practice advanced by the State of Maryland or the Maryland Transportation Authority. The substance of these allegations clearly focuses on the independent activities of Appellees as they arrested Mr. Okwa.

   As we explained earlier, the form and labels employed by the parties in respectively instituting and defending a § 1983 action generally may not be used as the sole determinative factor in classifying the nature of a § 1983 action. See DiPino, 354 Md. at 47, 729 A.2d at 369; Ritchie, 324 Md. at [*197] 361, 597 A.2d at 440.[***52] These factors, however, may provide further guidance as to the intentions of the parties in litigating the action. Looking to the form of Appellants' § 1983 claim and Appellees' defenses, we are further persuaded that the claim should be treated as an individual capacity action. In Appellants' amended complaint, they seek punitive damages for the § 1983 violations in the amount of $20,000,000. Because punitive damages are not available in an official capacity action, Appellants' requests for such damages support an inference that they intended to sue Appellees in their individual capacity. See DiPino, 354 Md. at 47, 729 A.2d at 369.

   Throughout the course of these proceedings, Appellees have claimed that they are entitled to qualified immunity. Qualified immunity may only be asserted as a defense to an individual capacity suit. See DiPino, 354 Md. at 47, 729 A.2d at 369 See also Kentucky v. Graham, 473 U.S. at 166-67, 105 S. Ct. at 3105, 87 L. Ed. 2d at 122. Appellees assertion of this immunity signals to us that they contemplated, at least alternatively, that they were sued as individuals. Thus, they will not be prejudiced unfairly[***53] by our view that the § 1983 count is an individual capacity claim. See Biggs, 66 F.3d at 61. In sum, the substance of the § 1983 claim in this case demonstrates that Appellants sued Appellees as individuals.

   We now address the Circuit Court's grant of summary judgment regarding Appellants' § 1983 counts. The [**138] Circuit Court granted summary judgment because, in its view, Appellees "enjoy the privilege of immunity and did not act [O>not act<O] with malice to lift the bar of such immunity." The Court further concluded that Appellants failed " to allege facts sufficient to lift the bar of immunity in that they have not proved that [they] were deprived of a right or privilege secured by the Constitution." The Court erred in two respects. The Circuit Court first erred by relying on its finding that Appellees "did not act with malice" as a ground for finding them immune from the § 1983 count. Immunity from a § 1983 claim, as well as all the other complex and confusing facets of § 1983 actions, is governed by federal law. See Howlett By [*198]and Through Howlett, 496 U.S. at 375, 110 S. Ct. at 2442, 110 L. Ed. 2d at 353; DiPino, 354 Md. at 46, 729 A.2d at 369;[***54] Ritchie, 324 Md. at 353, 597 A.2d at 436. Qualified immunity from § 1983 claims is provided to government officials as a result of a balancing of competing interests. The need to provide a legal means to vindicate a citizen's federally recognized rights when they are transgressed by government actors is measured against the costs of necessarily inhibiting government officials in the discharge of their occupational duties, including the time spent defending unfounded claims. See Anderson v. Creighton, 483 U.S. 635, 638, 107 S. Ct. 3034, 3038, 97 L. Ed. 2d 523, 529-30 (1987). In developing the test for qualified immunity under a § 1983 action, the Supreme Court disposed of the previously recognized subjective element of the defense. The Court determined that requiring government officials to establish a lack of malice was too lofty of a burden to meet at the summary judgment phase of litigation and, therefore, incompatible with the Court's desire to dispose of unsubstantiated claims early in the gestation of a case. See Harlow v. Fitzgerald, 457 U.S. 800, 817-18, 102 S. Ct. 2727, 2738, 73 L. Ed. 2d 396, 410 (1982); Shoemaker v. Smith, 353 Md. at 158-60, 725 A.2d at 557-58 [***55](discussing the Supreme Court's abrogation of the subjective element for qualified immunity under § 1983 claims). Under the recognized test for qualified immunity, the subjective intentions of a government official play no role in the analysis and the Circuit Court erred in factoring malice into the § 1983 immunity equation. See Shoemaker, 353 Md. at 159, 725 A.2d at 558.

   Justice Scalia, writing for the Court in Anderson, summarized the analysis to be undertaken in ascertaining whether a government actor is immune from a § 1983 claim. He stated:

   our cases have . . . provided government officials performing discretionary functions with a qualified immunity, shielding them from civil damages liability as long as their actions could reasonably have been thought consistent with the rights they are alleged to have violated. Somewhat more concretely, whether an official protected by qualified immunity may be held personally liable for an allegedly [*199] unlawful official action generally turns on the 'objective legal reasonableness' of the action . . . assessed in light of the legal rules that were 'clearly established' at the time it was taken.
 
Anderson, 483 U.S. at 639, 107 S. Ct. at 3038, 97 L. Ed. 2d at 530[***56] (citations omitted). See Harlow, 457 U.S. at 818, 102 S. Ct. at 2738, 73 L. Ed. 2d at 410 ("government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known").  See also Kentucky v. Graham, 473 U.S. at 166-67, 105 S. Ct. at 3105, 87 L. Ed. 2d at 122; Slattery v. Rizzo, 939 F.2d 213, 215 (4th Cir. 1991); Ashton, 339 Md. at 111, 660 A.2d at 467.

   The second error committed by the Circuit Court was concluding, as a matter of law at the summary judgment stage, that Appellees possess qualified immunity [**139] from Appellants' § 1983 cause of action. In determining whether Appellees were entitled to qualified immunity from Appellants' § 1983 claim we first look to the relevant "legal rules that were 'clearly established' at the time" which governed Appellees actions during the arrest. Anderson, 483 U.S. at 639, 107 S. Ct. at 3038, 97 L. Ed. 2d at 530. See Slattery, 939 F.2d at 216. Appellants allege that[***57] Appellees used excessive force in arresting Mr. Okwa, so our inquiry focuses on a police officer's right to use force when facilitating an arrest.

   The Supreme Court has long recognized the right of police officers to take necessary measures and use some degree of force when arresting a suspected defendant. See Graham v. Connor, 490 U.S. 386, 396, 109 S. Ct. 1865, 1871-72, 104 L. Ed. 2d 443, 455 (1989)(citing Terry v. Ohio, 392 U.S. 1, 22-27, 88 S. Ct. 1868, 1880-1883, 20 L. Ed. 2d 889, 906-09(1967)). This right to use a certain degree of force must be carefully analyzed in light of "the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting [*200] arrest." Graham v. Connor, 490 U.S. at 396, 109 S. Ct. at 1872, 104 L. Ed. 2d at 455. See also Slattery, 939 F.2d at 216. In Graham v. Connor, the Court explained the proper perspective from which we must view a police officer's use of force:

   The "reasonableness" of a particular use of force must be judged from the perspective[***58] of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. . . . with respect to a claim of excessive force, the same standard of reasonableness at the moment applies: Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates the Fourth Amendment. The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments--in circumstances that are tense, uncertain, and rapidly evolving--about the amount of force that is necessary in a particular situation. 
 
Graham v. Connor, 490 U.S. at 396-97, 109 S. Ct. at 1872, 104 L. Ed. 2d at 455-56. See also Elliott v. Leavitt, 99 F.3d 640, 642 (4th Cir. 1996).

   Keeping this perspective in mind, we consider the record before the Circuit Court to assess whether Appellees' use of force was reasonable at the time they arrested and detained Mr. Okwa. Viewing the facts before the trial court in the light most favorable to Appellants, it is plainly evident that the Circuit Court erred in finding Appellees immune from the § 1983 cause of action.

   Mr. Okwa stated in his affidavit that after[***59] he was dragged out of the airport terminal he was forcibly put to the ground and struck in the head and neck by either Officer Harper or Gernert. While on the ground, Officer Potter twisted his cuffed hands by his thumbs. Mr. Okwa insisted that during the entire incident he did not resist or provoke Appellees so as to justify such action. He was an unarmed man in a relatively sparsely populated part of an airport terminal that was confronted and restrained by three, and later more, officers. Under the facts as alleged by Appellants, Mr. Okwa posed no [*201] apparent danger to the officers or the public. For purposes of summary judgment, Appellees were not entitled, as a matter of law, to qualified immunity for their use of force against Mr. Okwa.
 
B.

   With respect to Appellants' claim brought under Article 24 of Maryland's Declaration of Rights, the Circuit Court also granted Appellees summary judgment. The Court found that Appellees arrested and detained Mr. Okwa in accordance with the Maryland Constitution. Although our legal analysis for Appellants' Maryland Constitutional claim differs [**140] somewhat from our analysis of their claims brought under the federal constitution through § 1983, [***60] we reach the same conclusion. The Circuit Court erred in granting summary judgment to Appellees.

   This Court has recognized that a common law action for damages lies when an individual is deprived of his or her liberty in violation of the Maryland Constitution. See DiPino, 354 Md. at 50, 729 A.2d at 371; Ashton, 339 Md. at 101, 660 A.2d at 462; Ritchie, 324 Md. at 369, 597 A.2d at 444; Widgeon v. Eastern Shore Hosp. Center, 300 Md. 520, 537-38, 479 A.2d 921, 930 (1984)(answering affirmatively federal question inquiry regarding the existence of an action for damages for violations of Articles 24 and 26 of Maryland's Declaration of Rights). At the onset we note some of the features that distinguish an action for damages brought for violations of Article 24 from one brought under § 1983. A state public official alleged to have violated Article 24, or any article of the Maryland Declaration of Rights, is not entitled to qualified immunity. See Ritchie, 324 Md. at 373, 597 A.2d at 446; Clea v. Mayor and City Council of Baltimore, 312 Md. 662, 684-85, 541 A.2d 1303, 1314 (1988). In Clea,[***61] we explained:

   constitutional provisions like Articles 24 or 26 of the Maryland Declaration of Rights, or Article III, § 40, of the Maryland Constitution, are specifically designed to protect citizens against certain types of unlawful acts by government [*202] officials. To accord immunity to the responsible government officials, and leave an individual remediless when his constitutional rights are violated, would be inconsistent with the purpose of the constitutional provisions.
 
312 Md. at 684-85, 541 A.2d at 1314. In addition, for violations of the Maryland Constitution, we do not follow the federally recognized distinction between official and individual capacity actions. See Ritchie, 324 Md. at 370, 597 A.2d at 445. This Court has imposed liability on state officials for violating an individual's Maryland Constitutional rights when the official has acted in furtherance of a state policy and custom, as well as for actions taken on his own initiative. See id. In part III. C. of this opinion, we concluded that, for the purpose of summary judgment, Appellees did not have legal authority to arrest Mr. Okwa for disorderly conduct. On this basis alone, [***62] we similarly conclude that summary judgment was granted improperly on Appellants' Article 24 claims because an arrest without legal authority qualifies as "an unlawful act by a government official." Clea, 312 Md. at 684-85, 541 A.2d at 1314.

   Our analysis would normally end at this point, however, because the parties, in their briefs, elected to take a different route around this issue, we shall offer a responsive analysis for guidance on remand. The parties argue that, because Appellants' Article 24 claims are essentially excessive force claims implicating similar rights protected by the Fourteenth Amendment to the United States Constitution, we should resolve the issue using federal jurisprudence. In prior cases, when a right protected under Maryland's Constitution is also secured under a companion provision of the U.S. Constitution, Maryland courts often have looked to federal cases interpreting the parallel federal provision. See Kirsch v. Prince George's County, 331 Md. 89, 97-98, 626 A.2d 372, 376 (1993)(resolving a claim brought under Article 24 of the Declaration of Rights using federal cases decided under the Fourteenth Amendment to the U. [***63] S. Constitution); Murphy v. Edmonds, 325 Md. 342, 354, 601 A.2d 102, 108 (1992)("United States Supreme Court opinions concerning the Equal Protection Clause of the Fourteenth [*203] Amendment 'are practically direct authorities' with regard to Article 24 of the Declaration of Rights"); Hargrove v. Maryland Retirement System, 310 Md. 406, 416, 529 A.2d 1372, 1377 (1987)("Article 24 of the Maryland Declaration of Rights and the Fourteenth Amendment's Equal Protection Clause . . . generally mean the same and apply in like manner"); Lodowski [**141] v. State, 307 Md. 233, 247, 513 A.2d 299, 307 (1986)("we adhere to the construction the Supreme Court has placed on the like provision of the Sixth Amendment" to interpret that right under Article 21 of Maryland's Declaration of Rights); Williams v. Prince George's County, 112 Md. App. 526, 547, 685 A.2d 884, 895 (1996)("the essential analysis . . . is the same under Articles 24 and 26 of the Maryland Constitution as that under the Fourth Amendment to the United States Constitution").

   Article 24 of the Maryland's Declaration of Rights provides:

   that no man ought to be taken or imprisoned[***64] or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or, in any manner, destroyed, or deprived of his life, liberty or property, but by the judgment of his peers, or by the Law of the land.
 
The Maryland Constitution does not contain an express equal protection clause, but we nonetheless have held that the principles of equal protection are impliedly guaranteed through Article 24. See Kirsch, 331 Md. at 96, 626 A.2d at 375; Murphy, 325 Md. at 353, 601 A.2d at 107. See also In re Easton, 214 Md. 176, 187, 133 A.2d 441, 447 (1957). Because, as the parties point out, Article 24 is Maryland's analogue to the Fourteenth Amendment of the United States Constitution we may look to federal opinions interpreting the Fourteenth Amendment for guidance when a citizen claims to have been subjected to unreasonable or arbitrary discrimination by a government official. See Kirsch, 331 Md. at 97, 626 A.2d at 376.

   In Appellants' Article 24 count, they incorporate the allegations that Appellees used excessive force when they arrested [*204] and detained Mr. Okwa and that their "conduct was characterized by race-based[***65] discrimination, an evil motive, ill will and physical aggression demonstrating an intent to injure" Mr. Okwa. To analyze those allegations we return to the jurisprudence of the United States Supreme Court.
 
In Graham v. Connor, the Court reviewed a claim brought against North Carolina police officers alleging that the police had used excessive force in making an investigatory stop in violation of the plaintiff's rights secured to him under the Fourteenth Amendment to the United States Constitution and § 1983.  490 U.S. at 390, 109 S. Ct. at 1868, 104 L. Ed. 2d at 451. The Court first recognized that "all claims that law enforcement officers have used excessive force - - deadly or not - - in the course of an arrest, . . . should be analyzed under the Fourth Amendment and its 'reasonableness' standard." Graham v. Connor, 490 U.S. at 395, 109 S. Ct. at 1871, 104 L. Ed. 2d at 454. As stated supra, to examine a police officer's use of force we take the perspective of a reasonable officer on the scene of the incident at issue and pay close attention to the particular facts of each case. See Graham v. Connor 490 U.S. at 396, 109 S. Ct. at 1872, 104 L. Ed. 2d at 455.[***66] We consider whether the plaintiff posed an immediate danger to the public or the police and whether the plaintiff was resisting arrest, taking into account that due to the exigency of some circumstances, police officers may be forced to make split second decisions based on incomplete facts. See Graham v. Connor at 490 U.S. at 396-97, 109 S. Ct. at 1872, 104 L. Ed. 2d at 455-56. Similar to our holding in part IV. A. of this opinion, that viewing the facts before the Circuit Court, Appellees use of force in arresting and detaining Mr. Okwa could be viewed as unreasonable if Mr. Okwa's allegations were assumed as proven and credited by a fact-finder, the Circuit Court's grant of summary judgment on the Article 24 count was improper.

   V.

   The Circuit Court dismissed Appellants' loss of consortium counts because the claims were dependent on Appellants' substantive causes of action, on which the Court granted [*205] summary judgment to Appellees. [**142] Because we hold that the Circuit Court erred in granting summary judgment on the counts addressed supra, we concomitantly conclude that the Court erred in dismissing the loss of consortium counts.
 
JUDGMENT OF THE CIRCUIT COURT FOR [***67]  ANNE ARUNDEL COUNTY, AS TO MICHAEL G. HARPER, KIMBERLY POTTER, AND WILLIAM H. GERNERT, REVERSED. CASE REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS. COSTS TO BE PAID BY APPELLEES. 

Fowlkes v. Housing Authority 
Pet. Docket No. 140, September Term, 2000
 
COURT OF APPEALS OF MARYLAND
 
359 Md. 334; 753 A.2d 1031; 2000 Md. LEXIS 411

 June  26, 2000, Decided

NOTICE: 

  [*1]  DECISION WITHOUT PUBLISHED OPINION 

PRIOR HISTORY:  (No. C-1999-53949-CO, Circuit Court for  Anne Arundel  County).

OPINION: Petition for Writ of Certiorari denied. 

Laurenzano v. Russell 
Pet. Docket No. 105, September Term, 2000
 
COURT OF APPEALS OF MARYLAND
 
359 Md. 334; 753 A.2d 1032; 2000 Md. LEXIS 423

 June  26, 2000, Decided

NOTICE: 

  [*1]  DECISION WITHOUT PUBLISHED OPINION 

PRIOR HISTORY:  (No. C-1999-54292, Circuit Court for  Anne Arundel  County).

OPINION: Petition for Writ of Certiorari denied. 

Wengert, George Thomas v. State 
Pet. Docket No. 68, September Term, 2000
 
COURT OF APPEALS OF MARYLAND
 
359 Md. 333; 753 A.2d 1031; 2000 Md. LEXIS 397

 June  23, 2000, Decided

NOTICE: 

  [*1]  DECISION WITHOUT PUBLISHED OPINION 

PRIOR HISTORY:  (No. K-1999-854, Circuit Court for  Anne Arundel  County).

OPINION: Petition for Writ of Certiorari granted. 

EDDIE ADAMSON v. CORRECTIONAL MEDICAL SERVICES, INC. 
No. 78, September Term, 1999
 
COURT OF APPEALS OF MARYLAND
 
359 Md. 238; 753 A.2d 501; 2000 Md. LEXIS 324

 June  14, 2000, Filed

   SUBSEQUENT HISTORY: [***1] As Corrected July 5, 2000.

PRIOR HISTORY: Certiorari to the Circuit Court for  Anne Arundel  County. Case # C-1999-52426-CN. Eugene M. Lerner, JUDGE.

DISPOSITION: JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY REVERSED; CASE REMANDED TO THE CIRCUIT COURT WITH DIRECTIONS THAT IT REVERSE THE JUDGMENT OF THE DISTRICT COURT OF MARYLAND AND REMAND THIS MATTER TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS; COSTS TO BE PAID BY RESPONDENT. 
CASE SUMMARY 

PROCEDURAL POSTURE:  Petitioner inmate was granted certiorari from Circuit Court for Anne Arundel County (Maryland) to consider whether Prisoner Litigation Act, Md. Code Ann., Cts. & Jud. Proc. § 5-1001 et seq. (Supp. 1999), required prisoner to exhaust administrative remedies before suing in state court against private corporation contracted to provide medical care to state inmates.

OVERVIEW:  Petitioner inmate sued respondent, a private medical provider under contract with the state to provide services to prisoners in state custody, alleging breach of contract and negligence from inadequate medical services. District court dismissed the suit, holding petitioner had not exhausted administrative remedies mandated by the Prisoner Litigation Act (PLA), Md. Code Ann., Cts. & Jud. Proc. § 5-1001 et seq. (Supp. 1999). Petitioner appealed. The court reversed and remanded with instructions, holding a plain reading of the PLA and Md. Code Ann. Correct. Servs. § 10-201 et seq. (1999 Repl. Vol.), legislative history, and the Inmate Grievance Office interpretation of its role in prisoner claims against private contractors overwhelmingly demonstrated the exhaustion requirement did not apply to lawsuits against private contractors for medical malpractice.

OUTCOME:  Court answered certified question in negative and reversed, holding plain reading of statutes, meshed with legislative history and agency's interpretation of its role in prisoner claims against private contractors overwhelmingly demonstrated administrative exhaustion requirement did not apply to lawsuits filed by inmates against private contractors alleging medical malpractice.

CORE TERMS:  prisoner, inmate, grievance, contractor, civil action, administrative remedy, administrative remedies, exhausted, malpractice, frivolous, judicial review, exhaustion requirement, lawsuit, directive, medical malpractice, filing fee, custodian, exhaustion, prison, confinement, subtitle, conditions of confinement, et seq, monetary damages, medical care, civil rights, confined, administrative procedures, legislative history, exhaust

CORE CONCEPTS -  

Civil Procedure: Pleading & Practice: Defenses, Objections & Demurrers: Motions to Dismiss
In reviewing the underlying grant of a motion to dismiss, the court must assume the truth of the well-pleaded factual allegations of the complaint, including the reasonable inferences that may be drawn from those allegations.

Civil Procedure: Pleading & Practice: Pleadings: Construction
The facts comprising the cause of action must be pleaded with sufficient specificity. Bald assertions and conclusory statements by the pleader will not suffice.

Civil Procedure: Pleading & Practice: Defenses, Objections & Demurrers: Motions to Dismiss
Dismissal is proper only if the alleged facts and permissible inferences, viewed in the light most favorable to plaintiff, would, if proven, nonetheless fail to afford relief to the plaintiff.

Public Health & Welfare Law: Social Services: Institutionalized Individuals
Criminal Law & Procedure: Postconviction Proceedings: Imprisonment & Prisoner Rights
Claims arising from prison-wide deprivations, and deprivation of medical care to an individual prisoner, are actions addressing "conditions of confinement." The medical care a prisoner receives is just as much a "condition" of his confinement as the food he is fed, the clothes he is issued, the temperature he is subjected to in his cell, and the protection he is afforded against other inmates.

Administrative Law: Separation & Delegation of Power: Legislative Controls
Because they are established by legislative bodies, administrative agencies derive their power from enabling statutes that govern them. An administrative agency is a creature of statute, which has no inherent powers and its authority thus does not reach beyond the warrant provided it by statute.

Administrative Law: Judicial Review: Standards of Review: General Rules
Generally, absent express legislative intent, the role of a reviewing court is to determine whether an agency is empowered to decide the issue in controversy and whether the agency's procedures can be performed within the confines of the traditional standards of procedural and substantive fair play.

Administrative Law: Judicial Review: Standards of Review: General Rules
When it is doubtful that the Maryland general assembly has vested powers in an agency to decide certain issues, the agency's ability to exercise that power will be circumscribed by the courts.
 
Governments: Legislation: Construction & Interpretation
Every quest to discover and give effect to the objectives of the legislature begins with the text of the statute. If the legislature's intentions are evident from the text of the statute, inquiry normally will cease and the plain meaning of the statute will govern.

Governments: Legislation: Construction & Interpretation
The plain-meaning rule is elastic, rather than cast in stone. If persuasive evidence exists outside the plain text of the statute, the courts do not turn a blind eye to it. Courts often look to the legislative history, an agency's interpretation of the statute, and other sources, for a more complete understanding of what the Maryland general assembly intended when it enacted particular legislation. In so doing, courts may also consider the particular problem or problems the legislature was addressing, and the objectives it sought to attain.

Governments: Legislation: Construction & Interpretation
Courts should first attempt to ascertain the legislature's intent from the statutory language, reading pertinent parts of the legislative language together, giving effect to all of those parts if they can, and rendering no part of the law surplusage.

Public Health & Welfare Law: Social Services: Institutionalized Individuals
Administrative Law: Judicial Review: Reviewability: Exhaustion
Criminal Law & Procedure: Postconviction Proceedings: Imprisonment & Prisoner Rights
See Md. Code Ann., Cts. & Jud. Proc. § 5-1001 (Supp. 1999).

Public Health & Welfare Law: Social Services: Institutionalized Individuals
Administrative Law: Judicial Review: Reviewability: Exhaustion
Criminal Law & Procedure: Postconviction Proceedings: Imprisonment & Prisoner Rights
See Md. Code Ann., Correct. Servs. § 10-206.

Administrative Law: Agency Adjudication: Prehearing Activity
Criminal Law & Procedure: Postconviction Proceedings: Imprisonment & Prisoner Rights
See Md. Code Ann., Correct. Servs. § 10-207(b), (c).

Administrative Law: Agency Adjudication: Hearings
Criminal Law & Procedure: Postconviction Proceedings: Imprisonment & Prisoner Rights
See Md. Code Ann., Correct. Servs. § 10-208(b), (c).

Administrative Law: Agency Adjudication: Review of Initial Decisions
Criminal Law & Procedure: Postconviction Proceedings: Imprisonment & Prisoner Rights
See Md. Code Ann., Correct. Servs. § 10-209(c).

Administrative Law: Judicial Review: Reviewability: Jurisdiction & Venue
Criminal Law & Procedure: Postconviction Proceedings: Imprisonment & Prisoner Rights
See Md. Code Ann., Correct. Servs. § 10-210.
 
Administrative Law: Judicial Review: Reviewability: Exhaustion
Criminal Law & Procedure: Postconviction Proceedings: Imprisonment & Prisoner Rights
It is clear that Md. Code Ann., Correct. Servs. § 10-201 et seq., establishes for covered inmate grievances an administrative remedy through the Inmate Grievance Office that is primary, but not exclusive, and which must be invoked and exhausted before an inmate ordinarily may seek review of an adverse decision.

Administrative Law: Judicial Review: Reviewability: Exhaustion
Criminal Law & Procedure: Postconviction Proceedings: Imprisonment & Prisoner Rights
See Md. Code Ann., Cts. & Jud. Proc. § 5-1003.

Civil Procedure: Justiciability: Exhaustion of Remedies
Criminal Law & Procedure: Postconviction Proceedings: Imprisonment & Prisoner Rights
See Md. Code Ann., Cts. & Jud. Proc. § 5-1004.

Civil Procedure: Sanctions: Baseless Filings
Criminal Law & Procedure: Postconviction Proceedings: Imprisonment & Prisoner Rights
See Md. Code Ann., Cts. & Jud. Proc. § 5-1005.

Administrative Law: Judicial Review: Reviewability: Exhaustion
Criminal Law & Procedure: Postconviction Proceedings: Imprisonment & Prisoner Rights
In addition to exhausting all administrative remedies, the Prisoner Litigation Act, Md. Code Ann., Cts. & Jud. Proc. § 5-1001 et seq. (Supp. 1999), requires prisoners to pay for court costs.

Administrative Law: Judicial Review: Reviewability: Jurisdiction & Venue
Criminal Law & Procedure: Postconviction Proceedings: Imprisonment & Prisoner Rights
The Prisoner Litigation Act, Md. Code Ann., Cts. & Jud. Proc. § 5-1003(a)(3) directs limited exclusivity for the judicial review of an unfavorable disposition of an aggrieved inmate's covered grievance or complaint.

Administrative Law: Judicial Review: Reviewability: Exhaustion
Criminal Law & Procedure: Postconviction Proceedings: Imprisonment & Prisoner Rights
An inmate, having exhausted the administrative remedy, generally may invoke the jurisdiction of the courts in aid of his or her cause solely through the judicial review authorized by Md. Code Ann., Correct. Servs. § 10-210 (b), (c), unless the administrative process resulted in a determination of merit in the complaint or grievance and monetary damages were not available through the administrative process.

Civil Procedure: Costs & Attorney Fees: Litigation Costs
Criminal Law & Procedure: Postconviction Proceedings: Imprisonment & Prisoner Rights
See Md. Code Ann., Cts. & Jud. Proc. § 5-1002.

 Administrative Law: Judicial Review: Reviewability: Exhaustion
See 42 U.S.C.S. 1997e(a).

Administrative Law: Judicial Review: Standards of Review: General Rules
While it is true that an agency's view of the law does not bind the court's interpretation of the statutory scheme, an agency's expertise in its field is particularly persuasive.

Administrative Law: Judicial Review: Standards of Review: General Rules
Governments: Legislation: Construction & Interpretation
In the matter of statutory construction it is well understood that the view taken of a statute by administrative officials soon after its passage is strong, persuasive influence in determining the judicial construction and should not be disregarded except for the strongest and most urgent reasons.

Public Health & Welfare Law: Social Services: Institutionalized Individuals
Criminal Law & Procedure: Postconviction Proceedings: Imprisonment & Prisoner Rights
The Prisoner Litigation Act, Md. Code Ann., Cts. & Jud. Proc. § 5-1001(c), definition of a "civil action" references solely actions against state employees for petitions of mandamus, tort claims, and civil rights violations. Civil actions as they relate to tort claims in particular are defined as any tort claim against a custodian, the custodian's officers or employees, or any employee or official of the Department of Public Safety and Correctional Services.

Criminal Law & Procedure: Postconviction Proceedings: Imprisonment & Prisoner Rights
The Inmate Grievance Office is specifically confined to address and investigate complaints against an official or employee of the Maryland Division of Correction. Md. Code Ann., Correct. Servs. § 10-206.

Torts: Malpractice Liability: Physicians & Healthcare Providers
Medical malpractice claims ordinarily do not rise to the level of violating a prisoner's federal civil rights.

Torts: Malpractice Liability: Physicians & Healthcare Providers
A claim of malpractice is usually a state tort law claim and not an abridgement of a fundamental right under federal constitutional mores.

Administrative Law: Judicial Review: Standards of Review: General Rules
Without proper administrative findings of fact there can be no judicial review. Judicial review procedures prohibit the courts from being fact-finders in such matters.

Administrative Law: Judicial Review: Standards of Review: General Rules
A court's role is to review the facts as found by the expert eye of the administrative agency and to reverse those findings only if they are clearly erroneous.

COUNSEL: ARGUED BY Stephen Z. Meehan, Principal Counsel (David C. Wright, Executive Director, Joseph B. Tetrault, Chief Staff Attorney, Prisoner Rights Information System of Maryland, Inc., on brief) all of Chestertown, MD., FOR PETITIONER.
 
ARGUED BY John A. Bourgeois (Philip M. Andrews of Kramon & Graham, P.A., on brief) all of Baltimore, MD., FOR RESPONDENT.

JUDGES: ARGUED BEFORE Bell, C. J.; Eldridge, Rodowsky, Raker, Wilner, Cathell, and Harrell, JJ. Opinion by Harrell, J.

OPINIONBY: Harrell

OPINION: [*243] [**503]
 
Opinion by Harrell, J.
 
Filed: June 14, 2000

   Mr. Eddie Adamson, Petitioner, is an inmate in the custody of the Maryland Division of Correction ("DOC") of the Maryland Department of Public Safety and Correctional Services ("the Department") and housed at the Maryland House of Correction in Jessup. On 15 July 1998, he filed suit in the District Court of Maryland sitting in Anne Arundel County against Correctional Medical Services, Inc., Respondent, a private medical provider under contract n1 with the State of Maryland to provide such services to prisoners at the Maryland House of Correction. Petitioner alleged breach of contract and negligence with regard to inadequate medical services and claimed $2,500 in damages. The District [***2]Court dismissed the suit holding that Petitioner first had not exhausted administrative remedies mandated by the Prisoner Ligation Act (PLA), Maryland Code (1974, 1998 Repl. Vol., 1999 Supp.), Courts and Judicial Proceedings Article, § 5-1001, et seq.. Petitioner appealed to the Circuit Court for Anne Arundel County. The Circuit Court, also relying on the PLA, granted Respondent's motion to dismiss the appeal. [**504] n2 We granted certiorari to consider the following question:

n1 The contract between the State and Respondent is not part of the record in this case. Moreover, the record does not disclose when Respondent commenced providing medical services at the Maryland House of Correction. Assuming the truth of Petitioner's averments in his complaint, Respondent was the medical care provider as of at least 29 August 1996 and through 15 July 1998 when suit was filed. 

n2 Although the Circuit Court's action took this form, we think the effect of the Court's action was to affirm the judgment of the District Court, both courts having relied on precisely the same ground for disposition. See Md. Rule 7-114(a).

[***3]

    Does the Prisoner Litigation Act, Maryland Code (1974, 1998 Repl. Vol.), Courts and Judicial Proceedings Article, § 5-1001, et seq., require that a prisoner exhaust administrative remedies prior to instituting suit in state court [*244] against a private corporation that is contracted to provide medical care to prisoners in the custody of the Division of Correction?
 
We answer in the negative and reverse.

   I.

   Petitioner alleged as follows in his pro se complaint in the District Court:

   Both named defendants[ n3 ] at the times relevant to the plaintiffs [sic] claim were under contract with the Maryland Division of Correction to provide comprhensive [sic] health care to Maryland State Inmates as he [sic] plaintiff duly being []3rd[] party beneficiary. From August 29, 1996 until the present time both named defendants in the scope of their offices as Health Care providers have recklessly and negligencly [sic] failed to provide adequate medical care for Plaintiff's painful Anterior crucrate [sic] ligarment [sic] repair of his right knee causing continued pain and suffering after the plaintiff has relentlessly saught [sic] adequate medical care to no avail[.]

n3 In addition to Respondent, E.M.S.A. Correctional Care was named as a Defendant, but appears now not to be a party to this matter.

[***4]
 
On the complaint form, the boxes labeled "contract" and "tort" are checked signaling that Petitioner alleged breach of contract and negligence against Respondent. n4 Petitioner claimed damages in the amount of $2,500. The District Court dismissed Petitioner's complaint on the ground that Petitioner [*245] had not exhausted first available administrative remedies before seeking judicial relief, as required by the PLA.

n4 To the extent that Petitioner's complaint in the District Court and his oral argument in the Circuit Court could be construed as seeking judicial direction that he be provided further medical treatment of an unspecified nature, such a claim has been abandoned at this point. The facts presented by the parties in their briefs and at oral argument to this Court relate only to his monetary damage claim for breach of contract and medical malpractice, not to any claim for future medical treatment. We need not decide, therefore, whether a civil action by an inmate that combines allegations of medical malpractice, for which monetary damages alone are sought, with a demand for further treatment presents a different set of claims that, in whole or in part, must endure the PLA administrative exhaustion requirement.

[***5]

   Petitioner, still pro se, appealed to the Circuit Court for Anne Arundel County. At the hearing in that court on Respondent's motion to dismiss the appeal, the parties presented a number of documents, including DOC Directives relating its Administrative Review Procedure (ARP) for inmate grievances and correspondence from the Department's Inmate Grievance Office (IGO), a separate agency within the Department, and the State Attorney General's Office. The correspondence emanated from cases unrelated to the present one, but nonetheless were used and relied on by both parties, without objection, to argue for their respective interpretations of the PLA exhaustion requirement. Two letters were authored by the Executive Director of the IGO. One letter, pre-dating the PLA's enactment, was dated 16 July 1992, and the other was dated 20 November 1998. Both IGO letters, addressed to prisoners that apparently had inquired about the proper procedures for filing claims against private contractors similar to Respondent, indicated the IGO would not entertain such complaints. A third letter, dated 27 January 1999, originated from the Office of the State Attorney General. The letter, signed by an[***6] Assistant Attorney General, was in response to a [**505] request from a judge of the District Court apparently seeking clarification of DOC Directive 185-002, Section IV.C.2 (addressing the ARP), in a different case pending before the District Court of Maryland sitting in Anne Arundel County. n5 The author opined that the DOC's ARP procedure was not available to an inmate asserting negligence against a private medical contractor.

n5 The judicial recipient of the letter was not the same District Court judge who dismissed Petitioner's claim.

   Respondent argued that Petitioner's claim must undergo at least the DOC and perhaps the IGO administrative gauntlet, pursuant to PLA § 5-1001, et seq., before filing a civil action against Respondent in the District or Circuit Court. The court agreed with Respondent and found that Petitioner had [*246] "failed to provide proof that he exhausted the Administrative Remedy Procedure or that, in fact, he exhausted the remedy." The court cited to PLA § 5- 1003, et seq., to support its decision. [***7] n6

n6 The only administrative remedy procedure at issue here, as argued by the parties, are those procedures under the umbrella of the DOC and the IGO. Neither party asserts that other administrative remedies may be available to Petitioner. 

    II.

   In reviewing the underlying grant of a motion to dismiss, we must assume the truth of the well-pleaded factual allegations of the complaint, including the reasonable inferences that may be drawn from those allegations.  Allied Inv. Corp. v. Jasen, 354 Md. 547, 555, 731 A.2d 957, 961 (1999); Stone v. Chicago Title Ins. Co. of Maryland, 330 Md. 329, 333, 624 A.2d 496, 498 (1993); Tafflin v. Levitt, 92 Md. App. 375, 379, 608 A.2d 817, 819 (1992). We have noted that "the facts comprising the cause of action must be pleaded with sufficient specificity. Bald assertions and conclusory statements by the pleader will not suffice." Bobo v. State, 346 Md. 706, 708-09, 697 A.2d 1371, 1372 (1997)(citations omitted). [***8] In the end, "dismissal is proper only if the alleged facts and permissible inferences, so viewed, would, if proven, nonetheless fail to afford relief to the plaintiff." Bobo, 346 Md. at 709, 697 A.2d at 1373. See also Allied Inv. Corp., 354 Md. at 555, 731 A.2d at 961. In sum, because we must deem the facts to be true, our task is confined to determining whether the trial court was legally correct in its decision to dismiss. See Allied Inv. Corp., 354 Md. at 555, 731 A.2d at 961; Bobo, 346 Md. at 709, 697 A.2d at 1373. With the appellate review standard in mind, we consider the legal issue in this case.

   Petitioner, acquiring legal representation following the Circuit Court's ruling, now argues more pointedly that the PLA's administrative exhaustion requirement does not apply to prisoner malpractice claims against private medical providers under contract with the State. He asserts that the PLA [*247]process was designed only to apply to prisoner grievances regarding conditions of confinement against the State of Maryland, the DOC, and its officials and employees. Petitioner reasons that the purpose of the statute was threefold: [***9] to weed out frivolous claims against the State, to conserve judicial resources, and to relieve the burden on the Attorney General of defending an influx of lawsuits filed in state courts following passage of the federal analog to the PLA. He contends that the complaint filed in the District Court does not relate to conditions of his confinement, but rather to an injury (past and ongoing pain and suffering) inflicted by medical treatment or the lack thereof attributable to Respondent. Furthermore, he argues, the PLA was not designed to be used by private contractors as a screening device for prisoner complaints because the available administrative procedures are not equipped to deal with malpractice claims, nor do any such procedures empower the DOC to provide Petitioner with any remedy in the nature of damages.

   [**506] Respondent presents essentially two arguments why Petitioner must exhaust available administrative remedies before filing a civil action in state court. First, Respondent states that under the principles of statutory construction, coupled with the specific legislative history of the statute involved, the PLA's administrative exhaustion requirement plainly encompasses prisoner[***10] malpractice lawsuits filed against private contractors. Respondent focuses in particular on the defined statutory term "civil action," stating:

   Four elements comprise the principal definition of "civil action" under the Act. To be a "civil action," an action must be: (1) a legal action (2) seeking money damages, injunctive relief, or any appeal (3) filed in any court in the State (4) that relates to or involves a prisoner's conditions of confinement. See  § 5-1001(c)(1). Petitioner's actions against [Respondent] in the district court and the circuit court satisfy each of those elements. Petitioner filed his lawsuit against [Respondent] in the district court, then appealed to the circuit court, alleging that [Respondent] "recklessly and negligencly [sic] failed to provide adequate medical care for [*248] the Plaintiff's painful Anterior crucrate ligarment [sic] repair of his right knee. . . ." Plaintiff sought damages of $2,500.00. Certainly this case is a legal action, seeking money damages, filed in a court in this State.

   A crux of Respondent's argument lies in its conception of the statutory term "conditions of confinement." It asserts that Petitioner's malpractice claim [***11]relates to a "condition of confinement" by referencing Supreme Court jurisprudence and several federal court decisions. It states:

   In Wilson v. Seiter, 501 U.S. 294, 115 L. Ed. 2d 271, 111 S. Ct. 2321 (1991), for example, the Court held that claims arising from prison-wide deprivations, and deprivation of medical care to an individual prisoner, were actions addressing "conditions of confinement":

   The medical care a prisoner receives is just as much a "condition" of his confinement as the food he is fed, the clothes he is issued, the temperature he is subjected to in his cell, and the protection he is afforded against other inmates.

    Id. at 303.

   Federal courts have dismissed prisoner lawsuits relating to medical services, construing the [federal Prison Litigation Reform Act] to require prisoners to exhaust all administrative remedies before filing suits relating to "prison conditions."
 
Respondent then cites several federal court cases n7 to support its proposition and notes that the PLA was enacted in 1997 to complement the Federal Prison Litigation Reform Act (PLRA), Pub. L. No. 104-134, 110 Stat. 1321, § 801-10, signed into law on 26 April 1996. The[***12] PLRA was designed to discourage frivolous lawsuits and to slow the tide of lawsuits filed in federal courts for grievances relating to prisoners' confinement. The federal statute used several mechanisms to [*249] achieve these goals, namely to require the payment of a filing fee, to limit the types of actions that may be filed, to limit attorney's fees, to empower judges to determine and dismiss frivolous suits, and to require the exhaustion of administrative remedies before a prisoner may seek independent judicial intervention by way of a civil action. Respondent reasons that since the PLA was formulated after the PLRA and that the federal courts have determined that the delivery of medical services in correctional institutions is a "condition of confinement", Petitioner's lawsuit relates to a "condition of confinement" and thus is subject to the administrative procedures of the DOC, and [**507] perhaps the IGO, through the exhaustion requirement of the PLA.

n7 See Gibbs v. Bureau of Prison Office, 986 F. Supp. 941 (D. Md. 1997); Alexandroai v. California Dep't of Corrections, 985 F. Supp. 968 (S.D. Cal. 1997); Harris v. Gunderman, 30 F. Supp. 2d 664 (S.D.N.Y. 1999); and Perez v. Wisconsin Dep't of Corrections, 182 F.3d 532 (7th Cir. 1999).

[***13]

   Secondly, Respondent asserts that Petitioner is mistaken in his assertion that there is no administrative remedy available to his malpractice claim because the DOC routinely handles prisoner grievances relating to prison medical services. It argues the Administrative Remedy Procedure delineated by the DOC in its written Directives implicitly allows for medical malpractice complaints against private contractors. It points to DOC Directive 185-002, Section IV(C), which states in pertinent part:

   Inmates may seek relief through the Administrative Remedy Procedure for issues which include but are not limited to:

   1. institutional policies and procedures;

   2. medical services;

   3. access to courts;

   4. religious liberties;

   5. lost, damaged, stolen, destroyed, or improperly confiscated property;

   6. use of force;

   7. institutional conditions affecting health, safety, and welfare; and

   8. administration and operation of the Administrative Remedy Procedure.
 
[*250] (Emphasis added). Respondent sees the term "medical services" as all encompassing. It asserts that the medical services referenced in Section IV.C.2. includes malpractice allegations against private contractors. None of[***14] Respondent's arguments convinces us that the PLA exhaustion requirement applies to Petitioner's complaint in the case sub judice.

   A.

   This is a case of first impression in Maryland. n8 The central issue here is whether the PLA administrative exhaustion requirement encompasses prisoner malpractice lawsuits filed against private contractors who provide medical services to prisoners under the control and responsibility of the DOC. We hold that it does not.

n8 We have held previously that an inmate attempting to sue a prison guard for common law tort damages allegedly inflicted in a jail cell battery must exhaust the IGO administrative remedy process before pursuing his tort remedy in court.  McCullough v. Wittner, 314 Md. 602, 608, 552 A.2d 881, 884 (1989). The present case, however, involves an alleged tort-feasor who is not an employee or official of the Department or the DOC. Moreover, McCullough was decided before enactment of the PLA.

   At the outset, we recognize that because they are[***15] "established by legislative bodies, administrative agencies derive their power from enabling statutes that govern them." Department of Econ. and Employment Dev. v. Lilley, 106 Md. App. 744, 759, 666 A.2d 921, 928 (1995). An administrative agency is a "creature of statute, [which] has no inherent powers and its authority thus does not reach beyond the warrant provided it by statute." Holy Cross Hosp. Of Silver Spring, Inc. v. Health Servs. Cost Review Comm'n, 283 Md. 677, 683, 393 A.2d 181, 184 (1978). Generally, absent express legislative intent, the role of this Court is to determine whether an agency is empowered to decide the issue in controversy and whether the agency's procedures can be "performed within the confines of the traditional standards of procedural and substantive fair play." Department of Natural Resources v. Linchester Sand & Gravel Corp., 274 Md. 211, 223, 334 A.2d [*251] 514, 523 (1975). When it is doubtful that the General Assembly has vested powers in an agency to decide certain issues, the agency's ability to exercise that power will be circumscribed by the courts. See Jackson v. Wyoming, 786 P.2d 874, 878 (Wy. 1990);[***16] Hills Dev. Co. v. Township of Bernards, 229 N.J. Super. 318, 551 A.2d 547, 559 (N.J. Super. 1988). Our task, therefore, is to determine whether the legislature intended, when it enacted the PLA, that a prisoner asserting medical malpractice against a private contractor providing medical services for the State first be required to file [**508]his alleged grievance with the DOC and/or the IGO before filing a common law tort complaint in state court. n9

n9 Petitioner's argument that he should not be required to exhaust the DOC or the IGO administrative processes because those procedures can not grant him the sole relief he seeks, monetary damages, is a non-starter. We held, in McCullough , 314 Md. at 610, 552 A.2d at 885, that the Department and the IGO "have statutory authority to award monetary damages as long as funds are appropriated or otherwise properly available for this purpose [battery tort claim]." The subsequent adoption of the PLA has not attenuated the vitality of this holding.

[***17]

   The principles of statutory construction are not novel. "Every quest to discover and give effect to the objectives of the legislature begins with the text of the statute." Huffman v. State, 356 Md. 622, 628, 741 A.2d 1088, 1091 (1999). If the legislature's intentions are evident from the text of the statute, our inquiry normally will cease and the plain meaning of the statute will govern. See id. See also Martin v. Beverage Capital Corp., 353 Md. 388, 399, 726 A.2d 728, 733 (1999); Philip Elec. North America v. Wright, 348 Md. 209, 216-17, 703 A.2d 150, 153 (1997); Schuman, Kane, Felts & Everngam v. Aluisi , 341 Md. 115, 119, 668 A.2d 929, 931 (1995). We bear in mind, however, that the plain-meaning rule is elastic, rather than cast in stone. See Kaczorowski v. Mayor of Baltimore, 309 Md. 505, 513, 525 A.2d 628, 632 (1987). If persuasive evidence exists outside the plain text of the statue, we do not turn a blind eye to it.  See Kaczorowski, 309 Md. at 514. We often look to the legislative history, an agency's interpretation of the statute, and other [*252] sources for a more complete understanding[***18] of what the General Assembly intended when it enacted particular legislation. See Harris v. State, 331 Md. 137, 146, 626 A.2d 946, 950 (1993). In so doing, "we may also consider the particular problem or problems the legislature was addressing, and the objectives it sought to attain." Sinai Hosp. of Baltimore v. Department of Employment and Training, 309 Md. 28, 40, 522 A.2d 382, 388 (1987). This enables us to put the statute in controversy in its proper context and thereby avoid unreasonable or illogical results that defy common sense. See Huffman, 356 Md. at 628, 741 A.2d at 1091; Marriott Employees Fed. Credit Union v. Motor Vehicle Admin., 346 Md. 437, 445, 697 A.2d 455, 459 (1997); Kaczorowski, 309 Md. at 513, 525 A.2d at 632.

   "We should first attempt to ascertain [the legislature's] intent from the statutory language, reading pertinent parts of the legislative language together, giving effect to all of those parts if we can, and rendering no part of the law surplusage." Sinai Hosp. of Baltimore, 309 Md. at 39-40, 522 A.2d at 388. Our statutory construction analysis, therefore, [***19] requires an extensive restatement and integration of various sections of the PLA under Maryland Code (1974, 1998 Repl. Vol., 1999 Supp.), Courts and Judicial Proceedings Article, §§ 5-1001, et seq., and Maryland Code (1999), Correctional Services Article (CSA), §§ 10-201, et seq.. Only after the statutory mosaic is pieced together, and placed in its proper context, can we gather a true picture of the scope of the PLA's exhaustion requirement as it may apply to the case sub judice. PLA § 5-1001 provides the definitions at issue:

   (a) In general. -- In this subtitle the following words have the meanings indicated.

   (b) Administrative remedy. -- (1) "Administrative remedy" means any procedure for review of a prisoner's complaint or grievance, including judicial review, if available, that is provided by the Department, the Division of Correction, or any county or other municipality or political subdivision, and results in a written determination or disposition.

   [*253] (2) "Administrative remedy" includes a proceeding under Title [**509]10, Subtitle 2 of the State Government Article or Title 10, Subtitle 2 of the Correctional Services Article.

   (c) Civil action. -- [***20]

   (1) "Civil action" means a legal action seeking money damages, injunctive relief, declaratory relief, or any appeal filed in any court in the State that relates to or involves a prisoner's conditions of confinement.

   (2) "Civil action" includes:

   (i) An appeal of an administrative remedy to any court;

   (ii) A petition for mandamus against the prisoner's custodian, its officers or employees, or any official or employee of the Department;

   (iii) Any tort claim against a custodian, the custodian's officers or employees, or any employee or official of the Department;

   (iv) Any action alleging a violation of civil rights against a custodian, the custodian's officers and employees, or any official or employee of the Department; or

   (v) Any appeal, application for leave to appeal, or petition for certiorari.

   (3) "Civil action" does not include a postconviction petition or petition for habeas corpus relief.

   (d) Conditions of confinement. -- "Conditions of confinement" means any circumstance, situation or event that involves a prisoner's custody, transportation, incarceration, or supervision.

   (e) Custodian. -- "Custodian" means the institution or agency that has custody of the[***21] prisoner.

   (f) Department. -- "Department" means the Department of Public Safety and Correctional Services.

   (g) Prisoner. -- (1) "Prisoner" means a person who is in the custody of the Department or a local detention center.

   (2) "Prisoner" includes pretrial detainees.

   The "administrative remedy" process referenced in PLA § 5-1001(b)(2) and, at issue here, is set forth under CSA, Title 10, [*254] Subtitle 2. n10 CSA § 10-206 permits a prisoner to submit a complaint for grievances against employees of the DOC to the IGO. It states:

   (a) Authorized. -- Subject to subsection (b) of this section, if an individual confined in a correctional facility in the Division of Correction, otherwise in the custody of the Commissioner of Correction, or confined in the Patuxent Institution has [***22] a grievance against an official or employee of the Division of Correction or the Patuxent Institution, the individual may submit a complaint to the Office within the time and in the manner required by regulations adopted by the Office.

   (b) Exhaustion of remedies. -- If the Division of Correction or the Patuxent Institution has a grievance procedure applicable to the particular grievance of an individual described in subsection (a) of this section and the Office considers the procedure to be reasonable and fair, the Office, by regulation, may require that the procedure be exhausted before submission of a complaint to the Office.
 
(Emphasis added).

n10 Generally, Maryland Code (1984, 1999 Repl. Vol.), State Government Article, § 10-201, et seq., sets forth the procedures for administrative hearings, notice requirements, and judicial review of administrative decisions.

   After a prisoner files a complaint, CSA § 10-207(a) then requires that "the Executive Director or the Director's designee shall conduct a preliminary review of each complaint submitted to the Office." Following the preliminary review, the Executive Director or designee will either dismiss a complaint that lacks merit or refer a meritorious complaint to the Maryland Office of Administrative Hearings (an independent administrative adjudicatory agency). See CSA § 10-207(b) and (c). n11 [**510] If the complaint is meritorious, [***23] the administrative [*255] review process continues under CSA §§ 10-208 and 10-209. CSA § 10-208(a) grants to the Office of Administrative Hearings the authority to "conduct hearings under this subtitle at correctional facilities in the Division of Correction or at the Patuxent Institution." The hearing process provides for access to documentary evidence, the power of subpoena, requirements of testimony under oath, and that the testimony be recorded. See § 10-208(b) and (c). n12 After a hearing on the complaint, the Office of Administrative Hearings issues "a decision in the form of an order." § 10-209(a)(1). "The order shall include a statement of the findings of fact, the conclusions of law, and the disposition of the complaint under subsection (b) of this section." § 10-209(a)(2). The Office of Administrative Hearings may either dismiss the complaint as [*256] lacking in merit, or, if the complaint has merit, forward a proposed order to the Secretary for review. See  § 10- 209(b)(1)(i) and (2). If the complaint is dismissed by the Office of Administrative Hearings "the order of dismissal constitutes the final decision of the Secretary for purposes of judicial review." § 10-209(b)(1)(ii). [***24] If, however, the complaint is meritorious, the Secretary reviews the order and affirms, remands, or modifies it. See  § 10-209(c). n13 "Unless the complaint is remanded, the Secretary's order constitutes the final decision for purposes of judicial review." § 10-209(c)(3)(ii).

n11 Section 10-207 states in pertinent part:

   (b) Dismissal. -- (1) After preliminary review, if the complaint is determined to be wholly lacking in merit on its face, the Executive Director or the Director's designee may dismiss the complaint without a hearing or specific findings of fact.

   (2)(i) The order of dismissal shall be forwarded to the complainant within 60 days after the complaint was submitted to the Office.

   (ii) The order of dismissal constitutes the final decision of the Secretary for purposes of judicial review.

   (c) Referral to Office of Administrative Hearings. -- (1) After preliminary review, if the complaint is not found to be wholly lacking in merit on its face, the Office shall refer the complaint to the Office of Administrative Hearings.

   (2) The Office of Administrative Hearings shall hold a hearing on the complaint as promptly as practicable. 

[***25] 

n12 Section 10-208 states in pertinent part:

   (b) Access to documentary evidence. -- With the approval of the Secretary, the Office of Administrative Hearings shall have access to documentary evidence of any person or facility that is the subject of an investigation or proceeding under this subtitle:

   (1) at all reasonable times; and
 
(2) for the purpose of examining and copying the evidence.

   (c) Subpoenas; oaths; record of testimony. -- (1) The Office of Administrative Hearings may issue subpoenas requiring:

   (i) the attendance and testimony of witnesses; and
 
(ii) the production of documentary evidence relating to any matter under investigation.

   (2) The administrative law judge presiding at a hearing may administer oaths. 

   (3) A record of the testimony presented at the hearing shall be kept in accordance with regulations adopted by the Office of Administrative Hearings.

n13 Section 10-209(c) states in pertinent part:

   (c) Review by Secretary. -- (1) Within 15 days after receiving a proposed order under subsection (b)(2) of this section, the Secretary shall issue an order affirming, reversing, or modifying the order of the Office of Administrative Hearings, or remanding the complaint to the Office of Administrative Hearings for further proceedings.

   (2) The Secretary may take any action the Secretary considers appropriate in light of the findings of the Office of Administrative Hearings, including ordering the appropriate official to accept as a whole or in part the recommendation of the Office of Administrative Hearings.

 

[***26]

   The final step of the statutorily-contemplated process is judicial review. The procedure for judicial review is set forth in CSA § 10-210:

    § 10-210. Judicial review
 
(a) Exhaustion of remedies. -- A court may not consider an individual's grievance that is within the jurisdiction of the Office or the Office of Administrative [**511] Hearings unless the individual has exhausted the remedies provided in this subtitle.

   (b) Circuit court review. -- (1) The complainant is entitled to judicial review of the final decision of the Secretary under § 10-207(b)(2)(ii) or § 10-209(b)(1)(ii) or (c)(3)(ii) of this subtitle.

   (2) Proceedings for review shall be instituted in the circuit court of the county in which the complainant is confined.

   [*257] (3) Review by the court shall be limited to:

   (i) a review of the record of the proceedings before the Office and the Office of Administrative Hearings and any order issued by the Secretary following those proceedings; and
 
(ii) a determination of whether the complainant's rights under federal or State law were violated.

   (c) Appellate review. -- (1) The Administrative Procedure Act does not apply to appellate review of a final judgment of[***27] the circuit court under this section.

   (2) A party aggrieved by the decision of the circuit court may file an application for leave to appeal to the Court of Special Appeals in accordance with the Maryland Rules.
 
It is clear that the CSA establishes for covered inmate grievances an administrative remedy through the IGO that is primary, but not exclusive, and which must be invoked and exhausted before an inmate ordinarily may seek review of an adverse decision. See Zappone v. Liberty Life Ins. Co., 349 Md. 45, 60, 706 A.2d 1060, 1067-68 (1998).

   The legislature also injected several judicial screening procedures into the PLA to ensure strict compliance with its administrative exhaustion requirement, including documentary proof of exhaustion and judicial scrutiny of the initial complaint in any civil action filed with a court by an inmate. PLA § 5-1003 states, in pertinent part:

   (a) In general. -- (1) A prisoner may not maintain a civil action until the prisoner has fully exhausted all administrative remedies for resolving the complaint or grievance.

   (2) Except as provided in paragraph (3) of this subsection, an administrative remedy is exhausted when the[***28] prisoner has pursued to completion all appropriate proceedings for appeal of the administrative disposition, including any available proceedings for judicial review.

    (3) Judicial review following administrative consideration shall be the exclusive judicial remedy for any grievance or complaint within the scope of the administrative process, unless the prisoner's complaint or grievance was [*258]found to be meritorious and monetary damages were not available through the administrative remedy available to the prisoner.
 
(b) Proof. -- (1) When a prisoner files a civil action, the prisoner shall attach to the initial complaint proof that administrative remedies have been exhausted.

   (2) The attachment shall include proof:

   (i) That the prisoner has filed a complaint or grievance with the appropriate agency;

   (ii) Of the administrative disposition of the complaint or grievance; and
 
(iii) That the prisoner has appealed the administrative disposition to the appropriate authority, including proof of judicial review, if available.

   (3) On receipt of a prisoner's initial complaint that does not have attached to it proof that the prisoner has fully exhausted the administrative remedies [***29]available, the court shall dismiss the case without prejudice and grant the prisoner reasonable leave to amend the complaint and to provide the proof necessary to demonstrate that the prisoner has fully exhausted the administrative remedies.

   [**512] (c) Dismissal. -- A court shall dismiss a civil action if the prisoner filing the action has not completely exhausted the administrative remedies.
 
(Emphasis added).

   When a civil action is filed with a court, PLA § 5-1004 mandates that the court conduct a review of the initial complaint. It states:

   (a) Review of complaint. -- Prior to service of process of the prisoner's civil action, the court shall review the prisoner's initial complaint and identify any cognizable claims.

   (b) Grounds for dismissal. -- After reviewing the prisoner's complaint, the court may dismiss the civil action, or any portion thereof, with or without prejudice, if it finds that the civil action:

   (1) is frivolous, malicious, or fails to state a claim for which relief can be granted;

   [*259] (2) Seeks monetary damages from a defendant who is immune from such relief; or
 
(3) is barred under § 5-1003(a) of this subtitle.

   (c) Proof of exhaustion of remedies. [***30]  -- An order of dismissal under subsection (b)(1) or (2) of this section may be issued without first requiring proof of exhaustion.

    PLA § 5-1005 further provides the court with the power to dispose of frivolous actions and impose restrictions on prisoners that file them. n14 In addition to exhausting all administrative remedies, the PLA requires prisoners to pay for court costs. n15 Aligned with this requirement is a [**513] provision for judicial discretion to waive or reduce the court costs imposed [*260]should the court consider the prisoner's grievance merits such a reduction or waiver. The PLA reinforces the CSA's regulatory scheme for the IGO as the primary, but not exclusive, administrative remedy for covered inmate grievances or complaints and the need for invocation and exhaustion of that process. Of additional note, however, PLA § 5-1003(a)(3) directs limited exclusivity for the judicial review of an unfavorable disposition of an aggrieved inmate's covered grievance or complaint. Thus, an inmate, having exhausted the administrative remedy, generally may invoke the jurisdiction of the courts in aid of his or her cause solely through the judicial review authorized by CSA § 10-210 (b) [***31] and (c), unless the administrative process resulted in a determination of merit in the complaint or grievance and monetary damages were not available through the administrative process. n16

n14 § 5-1005. Frivolous actions.

   (a) Final order or judgment. -- A court may include in its final order or judgment in any civil action a finding that the action was frivolous.

   (b) Docket entries. -- A finding under subsection (a) of this section shall be reflected in the docket entries of the case.

   (c) Effect of filing actions declared frivolous. -- (1) A prisoner who has filed three or more civil actions that have been declared to be frivolous by a court of this State or a federal court for a case originating in this State may not file any further civil actions without leave of court.

   (2) If a prisoner has filed three or more civil actions that have been declared to be frivolous by a court of this State or a federal court for a case originating in this State, a court may place the prisoner's remaining and future civil actions on an inactive case list and permit the prisoner to pursue only one civil action at a time, regardless of jurisdiction. 

[***32] 

n15 § 5-1002. Filing fees.

   (a) In general. -- (1) (i) Except as provided in subsection (c) of this section, a prisoner who maintains a civil action shall pay all or a portion of the applicable filing fee, as determined by the court.

   (ii) unless a waiver is granted under subsection (c) of this section, a fee determined by the court under subparagraph (i) of this paragraph shall be at least 25 percent of the entire filing fee otherwise required for a civil action. 

   (2) The court may:
 
   (i) Authorize any fee to be paid over a specific period of time; and

   (ii) Establish a payment schedule.

   (3) Until any applicable filing fee is paid, service of the complaint shall be withheld, discovery may not commence, and other proceedings may not be convened.

   (b) Amount. -- In establishing the amount of the filing fee to be paid under subsection (a) of this section, the court shall consider, based on information in the complaint and provided by the prisoner:

   (1) The seriousness of the claim;

   (2) The likelihood of success;

   (3) The urgency of consideration;

   (4) The amount of funds available in any institutional account and any account outside of the institution;

   (5) The employment status of the prisoner in the institution and income from the employment;

   (6) Any financial obligations of the prisoner; and
 
(7) The length of time that is likely to pass before the filing fee that is imposed is able to be paid.

   (c) Waiver. -- A court may waive payment of the entire required filing fee for a civil action filed by a prisoner only on a written showing under oath by the prisoner that:

   (1) The prisoner is indigent;

   (2) The issue presented is of serious concern;

   (3) Delay in the consideration of the issues presented will prejudice the consideration of the claim;

   (4) The prisoner is not likely to accumulate sufficient funds to pay the required filing fee within a reasonable period of time; and
 
(5) The prisoner possesses a reasonable likelihood of success on the merits of the claim.

   (d) Reimbursement as costs. -- If a prisoner prevails in an action, the filing fee that is paid by the prisoner shall be reimbursed to the prisoner by the defendant through costs awarded by the court.

[***33] 

 n16 As noted supra at n.9, the availability of monetary relief via the IGO grievance/ complaint process, and the circumstances controlling that relief, have been determined. Thus, the exclusivity provision of PLA § 5-1003(a)(3) would not affect Petitioner's complaint, if covered by the CSA and PLA at all.

   We need not decide in this case whether the limited exclusivity accorded the judicial review component of the statutory scheme by PLA § 5-1003(a)(3) would operate in Petitioner's case to abrogate his right to bring a common law negligence action. See Holiday Point Marina v. Anne Arundel County, 349 Md. 190, 203, 707 A.2d 829, 835 (1998). This is so because, as we shall explain infra, Petitioner's complaint is not within the contemplated subject matter jurisdiction of the administrative remedy process that is at the heart of this case.

   [*261] B.

   In addition to the procedures fashioned by integration of the PLA and CSA, the legislative history of the PLA further illustrates the regulatory scheme intended by the General Assembly. In enacting the PLA, the legislature essentially[***34] was reacting to federal legislation that similarly sought to inhibit the ability of prisoners to file lawsuits in the federal court system without first attempting to resolve their grievances through available administrative procedures. In 1996, Congress enacted the Prison Litigation Reform Act (PLRA), Pub. L. 104-134, Act of April 26, 1996. Congress recognized that:

   Prisoners file civil rights actions primarily to challenge their conditions of confinement in prisons or jails. Federal district courts have jurisdiction over cases by state prisoners under the 1871 Civil Rights Act, 42 U.S.C. § 1983. Section 1983 is now interpreted as creating a private cause of action against any person who, under color of state law, deprives another citizen or person within the jurisdiction of the United States of "any rights, privileges, or immunities secured by the Constitution and laws" of the United States. . .

   Alleged violations of prisoners' civil rights most commonly involve the "cruel and unusual punishments" clause of the Eighth Amendment, the free exercise of religion clause of the First Amendment, and the due process clause of the Fourteenth Amendment.
 
[*262] Dorothy[***35] Schrader, Prison Litigation Reform Act: Survey of Post-Reform Act Prisoners' Civil Rights Cases, Congressional Research Service Report for Congress, 4 Nov. 1997, at 2 ("CRS PLRA Survey"). These civil rights claims were seen by Congress as being largely frivolous. The PLRA was enacted to stop the flood of prisoner cases by curtailing "the authority of the federal courts to remedy prison conditions, including prison overcrowding, that allegedly violate prisoners' [**514] federal rights." CRS PLRA Survey, at 1. Until its inception, "the pre-PLRA section 1997e(a) granted district courts discretion whether to require a prisoner to exhaust his administrative remedies." Alexander v. Hawk, 159 F.3d 1321, 1323 (11th Cir. 1998). Under the PLRA, Congress created a steeplechase obstacle in the path of prisoner actions seeking a forum in federal court. Getting over that wall is difficult:

   The [PLRA] generally requires payment of filing fees and exhaustion of administrative remedies; curtails the authority of federal courts to order prospective relief, including early releases of prisoners to remedy prison overcrowding; bars federal court-ordered prison construction and orders [***36]to raise taxes as remedies; places limits on repeat frivolous filers; and requires that prisoners who win monetary damage awards must use the money to pay their outstanding restitution orders to compensate crime victims.
 
CRS PLRA Survey, at 3.   42 U.S.C. 1997e(a) in particular requires the exhaustion of all available administrative remedies. n17 It states:

n17 Interestingly, since enactment of the PLRA, the federal courts of appeals are split over whether its exhaustion requirement requires a plaintiff to file a grievance with the administrative agency when the administrative agency cannot provide any substantial remedy to the plaintiff.

   The Fifth, Ninth, and Tenth Circuits have held that if no adequate remedy is available to a prisoner that prisoner may seek remedy in the courts and forego the administrative remedy process. In Garrett v. Hawk, 127 F.3d 1263, 1267 (10th Cir. 1997), the Court of Appeals noted that "Congress clearly intended to require prisoners to exhaust only 'such administrative remedies as are available' before bringing a [federal action] in federal court." It reasoned further that " a prisoner [however] can only exhaust administrative remedies that are actually available." Id. The Court went on to hold that in the case before it, Congress still had not provided an effective administrative remedy and until it did so "no exhaustion of administrative remedies is required under PLRA. . . because no such remedies exist to be exhausted." Id. Accord Whitley v. Hunt, 158 F.3d 882, 886-87 (5th Cir. 1998); Lunsford v. C.D. Jumao-As, 155 F.3d 1178, 1179 (9th Cir. 1998). But see Arvie v. Stalder, 53 F.3d 702, 706 (5th Cir. 1995)(holding that prisoner seeking both monetary damages and injunctive relief must exhaust administrative remedy procedures if agency can grant injunctive relief).

   The Sixth, Seventh, and Eleventh Circuit Courts of Appeal have held to the contrary. These Courts have held that no futility exception applies to the PLRA despite the unavailability of remedies. See Lavista v. Beeler, 195 F.3d 254, 257 (6th Cir. 1999); Perez v. Wisconsin Dep't of Corrections, 182 F.3d 532, 537 (7th Cir. 1999); Alexander v. Hawk, 159 F.3d 1321, 1326 (11th Cir. 1998).

[***37]

   [*263] (a) Applicability of administrative remedies. No action shall be brought with respect to prison conditions under section 1979 of Revised Statutes of the United States (42 U.S.C. 1983), or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.

   In Maryland, the General Assembly's response to the Congressional enactment of the PLRA was swift. In a memorandum dated 5 March 1997, the Department of Public Safety and Correctional Services commented in favor of H.B. 926, the bill which eventually became the PLA:

   This bill parallels Congressional action last year to remove frivolous prisoner litigation from the federal courts. Absent similar state legislation, it is likely this new federal law will not yield a reduction in frivolous litigation filed by inmates, but will shift their interest in filing to state courts. Consequently, the Department will not enjoy any of the benefits of a reduction in federal lawsuits brought by inmates. The correctional institutions will still be required to transport the inmate to court, and correctional officers and other[***38] staff will be absent from duty in order to appear as witnesses in court.

   * * * * * *

   [**515] [*264] HB 926 is intended to discourage inmates from filing frivolous lawsuits. The Department is confident the courts will continue to hear and decide any legitimate lawsuits brought by inmates individually or as a group. Accordingly, the Department respectfully requests that the Committee give favorable consideration to HB 926.
 
(Emphasis added).

   It appears, therefore, that the General Assembly was fearful that because prisoner claims would be more limited in the federal courts with jurisdiction over Maryland inmates' claims, Maryland inmates would turn to Maryland state courts to file their multitudinous claims. Like its federal predecessor, the PLA's purpose is to discourage frivolous claims from burdening state government by inhibiting cases against the DOC and its officials and employees from entering the court system, thereby also saving judicial resources, and relieving the Attorney General from its obligation to defend those claims. This is accomplished in part by requiring that the available administrative procedures be exhausted, the prisoner ordinarily pay a filing fee, and the award of [***39]punitive damages being capped at $2000 and, if awarded, the amount would be paid to satisfy claims by a prisoner's victim or to pay the prisoner's outstanding child support obligations.

   The legislature's intent to reduce only governmental expenses regarding prisoner claims is echoed by the fiscal note authored by the Department of Fiscal Services for the Maryland General Assembly, and dated 5 May 1997 (revised). The fiscal analysis purported to address HB 926's effect on state, local, and small businesses. The analysis summarized that the bill does not affect small business. All effects analyzed by the Department of Fiscal Services referenced savings for state and local governments. It projected the effect on the State as follows:

   State Effect: The bill is intended to reduce the number of civil suits filed by inmates relating to conditions of confinement, especially the number of frivolous suits. The magnitude and form of the bill's impact on State finances and [*265] operations is substantially dependent on its ability to deter or slow the pace at which such civil actions are filed by inmates. That potential deterrence cannot be reliably estimated at this time.

    There are approximately[***40] 480 inmate civil action cases defended by the Attorney General annually. These are cases where the State and/or its employees are being sued by inmates. In addition, there are also large numbers of inmate filings annually in the form of petitions to change names which, regardless of the change sought, are not now treated as frivolous by the judiciary. New federal legislation aimed at reducing inmate filings in federal courts may have the effect of driving the number of State filings significantly higher. The workload of the Office of the Attorney General could be significantly affected by this bill, but only to the extent that staff time now spent in court or otherwise defending the State and/or its employees would be reallocated.

   General fund revenues could increase to the extent that the bill's provisions for the payment of filing fees and court costs is successful in securing actual payments from inmates, for those cases heard in the District Court or the courts of appeal. The magnitude of such an increase cannot be reliably estimated at this time. Any reduction in hearings for the courts resulting from this bill would reduce court dockets and, thereby, reduce the workload of the[***41] courts by an indeterminate amount.
 
The effects on the local government were similarly discussed. See Fiscal Note, 3.

   C.

   In addition to the statutory language and legislative history, we are influenced to some degree by the IGO's own interpretation of its role in conjunction with the PLA and the administrative [**516] procedures for addressing inmate complaints that were in place before enactment of the PLA. While it is true that an agency's view of the law does not bind this Court's interpretation of the statutory scheme, we have [*266] noted before that an agency's expertise in its field is particularly persuasive. See Sinai Hosp. of Baltimore, 309 Md. at 46, 522 A.2d at 391. Indeed, courts give significant weight to the agency's interpretation of the statute that it is required to administer. See Zappone, 349 Md. at 64, 706 A.2d at 1070. We note as well that "in the matter of statutory construction it is well understood that the view taken of a statute by administrative officials soon after its passage is strong, persuasive influence in determining the judicial construction and should not be disregarded except for the strongest and most urgent reasons." [***42] Holy Cross Hosp. of Silver Spring, Inc., 283 Md. at 685, 393 A.2d at 185. As one commentator has aptly explained:

   The powerful effect courts give most agency interpretations of the agency's own regulations is based on common sense. The agency typically is in a superior position to determine what it intended when it issued a rule, how and when it intended the rule to apply, and the interpretation of the rule that makes the most sense given the agency's purposes in issuing the rule. Courts have significant institutional disadvantages in attempting to resolve these critical issues. However, courts do not simply rubber stamp agency interpretations of rules.
 
3 Kenneth C. Davis and Richard J. Pierce, Jr., Administrative Law Treatise, § 6.10, at 282 (3d 1994).

    Documentation was presented in this case that the IGO declines to hear prisoner grievances against private contractors. In a letter dated 16 July 1992, prior to the PLA's enactment, the Executive Director of the IGO stated in pertinent part:

   this office has jurisdiction over complaints filed by State prisoners against employees or officials of the Division of Correction or Patuxent Institution. Our jurisdiction[***43] does not extend to complaints against the private health care contractor or its employees.

   The conclusion reached in the aforementioned letter is consistent with a letter dated 20 November 1998 from the [*267] Executive Director of the IGO to an inmate at the DOC's Jessup facility which states in pertinent part in response to a letter from the inmate:

   please be advised that the jurisdiction of this agency is limited to complaints filed against officials or employees of the Division of Correction and Patuxent Institution. We do not have jurisdiction over any complaint you may have against a private health-care contractor or its employees who provide medical care and services to prisoners.

   To the extent that the DOC's directives establishing an ARP process may be considered as a part of the scheme of administrative remedies within the contemplation of the PLA (a subject on which we need not opine in this case -- see infra, n. 18), the Attorney General's Office, speaking on behalf of its client, the DOC, is apparently of the opinion that the DOC administrative procedures also do not address prisoner claims against private contractors. In a letter from the Attorney General's Office, dated 27 January 1999, to[***44] a District Court judge it states:

   while Section IV C.2. of the directive [DOC Directive 185-002] appears to require ARP exhaustion for inmate claims against medical contractors and their employees, the Division does not interpret the language in that section of the directive so broadly. Rather, that language is intended to refer only to inmate claims that relate to the delivery of medical services by correctional staff, and not by any other persons or entities over which the Division has no jurisdiction, like the medical contractors. Therefore, for instance, an inmate who claims that his tier correctional officer improperly [**517] refused to allow him to go to the institutional hospital must, pursuant to the directive, avail himself to the ARP process, but an inmate alleging negligence by a doctor employed by a medical contractor may not do the same.

   The position of the Attorney General's Office is consistent with the DOC Directives relating to the Administrative Remedy Procedure, as well as to the CSA and PLA requirements. The DOC Directives present in the record of this case are [*268] aimed at resolving prisoner grievances against the DOC, its officers, and its employees. There is no mention[***45] whatsoever of private contractors or the procedures to be observed should a claim of medical malpractice be submitted by prisoners against such a contractor. n18 

n18 Respondent also placed in the record before the Circuit Court photocopies of indices of inmates' ARP "complaints" and correspondence logs from various DOC facilities for the periods November - December 1997 (in the case of the complaints) and April 1999 (as to the correspondence). A short summary of the subject of each recorded complaint or piece of correspondence was included. Some of the summaries indicate subject matter such as "inadequate medical treatment" and "eye surgery." Additionally, Respondent submitted copies of various completed ARP forms and the dispositions accorded them by either wardens or the DOC Commissioner (or their designees) from 1996 and 1999. Although difficult to read and fully understand, the inmates' complaints seem in many instances to touch on medical issues. Respondent contended that these documents demonstrated an ongoing acceptance and consideration by the DOC, under its ARP directives, of complaints against private medical contractors at the respective DOC facilities represented on those forms. A close reading of these documents does not support necessarily Respondent's thesis. At best, the documentation is inconclusive because it lacks much factual detail as to the matters actually placed before the DOC in the examples offered. Without more facts, they contribute little persuasive force to Respondent's argument because we can not analogize fairly the DOC dispositions to the factual allegations of Petitioner's complaint.

   Even if the DOC maintained an internal practice of entertaining, via the ARP procedure, inmate complaints regarding matters implicating the performance by a private medical services contractor of its contractual medical duties, it is too great a leap to suggest that the DOC has entertained, or would entertain, a medical malpractice claim, as asserted by Petitioner. There may be many managerial and administrative reasons for the DOC to use the ARP process as one way to monitor the performance of the medical contractors, short of volunteering it as a form of alternative dispute resolution for malpractice claims. We shall leave for another day, as it has not been briefed or argued here, whether, in any event, the DOC directives are entitled to the force and effect of law. If not, their interpretation and implementation may have no bearing on the CSA administrative process and, thus, may not be cognizable in an analysis of the PLA's exhaustion requirement.

 

[***46]

   D.

   We hold that a plain reading of the PLA and CSA, meshed with the legislative history and the IGO's interpretation of its role in prisoner claims against private contractors, [*269] overwhelmingly demonstrate that the PLA administrative remedy exhaustion requirement does not apply to lawsuits filed by inmates against private contractors alleging a claim of medical malpractice. We cannot require the exhaustion of an administrative remedy process that is inapplicable to a prisoner's alleged grievance.

   The PLA and CSA are devoid of any reference to private contractors or businesses. Nothing in the statutes would lend the slightest hint that the legislature intended the statute's exhaustion requirement be as all encompassing as Respondent alleges. PLA § 5-1001(c)'s definition of a "civil action" references solely actions against state employees for petitions of mandamus, tort claims, and civil rights violations. Civil actions as they relate to tort claims in particular are defined as "any tort claim against a custodian, the custodian's officers or employees, or any employee or official of the Department [of Public Safety and Correctional Services]." Furthermore, the IGO is specifically[***47] confined to address and investigate complaints "against an official or employee of the Division of Correction." CSA § 10-206. [**518]Respondent is not, nor does it claim to be, an official or employee of the DOC, or a custodian of Petitioner. Respondent likewise does not argue that it is a state actor for any purpose.

   We add that there is no mention in the PLA's legislative history of curtailing prisoner malpractice lawsuits against private contractors or private entities. The statute was designed to prevent or inhibit the influx of prisoner claims against State officials and employees in Maryland's state courts and to lessen the burden on the Attorney General in defending such prisoner claims. It was not intended apparently to shield private medical contractors from malpractice claims by prisoners or as an aid in the pre-litigation discovery or non-judicial resolution of such claims. While it is true that the Maryland courts have recognized that the absence of express statutory language granting authority to an administrative agency is not dispositive of whether that agency has such authority, its absence from the statute is nonetheless a factor which may be considered. See Lussier v. Maryland [*270] Racing Comm'n, 100 Md. App. 190, 203-04, 640 A.2d 259, 266 (1994),[***48] aff'd, 343 Md. 681, 684 A.2d 804 (1994). See also McCarthy v. Madigan, 503 U.S. 140, 154, 112 S. Ct. 1081, 1091, 117 L. Ed. 2d 291, 305 (1992) ("the absence of any monetary remedy in the grievance procedure also weighs heavily against imposing an exhaustion requirement").

   None of the federal cases cited by Respondent support the proposition that medical malpractice is a condition of confinement as referenced in the PLA, let alone the PLRA. In Wilson, the conditions of confinement that were discussed related to a violation of a prisoner's federal rights. See 501 U.S. at 304-05, 111 S. Ct. at 2327, 115 L. Ed. 2d at 282-83. Indeed, all of the federal cases cited by Respondent were decided in the context of a 42 U.S.C. § 1983 action where the prisoner "must allege the violation of right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law." West v. Atkins, 487 U.S. 42, 47, 108 S. Ct. 2250 2255, 101 L. Ed. 2d 40, 48-49 (1988). Medical malpractice claims ordinarily do not rise to the level[***49] of violating a prisoner's federal civil rights and Petitioner does not claim that his grievance against Respondent amounts to a violation of his civil rights. In Estelle v. Gamble, Justice Marshall, writing for the majority, held:

   [A] complaint that a physician has been negligent in diagnosing or treating a [prisoner's] medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment. Medical malpractice does not become a constitutional violation merely because the victim is a prisoner. In order to state a cognizable claim, a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs. It is only such indifference that can offend "evolving standards of decency" in violation of the Eighth Amendment.
 
429 U.S. 97, 106, 97 S. Ct. 285, 292, 50 L. Ed. 2d 251, 261 (1976). A claim of malpractice is usually a state tort law claim and not an abridgement of a fundamental right under federal constitutional mores. See Estelle, 429 U.S. at 107, 97 S. Ct. at 293, 50 [*271] L. Ed. 2d at 262. See also Harris v. Hegmann, 198 F.3d 153, 159 (5th Cir. 1999)[***50] (malpractice does not rise to a constitutional tort); Sosebee v. Murphy, 797 F.2d 179, 181 (4th Cir. 1986)(negligence is a tort law claim not arising to constitutional principles); Hampton v. Holmesburg Prison Officials, 546 F.2d 1077, 1080 (3d Cir. 1976)(malpractice is state law claim not constitutional abridgement).

   The purposes for requiring the exhaustion of administrative remedies would hardly be achieved by accepting Respondent's interpretation of the PLA as it seeks to apply it here. First, the administrative agency's expertise is not circumvented by allowing for judicial determination [**519] of Petitioner's claim because the DOC and the IGO apparently claim no expertise in resolving or adjudicating medical malpractice claims against private medical service providers. The record shows the IGO will not entertain a grievance such as alleged by Petitioner because it believes it has no jurisdiction to do so. At oral argument before this Court, Respondent admitted that the IGO and the Office of Administrative Hearings will not hear Petitioner's claim. Moreover, unlike the battery of an inmate in his cell by a prison guard as alleged in McCullough, [***51] the allegations of Petitioner's complaint are not "obviously a matter falling within the expertise of the [IGO]." 314 Md. at 610, 552 A.2d at 885.

   We are unconvinced that judicial resources will be saved by interpreting the PLA to require Petitioner to file his grievance with the DOC or the IGO before filing suit in state court. Respondent claims that the DOC will at least investigate Petitioner's grievance, yet the record does not support necessarily such a conclusion. Assuming arguendo that the DOC would investigate, Respondent admits that no entity in its conception of the administrative remedy process would issue findings of fact or conclusions of law in a form that would provide a basis for judicial review after the agency acts on Petitioner's case. The DOC ARP documentation submitted by Respondent to prove that the DOC receives and acts on inmate complaints against private medical contractors further illuminates the shortcomings of this contention. Without [*272] proper administrative findings of fact there can be no judicial review. Judicial review procedures prohibit the courts from being fact-finders in such matters. See Baltimore Lutheran High School Ass'n, Inc. v. Employment Sec. Admin., 302 Md. 649, 660-663, 490 A.2d 701, 707-08 (1985).[***52] A court's role is to review the facts as found by the expert eye of the administrative agency and to reverse those findings only if they are clearly erroneous. Respondent has not demonstrated that the DOC process would yield judicially reviewable administrative decisions.

   We conclude that the General Assembly, while it was free to do so, did not craft the PLA or the CSA in a manner that envisioned the relevant administrative remedy as encompassing prisoner malpractice complaints against private medical service providers under contract with the State. We decline Respondent's invitation to read such an intention into the statutory or regulatory schemes.

   JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY REVERSED; CASE REMANDED TO THE CIRCUIT COURT WITH DIRECTIONS THAT IT REVERSE THE JUDGMENT OF THE DISTRICT COURT OF MARYLAND AND REMAND THIS MATTER TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS; COSTS TO BE PAID BY RESPONDENT. 

LAWRENCE MATTHEWS et al. v. STEPHEN K. HOWELL 
No. 131, September Term, 1999
 
COURT OF APPEALS OF MARYLAND
 
359 Md. 152; 753 A.2d 69; 2000 Md. LEXIS 319; 2000 AMC 2067

 June  8, 2000, Filed

   SUBSEQUENT HISTORY: [***1] As Corrected July 5, 2000.

PRIOR HISTORY: Appeal from the Circuit Court for  Anne Arundel  County pursuant to certiorari to the Court of Special Appeals. Case # C-1998-44200 OT. Robert H. Heller, Jr., JUDGE.

DISPOSITION: JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY REVERSED; CASE REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION; COSTS TO BE PAID BY APPELLEE. 
CASE SUMMARY 

PROCEDURAL POSTURE:  Plaintiffs appealed the judgment of the Circuit Court for Anne Arundel County (Maryland) holding that maritime law was inapplicable and granting summary judgment for defendant. Plaintiffs' appeal was before the court via the court's grant of a writ of certiorari on its own motion prior to proceedings before the lower appellate court.

OVERVIEW:  Plaintiffs brought a survivors' action alleging negligence and a wrongful death action against defendant. Plaintiffs relied on maritime law since the allegations involved decedent's drowning while a guest on a vessel captained by defendant. The trial court held that maritime law was inapplicable and granted summary judgment for defendant. Plaintiffs appealed. The court granted a writ of certiorari on its own motion prior to proceedings before the lower appellate court. The court held that maritime law was applicable, because the actions surrounding decedent's drowning bore a substantial relationship to traditional maritime activity. Specifically, the court found that defendant failed to provide proper means of ingress and egress and proper repair and maintenance of his vessel, both of which constituted "traditional maritime activities." Maritime law was also applicable because plaintiffs alleged negligence for failure to warn decedent of potential hazards and for failure to aid in decedent's rescue. Consequently, the grant of summary judgment for defendant was reversed.

OUTCOME:  The grant of summary judgment for defendant was reversed and the case was remanded to the trial court for further proceedings. Maritime law was applicable to the case, because the actions surrounding decedent's drowning bore a substantial relationship to traditional maritime activity.

CORE TERMS:  boat, maritime, vessel, maritime jurisdiction, water, navigation, maritime law, passenger, navigable waters, rescue, admiralty jurisdiction, commerce, helm, nexus, locality, captain, swimming, summary judgment, hazard, pleasure, diving, marina, drowning, admiralty, deposition, dove, dive, federal maritime law, multifactor, decedent

CORE CONCEPTS -  

Admiralty Law: Jurisdiction
See 28 U.S.C.S. § 1333.

Admiralty Law: Jurisdiction
Although 28 U.S.C.S. § 1333, on its face, confers exclusive maritime jurisdiction to the federal courts, the "saving to suitors" clause allows maritime cases based on common law claims traditionally brought in state courts to proceed in those courts, provided that they apply the federal law pertaining to maritime liabilities.

Civil Procedure: Summary Judgment: Summary Judgment Standard
The purpose of the summary judgment procedure is not to try the case or to decide the factual disputes, but to decide whether there is an issue of fact, which is sufficiently material to be tried.

Civil Procedure: Summary Judgment: Summary Judgment Standard
Civil Procedure: Appeals: Standards of Review
In reviewing the grant of a summary judgment motion, an appellate court is concerned with whether a dispute of material fact exists and, if not, whether the movant is entitled to judgment as a matter of law. A material fact is a fact the resolution of which will somehow affect the outcome of the case. A dispute as to facts relating to grounds upon which the decision does not rest is not a dispute with respect to a material fact and such a dispute does not prevent the entry of summary judgment.

Civil Procedure: Summary Judgment: Burdens of Production & Proof
Once a moving party has provided the trial court with sufficient grounds for summary judgment, the nonmoving party must produce sufficient evidence to the trial court that a genuine dispute to a material fact exists.

Civil Procedure: Summary Judgment: Summary Judgment Standard
Civil Procedure: Appeals: Standards of Review: De Novo Review
A trial court, in accordance with Md. R. Civ. P., Cir. Ct. 2-501(e), shall grant a motion for summary judgment if the motion and response show that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law. The standard of review for a grant of summary judgment is whether the trial court was legally correct. An appellate court reviews the trial court's legal conclusions in a summary judgment order de novo .

Admiralty Law: Jurisdiction
Under the "nexus" test, to exercise maritime jurisdiction, a court must find, not only that the action accrued upon or in navigable waters, but that the incident alleged in the claim bears a significant relationship to traditional maritime activity.

Admiralty Law: Jurisdiction
For purposes of establishing maritime jurisdiction, there is no requirement that the maritime activity be an exclusively commercial one.

Admiralty Law: Jurisdiction
If the "wrong" at issue involves the negligent operation of a vessel on navigable waters, it has a sufficient nexus to traditional maritime activity to sustain admiralty jurisdiction.

Admiralty Law: Jurisdiction
There are two essential prongs to the "nexus" test: (1) that the incident caused a potential hazard to maritime commerce; and (2) that the actions surrounding the incident bore a substantial relationship to traditional maritime activity.

Admiralty Law: Jurisdiction
Regarding the first prong of the "nexus" test, i.e., that the incident caused a potential hazard to maritime commerce, a court determines the potential impact of a given type of incident by examining its general character. A court must assess the general features of the type of incident involved to determine whether such an incident is likely to disrupt commercial activity.

Admiralty Law: Jurisdiction
Regarding the second prong of the "nexus" test, i.e., that the alleged incidents substantially relate to a traditional maritime activity, the United States Supreme Court cases make clear that the relevant "activity" is defined not by the particular circumstances of the incident, but by the general conduct from which the incident arose. Were courts required to focus more particularly on the causes of the harm, they would have to decide to some extent the merits of the causation issue to answer the legally and analytically antecedent jurisdictional question.

Admiralty Law: Jurisdiction
The fundamental interest giving rise to maritime jurisdiction is the protection of maritime commerce, and that interest cannot be fully vindicated unless all operators of vessels on navigable waters are subject to uniform rules of conduct. The need for uniform rules of maritime conduct and liability is not limited to navigation, but extends at least to any other activities traditionally undertaken by vessels, commercial or noncommercial.

Admiralty Law: Jurisdiction
Examining an incident for the purposes of maritime jurisdiction is not to be done by subjecting the minutia of a case to the "potential hazard" and "traditional maritime activity" tests; rather, the "general" aspects of the case are to be reviewed under the two prongs. At the same time, those tests are to be defined somewhat liberally. A "potential hazard" to maritime commerce need not include an actual hazard in the case at hand. The "potential hazard" can also be hypothetical, though not fantastical. A "traditional maritime activity" may include any maritime-related activity, not just marine navigation.

Admiralty Law: Jurisdiction
 The fact that men are overboard in an emergency situation, by itself, is likely to disrupt commercial activity; this event ordinarily occasions both air and sea searches and rescue operations. Similarly, leaving a vessel to float unmanned in open water has the potential to disrupt commercial navigation.

Admiralty Law: Jurisdiction
Accidents occurring during the navigation of a vessel, whether the navigation itself was negligent or not, generally fall within the "nexus" test.

Admiralty Law: Jurisdiction
"Navigation" involves much more than the simple operation of a vessel. It is defined in part as: to direct or manage a ship on its course; to ascertain or plot and control the course or position of a ship; and as the art or science of plotting, ascertaining, or directing the course of a ship.

Admiralty Law: Jurisdiction
The operation of a vessel and the failure to administer first aid are activities that establish a substantial relationship with traditional maritime activity.

Admiralty Law: Jurisdiction
The Third Circuit holds that the transport and care of passengers bears a substantial relationship to traditional maritime activity.

Admiralty Law: Jurisdiction
The anchoring of a boat in navigable waters is a traditional maritime activity.

Admiralty Law: Jurisdiction
There are cases applying maritime law to allegations of the failure of the boat operator to provide proper means of ingress and egress. For instance, the Fourth Circuit, in holding that maritime jurisdiction existed in a particular case, noted that the general features of the incident at issue may be described as injury to a person disembarking from a vessel in navigable waters. Similarly, the First Circuit, in upholding a trial court's finding of maritime jurisdiction in a particular case, noted that the boarding of a ship bears a significant relation to traditional maritime activities, for one does not normally board a ship in quite the same way one enters a building, an airplane, or a car.

Admiralty Law: Jurisdiction
A number of cases indicate that the proper repair and maintenance of vessels falls within the panoply of "traditional maritime activities."

Admiralty Law: Jurisdiction
Maritime jurisdiction is proper when a plaintiff has alleged negligence for failure to warn and aid on the part of the vessel.

COUNSEL: ARGUED BY David W. Skeen (Wright, Constable & Skeen, LLP, on brief) of Baltimore, MD, FOR APPELLANTS.
 
ARGUED BY Tina L. Snee (Jeffrey S. Danzig of Brandt, Jennings, Roberts, Davis & Snee, PLLC, on brief) of Falls Church, VA, FOR APPELLEE.

JUDGES: ARGUED BEFORE Bell, C.J.; Eldridge, Rodowsky, Raker, Wilner, Cathell, and Harrell, JJ. Opinion by Cathell, J.

OPINIONBY: Cathell

OPINION: [**70] [*156]

   Opinion by Cathell, J.

   Marcia Ault, appellant, the personal representative of the estate of Kimberly Matthews, decedent, and Lawrence Matthews, appellant, the father and next friend of Brittany and Travis Matthews, the children of Kimberly Matthews, [**71] brought two claims against Stephen Howell, appellee, in the Circuit Court for Anne Arundel County. The first claim was a survivors' action alleging negligence and the second claim alleged Ms. Matthews' wrongful death. Because the allegations in the complaint involved Ms. Matthews' drowning while a guest on a boat captained by appellee, appellants relied on maritime law which is applicable under the "saving to suitors" clause of the Judiciary Act of 1789, codified in 28 U.S.C. § 1333(1) (1994). n1 This appeal generally involves whether the circuit court should[***2] have applied maritime law. The circuit court ruled it should not and granted summary judgment to [*157] appellee. We hold that the circuit court should have applied maritime law and, accordingly, reverse.

n1  28 U.S.C. § 1333 reads in relevant part:

    § 1333. Admiralty, maritime and prize cases

   The district courts shall have original jurisdiction, exclusive of the courts of the States, of:

   (1) Any civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled.
 
Although the statute, on its face, confers exclusive maritime jurisdiction to the federal courts, it has long been held that the "saving to suitors" clause allows maritime cases based on common-law claims traditionally brought in state courts to proceed in those courts, provided that they apply the federal law pertaining to maritime liabilities. See, e.g., Pine Street Trading Corp. v. Farrell Lines, Inc., 278 Md. 363, 379-80, 364 A.2d 1103, 1114 (1976) ("Where an action within the federal maritime jurisdiction is brought in a state court under the 'saving to suitors' clause of § 9 of the Judiciary Act of 1789, 1 Stat. 76-77, 28 U.S.C. [ § ] 1333, the state court ordinarily must apply federal maritime law."); Orient Overseas Line v. Globemaster Baltimore, Inc., 33 Md. App. 372, 382 n.1, 365 A.2d 325, 334 n.1 (1976) ("The uncontested case law has held that under the provisions of this clause, a suitor asserting an in personam admiralty claim may elect to sue in a 'common law' state court through an ordinary civil action rather than in federal court under the admiralty jurisdiction."), cert. denied, 279 Md. 684 (1977).

[***3]
  
I. Background

   Appellee, who operated a mortgage company, visited Robert and Deborah Parks, personal friends, on September 18, 1996, to take pictures of their home. Ms. Matthews, a friend of Ms. Parks, was visiting the Parks home. Appellee invited all three to join him that evening on his boat, a 38-foot, 1984 Wellcraft Scarab.

   All four met at Oak Grove Marina on the South River, from which they eventually boated to Cantler's Riverside Inn on Mill Creek. They arrived around 9 to 9:30 p.m., and stayed until approximately 11 to 11:30 p.m., watching the Baltimore Orioles game. During that time, all four consumed a variety of alcoholic drinks.

   En route back to Oak Grove Marina, appellee operated the boat from the helm on the starboard (right) side, while Ms. Parks and Ms. Matthews were standing on deck. Ms. Parks stood on the port (left) side, while Ms. Matthews stood in the middle. Mr. Parks went below to light a cigarette. By now, the conditions had worsened: the wind had increased, the water had gotten choppy, and it was dark. While traversing the Chesapeake Bay near Greenbury Point, the boat had been traveling at a planing speed of about forty knots. At some point, appellee [***4]abruptly throttled back thereby slowing the boat. He then announced to Ms. Matthews that he wanted to take a quick swim, and dove into the Bay, jumping from the seat at the helm. Appellee and the witnesses differ on whether the boat engines were still engaged and, if so, whether the boat was in gear or drifting in neutral. n2 The boat [*158] apparently was not anchored. Appellee did not ask anyone to take the helm or to post watch.

n2 At some point, the key to the port engine broke off in the ignition while it was engaged. Ms. Parks' deposition indicates this happened on their trip to Cantler's Riverside Inn and that appellee fixed it. Appellee and Mr. Parks claimed in their depositions that the key broke sometime during the incident. Mr. Parks stated that, in attempting to rescue the others, he could only start the starboard engine.

   [**72] No one knows how or why, but Ms. Matthews went into the water immediately after appellee. Ms. Parks apparently was not paying attention when Ms. Matthews hit the water. Mr. Parks was still[***5] below deck and appellee was already in the water and did not see Ms. Matthews dive or fall in after him. Some evidence in the record indicates that Ms. Matthews may have said earlier in the evening that she would like to take a swim. Other evidence, included in a report prepared by appellant's proposed expert witness, indicates that she may have fallen into the Bay, perhaps because of the shift in the boat's plane after appellee dove into the water. Either way, as soon as Ms. Matthews hit the water, she began to panic.

   All three witnesses were deposed prior to the trial court's award of summary judgment. Their versions of what happened after Ms. Matthews went into the water differ. In his deposition, appellee claimed that, after he jumped into the Bay, he attempted to board the boat by stepping on the "trim tab" on the stern (rear) of the boat. It was at this point that he heard a splash and Ms. Matthews scream for help. Appellee claims that Ms. Matthews was about twenty feet from the boat. He stated that he tried to rescue Ms. Matthews, but, in her state of panic, she resisted. Ms. Parks threw him and Ms. Matthews a life jacket, but she missed and the wind blew it away. Ms. Parks[***6] then jumped in the water in an attempt to save the other two. Mr. Parks came from down below and began to maneuver the boat toward the three in the water. Appellee claims that he dragged Ms. Matthews and Ms. Parks to the port side of the boat. He grabbed a cleat with his left hand, while facing toward the stern. He shouted to Mr. Parks to put the boat in neutral, but it continued to move and appellee could not hold on to the cleat. He also stated that he grabbed a spotlight hanging from the port side of the boat, which was plugged into a lighter at the starboard helm, but the spotlight cord ripped out of the lighter and sank into the water. Eventually, he was separated from the women and [*159]drifted away before being rescued by Mr. Parks. He and Mr. Parks then recovered Ms. Parks from the water.

   Ms. Parks, in her deposition, stated that Ms. Matthews was about five feet from the boat when she heard her scream. She too described throwing the only life jacket she could find to Ms. Matthews, which the wind blew away. Ms. Parks then jumped into the water. After her husband brought the boat astern toward the swimmers, Ms. Parks claims that she and Ms. Matthews were on the starboard side of[***7] the boat, separated from appellee, who was on the port side. Contrary to appellee's claim that he grabbed the spotlight on the port side and ripped it out, Ms. Parks stated that she grabbed the spotlight and it ripped out, leaving her and Ms. Matthews to drift. Her statements also differ in that she claims her husband pulled appellee out of the water at that point. Although not specifically asked about the matter, Ms. Parks did not describe any attempt by appellee to rescue Ms. Matthews. Mr. Parks deposition reflects that he did not see either alleged rescue attempt.

   After helping appellee and Ms. Parks into the boat, Mr. Parks called 911 on appellee's cellular phone at 11:55 p.m. A United States Coast Guard boat arrived at 12:38 a.m., on September 19, followed by a Maryland Department of Natural Resources boat at 1:10 a.m., and a helicopter, all of which conducted a search for Ms. Matthews. The search was unsuccessful. Two days later, on September 21, 1996, after receiving a call from a passing boater, the Department of Natural Resources recovered Ms. Matthews' body, which was fully clothed, including her boots. An autopsy revealed that the cause of death was drowning.

   Appellants[***8] subsequently brought suit against appellee in the Circuit Court for Anne Arundel County, alleging that maritime law applied pursuant to the "saving to suitors" clause of 28 U.S.C. § 1333(1). [**73] Two claims were brought: (1) a survivor's claim alleging appellee's negligence in a number of matters, and (2) a wrongful death claim based on the same alleged [*160] acts. n3 Appellee subsequently moved for summary judgment, which the circuit court granted, ruling that (1) appellee was not negligent in his operation of the boat; (2) maritime law did not apply; (3) appellee had no duty to rescue Ms. Matthews under Maryland law; and (4) appellee owed Ms. Matthews no other duty of care under Maryland law and did not proximately cause her death. Appellants filed a timely appeal to the Court of Special Appeals, and we granted a writ of certiorari on our motion prior to proceedings before the lower appellate court. They present two issues to this Court:

n3 Paragraph five of the complaint alleged that appellee "was negligent in failing to operate the boat in a safe manner and see to the safety of its passengers," that he "abandoned the helm without making the proper preparations," and "the absence of proper direction of and participation in the rescue operation." Paragraph six alleged:

   6. [Appellee] was negligent in the operation of the boat in making the decision to leave the helm of a boat while making way; for failing to operate the boat in a reasonable and prudent manner; for failing to make necessary provisions for the safety and security of his passengers; for deciding to go swimming in a well traveled area on a windy and dark night; for failing to designate a competent or capable individual to be in charge of the boat; for failing to provide a reasonable means of reboarding; for failing to assure that the boat would not move away; for failing to warn the passengers of the difficulties of going swimming under the circumstances; for failing to ascertain the capacity of the decedent; for failing to advise the remaining passengers on board of his intentions; for failing to instruct the remaining passengers as to boat operation and rescue measures; for failing to ascertain whether the remaining passengers were capable of operating the boat; and for failing to direct or participate in rescue attempts; for operating a boat while intoxicated or impaired; and for other reasons as may be discovered prior to trial.

[***9]

   I. Did the trial court err in refusing to apply federal maritime law to the wrongful death and survivorship negligence claims against the owner/operator of a pleasure boat arising out of a drowning of a guest in the navigable waters of the United States?

   II. Did the trial court err in its factual findings and in concluding that no genuine issue as to any material fact existed and that as a matter of law the owner of a pleasure craft owed no duty to his guest under Maryland law?
 
[*161] II. Standard of Review

   The purpose of the summary judgment procedure is not to try the case or to decide the factual disputes, but to decide whether there is an issue of fact, which is sufficiently material to be tried. See Goodwich v. Sinai Hosp. of Baltimore, Inc., 343 Md. 185, 205-06, 680 A.2d 1067, 1077 (1996); Coffey v. Derby Steel Co., 291 Md. 241, 247, 434 A.2d 564, 567-68 (1981); Berkey v. Delia, 287 Md. 302, 304, 413 A.2d 170, 171 (1980). In reviewing the grant of a summary judgment motion, we are concerned with whether a dispute of material fact exists and, if not, whether the movant is entitled to judgment as a matter of law. Hartford Ins. Co. v. Manor Inn of Bethesda, Inc., 335 Md. 135, 144, 642 A.2d 219, 224 (1994);[***10] Gross v. Sussex, Inc., 332 Md. 247, 255, 630 A.2d 1156, 1160 (1993); Beatty v. Trailmaster, 330 Md. 726, 737, 625 A.2d 1005, 1011 (1993); Arnold Developer, Inc. v. Collins, 318 Md. 259, 262, 567 A.2d 949, 951 (1990); Bachmann v. Glazer & Glazer, Inc., 316 Md. 405, 408, 559 A.2d 365, 366 (1989); King v. Bankerd, 303 Md. 98, 110-11, 492 A.2d 608, 614 (1985) (citations omitted). "A material fact is a fact the resolution of which will somehow affect the outcome of the case." King, 303 Md. at 111, 492 A.2d at 614 (citing Lynx, Inc. v. Ordnance Prods., Inc., 273 Md. 1, 8, 327 A.2d 502, 509 (1974)). "[A] dispute as to facts relating to grounds upon which the decision is not rested is not a dispute with respect to a material fact and such dispute does not prevent the entry of summary [**74] judgment." Salisbury Beauty Schs. v. State Bd. of Cosmetologists, 268 Md. 32, 40, 300 A.2d 367, 374 (1973). Once the moving party has provided the court with sufficient grounds for summary judgment, the nonmoving party must produce sufficient evidence to the trial court[***11] that a genuine dispute to a material fact exists. See, e.g., Hoffman Chevrolet, Inc. v. Washington County Nat'l Sav. Bank, 297 Md. 691, 712, 467 A.2d 758, 769 (1983).

   The trial court, in accordance with Maryland Rule 2-501(e), shall grant a motion for summary judgment "if the motion and response show that there is no genuine dispute as [*162] to any material fact and that [the moving party] is entitled to judgment as a matter of law." This Court also has stated that "the standard of review for a grant of summary judgment is whether the trial court was legally correct." Goodwich, 343 Md. at 204, 680 A.2d at 1076; see also King v. Board of Educ. of Prince George's County, 354 Md. 369, 376, 731 A.2d 460, 464 (1999); Murphy v. Merzbacher, 346 Md. 525, 530-31, 697 A.2d 861, 864 (1997); Hartford Ins. Co., 335 Md. at 144, 642 A.2d at 224; Gross, 332 Md. at 255, 630 A.2d at 1160; Heat & Power Corp. v. Air Prods. & Chems., Inc., 320 Md. 584, 592, 578 A.2d 1202, 1206 (1990) (citations omitted). We review the trial court's legal conclusions in a summary judgment order de novo.[***12] See Green v. H & R Block, Inc., 355 Md. 488, 502, 735 A.2d 1039, 1047 (1999); Calomiris v. Woods, 353 Md. 425, 434, 727 A.2d 358, 362 (1999).
 
III. When is Maritime Law Applicable?

   Originally, maritime or admiralty law was applicable when any claim arose upon the navigable waters of the United States. See The Plymouth, 70 U.S. (3 Wall) 20, 36, 18 L. Ed. 125 (1866) ("Every species of tort, however occurring, and whether on board a vessel or not, if upon the high seas or navigable waters, is of admiralty cognizance."). That long-standing rule changed, however, with the United States Supreme Court's decision in Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249, 93 S. Ct. 493, 34 L. Ed. 2d 454 (1972). Executive Jet Aviation involved an aviation claim, in which a plane taking off from a runway at a municipal airport, hit a flock of birds, lost engine power, and crashed into Lake Erie, sinking to its bottom. The plaintiffs in that case sought damages under traditional maritime jurisdiction. The Supreme Court, finding the exercise of maritime jurisdiction over a plane crash to be too tenuous, [***13] established a "nexus" test whereby, to exercise maritime jurisdiction, a court must find, not only that the action accrued upon or in navigable waters, but that the incident alleged in the claim bears a "significant relationship to traditional maritime activity." Id. at 268, 93 [*163]S. Ct. at 504, 34 L. Ed. 2d 454. In reaching that new test, the Supreme Court reasoned:

   This locality test . . . was established and grew up in an era when it was difficult to conceive of a tortious occurrence on navigable waters other than in connection with a waterborne vessel. . . .
 
   But it is the perverse and casuistic borderline situations that have demonstrated some of the problems with the locality test of maritime tort jurisdiction. . . .

   Other serious difficulties with the locality test are illustrated by cases where the maritime locality of the tort is clear, but where the invocation of admiralty jurisdiction seems almost absurd. If a swimmer at a public beach is injured by another swimmer or by a submerged object on the bottom, or if a piece of machinery sustains water damage from being dropped into a harbor by a land-based crane, a literal application of the locality test invokes[***14] not only the jurisdiction of the federal courts, but the full panoply of the substantive admiralty law as well. . . . [Some] courts . . . have held in such situations that a maritime locality is not sufficient to bring the tort [**75]within federal admiralty jurisdiction, but that there must also be a maritime nexus . . . .

   . . . More recently, commentators have actively criticized the rule of locality as the sole criterion for admiralty jurisdiction, and have recommended adoption of a maritime relationship requirement as well.
 
Id. at 254-57, 93 S. Ct. at 497-99, 34 L. Ed. 2d 454. The Supreme Court also noted that "another indictment of [the locality] test is to be found in the number of times the federal courts and the Congress, in the interests of justice, have had to create exceptions to it in the converse situation -- i.e., when the tort has no maritime locality, but does bear a relationship to maritime service, commerce, or navigation." Id. at 259, 93 S. Ct. at 500, 34 L. Ed. 2d 454. This included applying the doctrine of seaworthiness and the Jones Act, 46 U.S.C. app. § 688 (1994), which regulated injuries to seamen, [***15] to land-based [*164] acts conducted for the purpose of maritime commerce. The Court also noted the "Extension of Admiralty Jurisdiction Act," 46 U.S.C. § 740, which allows maritime jurisdiction when a waterborne vessel causes damage to a person or thing on land. These various exceptions to the locality rule led the Court to believe that "reliance on the relationship of the wrong to traditional maritime activity is often more sensible and more consonant with the purposes of maritime law than is a purely mechanical application of the locality test." Id. at 261, 93 S. Ct. at 501, 34 L. Ed. 2d 454. Ultimately, the Court held that it is far more consistent with the history and purpose of admiralty to require also that the wrong bear a significant relationship to traditional maritime activity. We hold that unless such a relationship exists, claims arising from airplane accidents are not cognizable in admiralty in the absence of legislation to the contrary.
 
Id. at 268, 93 S. Ct. at 504, 34 L. Ed. 2d 454.

   Ten years later, the Supreme Court discussed maritime jurisdiction again in Foremost Insurance Co. v. Richardson, 457 U.S. 668, 102 S. Ct. 2654, 73 L. Ed. 2d 300 (1982),[***16] a case in which two pleasure boats collided, resulting in the death of a passenger in one of the boats. The Court held that the collision was actionable under federal maritime jurisdiction. Id. at 674, 102 S. Ct. at 2658, 73 L. Ed. 2d 300. In doing so, the Court rejected the insurer's argument that the traditional maritime activity involved in the claim has to be commercial in nature. The Court stated:

    There is no requirement that "the maritime activity be an exclusively commercial one." . . .

   . . . This argument is premised on the faulty assumption that, absent this relationship with commercial activity, the need for uniform rules to govern conduct and liability disappears, and "federalism" concerns dictate that these torts be litigated in the state courts.

   . . . This [federal] interest can be fully vindicated only if all operators of vessels on navigable waters are subject to [*165] uniform rules of conduct. . . . For example, if these two boats collided at the mouth of the St. Lawrence Seaway, there would be a substantial effect on maritime commerce, without regard to whether either boat was actively, or had been previously, engaged in commercial activity. [***17] Furthermore, admiralty law has traditionally been concerned with the conduct alleged to have caused this collision by virtue of its "navigational rules -- rules that govern the manner and direction those vessels may rightly move upon the waters." The potential disruptive impact of a collision between boats on navigable waters, when coupled with the traditional concern that admiralty law holds for navigation, compels the conclusion that this collision between two pleasure boats on navigable waters has a significant relationship with maritime commerce.
 
Id. at 674-75, 102 S. Ct. at 2658, 73 L. Ed. 2d 300 (citation omitted) (footnote [**76] omitted). Thus, the Court held that "because the 'wrong' here involves the negligent operation of a vessel on navigable waters, . . . it has a sufficient nexus to traditional maritime activity to sustain admiralty jurisdiction . . . ." Id. at 674, 102 S. Ct. at 2658, 73 L. Ed. 2d 300. The Court recognized that its holding was made "in light of the need for uniform rules governing navigation, the potential impact on maritime commerce when two vessels collide on navigable waters, and the uncertainty and confusion that would[***18] necessarily accompany a jurisdictional test tied to the commercial use of a given boat . . . ." Id. at 677, 102 S. Ct. at 2659, 73 L. Ed. 2d 300.

   The next major Supreme Court case discussing maritime jurisdiction was Sisson v. Ruby, 497 U.S. 358, 110 S. Ct. 2892, 111 L. Ed. 2d 292 (1990). Sisson involved a fire that started on a yacht moored at a marina on Lake Michigan, which destroyed the yacht, and damaged the marina and several other boats nearby. The Sisson Court noted that Foremost Insurance had created two essential prongs to the "nexus" test: (1) that the incident caused a "potential hazard to maritime commerce" and (2) that the actions surrounding the incident bore a "substantial relationship to traditional maritime activity." [*166] Id. at 362, 110 S. Ct. at 2895-96, 111 L. Ed. 2d 292. Regarding the "potential hazard" element, the Court reasoned:

   Certainly, such a fire has a potentially disruptive impact on maritime commerce, as it can spread to nearby commercial vessels or make the marina inaccessible to such vessels. . . .

   . . . We determine the potential impact of a given type of incident by examining its general[***19] character. The jurisdictional inquiry does not turn on the actual effects on maritime commerce of the fire on Sisson's vessel; nor does it turn on the particular facts of the incident in this case, such as the source of the fire or the specific location of the yacht at the marina, that may have rendered the fire on the Ultorian more or less likely to disrupt commercial activity. Rather, a court must assess the general features of the type of incident involved to determine whether such an incident is likely to disrupt commercial activity. Here, the general features -- a fire on a vessel docked at a marina on navigable waters -- plainly satisfy the requirement of potential disruption to commercial maritime activity.
 
497 U.S. at 362-63, 110 S. Ct. at 2896, 111 L. Ed. 2d 292 (third emphasis added). The Court then discussed the second element that the alleged incidents substantially relate to a traditional maritime activity:

   Our cases have made clear that the relevant "activity" is defined not by the particular circumstances of the incident, but by the general conduct from which the incident arose . . . . Were courts required to focus more particularly on the[***20] causes of the harm, they would have to decide to some extent the merits of the causation issue to answer the legally and analytically antecedent jurisdictional question. Thus, in this case, we need not ascertain the precise cause of the fire to determine what "activity" Sisson was engaged in; rather, the relevant activity was the storage and maintenance of a vessel at a marina on navigable waters.

   . . . Moreover, a narrow focus on navigation would not serve the federal policies that underlie our jurisdictional [*167] test. The fundamental interest giving rise to maritime jurisdiction is "the protection of maritime commerce," and we have said that that interest cannot be fully vindicated unless "all operators of vessels on navigable waters are subject to uniform rules of conduct". The need for uniform rules of maritime conduct and liability is not limited to navigation, but extends at least to any other activities traditionally undertaken by vessels, commercial or noncommercial.
 
Id. at 364-67, 110 S. Ct. at 2897-98, 111 L. Ed. 2d 292 (second emphasis added) (citations omitted) (footnote omitted).

   [**77] Thus, in Foremost Insurance and Sisson, the Supreme Court [***21]recognized that examining an incident for the purposes of maritime jurisdiction is not to be done by subjecting the minutia of a case to the "potential hazard" and "traditional maritime activity" tests; rather, the "general" aspects of the case are to be reviewed under the two prongs. At the same time, those tests are to be defined somewhat liberally. A "potential hazard" to maritime commerce need not include an actual hazard in the case at hand. The "potential hazard" can also be hypothetical, though not fantastical. A "traditional maritime activity" may include any maritime-related activity, not just marine navigation.

   In its most recent discussion of maritime jurisdiction, Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 115 S. Ct. 1043, 130 L. Ed. 2d 1024 (1995), the Supreme Court applied the "nexus" test in this more liberal manner. In that case, the Court reviewed whether maritime jurisdiction applied to a construction accident in the Chicago River, which caused several downtown Chicago buildings to flood. The tortfeasor, Great Lakes Dredge & Dock, had contracted with the City of Chicago to replace pilings around the piers of several bridges[***22] spanning the river. The impact from driving the pilings into the riverbed apparently caused structural damage to a City-owned freight tunnel running underneath the river, which subsequently caused the flooding. The Court reviewed the facts under the rationale of Sisson:

   [*168] The first Sisson test turns . . . on a description of the incident at an intermediate level of possible generality. To speak of the incident as "fire" would have been too general to differentiate cases; at the other extreme, to have described the fire as damaging nothing but pleasure boats and their tieup facilities would have ignored, among other things, the capacity of pleasure boats to endanger commercial shipping that happened to be nearby. We rejected both extremes and instead asked whether the incident could be seen within a class of incidents that posed more than a fanciful risk to commercial shipping.

   Following Sisson, the "general features" of the incident at issue here may be described as damage by a vessel in navigable water to an underwater structure. So characterized, there is little question that this is the kind of incident that has a "potentially disruptive impact on maritime commerce."[***23] As it actually turned out in this suit, damaging a structure beneath the riverbed could lead to a disruption in the water course itself; and, again as it actually happened, damaging a structure so situated could lead to restrictions on the navigational use of the waterway during required repairs.
 
Id. at 538-39, 115 S. Ct. at 1051, 130 L. Ed. 2d 1024 (citation omitted). Regarding the second Sisson test, the Court held that "the 'activity giving rise to the incident' in this suit, should be characterized as repair or maintenance work on a navigable waterway performed from a vessel. Described in this way, there is no question that the activity is substantially related to traditional maritime activity . . . ." Id. at 540, 115 S. Ct. at 1051, 130 L. Ed. 2d 1024 (citation omitted).
 
IV. Is Maritime Law Applicable in this Case?

   The parties do not dispute, as they cannot, that the Chesapeake Bay is a navigable waterway of the United States. Thus, the "locality" test for the application of federal maritime law is satisfied. The trial court below did not address the first prong of the "nexus" test, i.e., whether the incident surrounding[***24] the drowning created a potential hazard to maritime [*169]commerce. Appellee does not challenge appellants' argument that the potential hazard test applies. Noting this, in addition to the facts of the case, we conclude that the "potential hazard" test has been satisfied. During [**78]the incident, appellee had stopped his boat in the middle of a major shipping waterway, the Chesapeake Bay. His boat remained adrift in that waterway while Mr. Parks rescued him and Ms. Parks, which, according to the depositions, took approximately twenty minutes. The parties remained adrift in the area while search parties arrived. Those search parties in turn spent a great amount of time scouring the area of the navigable waterway for Ms. Matthews. Although there is no evidence of any actual disruption of maritime commerce, travel by any other vessel through that portion of the Chesapeake Bay would have been restricted by the search effort. See Polly v. Estate of Carlson, 859 F. Supp. 270, 272 (E.D. Mich. 1994) ("That men were overboard in an emergency situation by itself is likely to disrupt commercial activity; this event ordinarily occasions both air and sea searches and rescue operations. Similarly, [***25]leaving a vessel to float unmanned in open water has the potential to disrupt commercial navigation." (citations omitted)). Moreover, the search effort by the Coast Guard and the Maryland Department of Natural Resources Police for a person who has gone overboard from a vessel is a traditional maritime activity, in and of itself, as the maritime history of the country, i.e., its lifesaving stations and rescue activities, indicates.

   The dispute in this case thus revolves around whether appellee's actions, or omissions, were "substantially related to a traditional maritime activity" under the second "nexus" test. We note initially that appellee argues that this test does not apply because he "was not engaged in commercial shipping at the time of the accident." While this may be true in fact, it is clearly incorrect, if not disingenuous, to analyze the case in purely commercial terms after Foremost Insurance and Sisson. See also Yamaha Motor Corp. v. Calhoun, 516 U.S. 199, 206, 116 S. Ct. 619, 623, 133 L. Ed. 2d 578 (1996) (noting that admiralty jurisdiction existed when a jet skier was killed after [*170] striking another vessel). As those cases point out, the need[***26] for uniform rules of maritime conduct, and the potential to disrupt others involved in commercial maritime activity, extends to all vessels, commercial or noncommercial. See supra. Thus, the noncommercial nature of the maritime "activity" involved in this case is irrelevant under the "nexus" test.

   Appellee would also have us interpret the general conduct represented in the incident as "swimming and diving." In doing so, he notes the United States Court of Appeals for the Fourth Circuit's opinion in Foster v. Peddicord, 826 F.2d 1370 (4th Cir. 1987). In that case, Mr. Foster, a guest on Mr. Peddicord's boat, which was anchored in a tributary of the Chesapeake Bay, dove into the water and was injured. The Fourth Circuit held that maritime law did not apply. Id. at 1376.
 
Foster is inapposite for two reasons. First, as appellants point out, the Fourth Circuit noted that it by no means suggested "that the act of diving from a boat could never provide a nexus for the exercise of admiralty jurisdiction. Under certain circumstances this activity could bear a relationship to navigational conduct." Id. at 1376 n.3; see also [***27]  Wright v. United States, 883 F. Supp. 60, 63 (1994) (finding that a maritime "nexus" existed when a woman dove from a pleasure boat and injured her finger). Second, pursuant to its earlier statement in Oliver ex rel. Oliver v. Hardesty, 745 F.2d 317, 320 (4th Cir. 1984), that the "proper emphasis is on the navigation of the pleasure boat involved," Foster focused on the lack of "navigational error" because the boat was anchored. See 826 F.2d at 1375, 1376. After the application of maritime law to a fire in Sisson and to piledriving in Grubart, however, it is clear that marine navigation is not the only activity to which maritime jurisdiction applies. n4 See Sisson, [*171] 497 U.S. [**79] at 367, 110 S. Ct. at 2898, 111 L. Ed. 2d 292 ("The need for uniform rules of maritime conduct and liability is not limited to navigation, but extends at least to any other activities traditionally undertaken by vessels.").

n4 Counsel for appellee also cites Brock v. Lewis, 86 F.3d 1148 (4th Cir.), cert. denied, 519 U.S. 993, 117 S. Ct. 482, 136 L. Ed. 2d 377 (1996), for the same proposition. Appellee's counsel does not indicate that Brock is an unreported opinion and that the citation given is to a disposition table. We find this citation unpersuasive. We are also unpersuaded by appellee's citation of Kunreuther v. Outboard Marine Corp., 715 F. Supp. 1304 (E.D. Pa. 1989), which, as appellee does note, was later set aside by the federal district court in that case because maritime jurisdiction was conferred by federal statute. See Kunreuther v. Outboard Marine Corp., 757 F. Supp. 633 (E.D. Pa. 1991).

[***28]

   We reject the trial court's reliance on Souther v. Thompson, 754 F.2d 151 (4th Cir. 1985), for similar reasons. Souther involved an accident between two water skiers being towed from the same boat. The Fourth Circuit held "that admiralty jurisdiction did not exist . . . because the controversy between the parties does not arise out of an alleged navigational error." Id. at 153. As noted, supra, maritime "activity" is not restricted to navigation only. Souther is also factually distinguishable.

   We also reject appellee's reliance on Williams v. Ingram, 320 Ark. 615, 899 S.W.2d 454 (1995), and Woltering v. Outboard Marine Corp., 245 Ill. App. 3d 684, 185 Ill. Dec. 791, 615 N.E.2d 86, appeal denied, 152 Ill. 2d 582, 190 Ill. Dec. 912, 622 N.E.2d 1229 (1993). In Williams, 320 Ark. at 621-22, 899 S.W.2d at 458, a drowning case similar to the case sub judice, the Arkansas Supreme Court rejected the application of maritime law largely because the decedent's wife had not raised maritime law in the trial court below and was given adequate jury instructions based on state tort[***29] law concerning the duty of care owed to the decedent. We disagree with the holding in Woltering, in which the decedent was killed after falling from a boat while it was being operated on the Mississippi River. The Illinois Appellate Court held that maritime law did not apply, noting that "the relevant activity giving rise to the incident was aquatic recreation involving a pleasure boat," and that there was no "evidence that negligent navigation played a role in the accident." Woltering, 245 Ill. App. 3d at 687, 688, 185 Ill. Dec. 791, 615 N.E.2d at 88, 89. Accidents occurring during the navigation of a vessel, whether the navigation itself [*172]was negligent or not, generally fall within the "nexus" test. See Mink v. Genmar Indus., Inc., 29 F.3d 1543, 1545-47 (11th Cir. 1994) (holding that maritime jurisdiction extended to a products liability action when the injured party broke a vertebra during operation of a speed boat, due to the lack of a handrail). That the involved activity was recreational also had no import under the edicts of Foremost Insurance. n5 

n5 Vann v. Willie, 38 Md. App. 49, 379 A.2d 411 (1977), aff'd, 284 Md. 182, 395 A.2d 492 (1978), applied state common law when a swimmer was struck by a boat towing a water skier. In Vann, the Court of Special Appeals relied on Executive Jet Aviation. Because we held that there was not any proximate causation under either state or federal law, we did not endorse the Court of Special Appeals' position. We stated: "it was unnecessary for the Court of Special Appeals to address the issue as to when . . . admiralty law would be applicable . . .; we still regard this question as unanswered." 284 Md. at 183-84, 395 A.2d at 493. Moreover, the Court of Special Appeals construed "traditional maritime activities" to mean commercial activity, 38 Md. App. at 61 n.19, 379 A.2d at 418 n.19, an interpretation that was clearly rejected by Foremost Insurance, as noted, supra. The Court of Special Appeals also stated that "swimming and waterskiing" were not traditional maritime activities.  Id. at 61, 379 A.2d at 418. Mr. Vann, however, had been struck by a negligently operated boat while swimming. (The claim before the court was for the negligent entrustment of the boat to the captain.) A number of cases hold that swimmers struck by vessels may pursue claims under federal maritime law. See Neely v. Club Med Management Servs., Inc., 63 F.3d 166, 178-80 (3d Cir. 1995); In re Paradise Holdings, Inc., 795 F.2d 756, 758-60 (9th Cir.), cert. denied, 479 U.S. 1008, 107 S. Ct. 649, 93 L. Ed. 2d 705 (1986); Oliver, 745 F.2d 317, Medina v. Perez, 733 F.2d 170 (1st Cir. 1984), cert. denied, 469 U.S. 1106, 105 S. Ct. 778, 83 L. Ed. 2d 774 (1985); Bodnar v. Hi-Lex Corp., 919 F. Supp. 1234, 1238-40 (N.D. Ind. 1996); Schumacher v. Cooper, 850 F. Supp. 438, 441-42, 447 (D.S.C. 1994); Choat v. Kawasaki Motors Corp., 675 So. 2d 879, 880-84 (Ala. 1996).

[***30]

   [**80] Finally, we reject appellee's "swimming and diving" analysis based on our own independent analysis of this case under the "nexus" test. As we have noted, the Supreme Court's interpretation of the "nexus" test and how that test is to be applied requires us to take a "general" view of the incident involved. To call the incident in the case sub judice "swimming and diving" would focus on one specific fact in the case -- that Ms. Matthews was not on the boat at the time of her death. Factually, there is more to this case than just "swimming and [*173] diving," particularly when compared with the facts in the "swimming and diving" cases cited by appellee, Foster and Williams, as well as another "swimming and diving" case cited by appellee, and relied on by the trial court below, Smith v. Knowles, 642 F. Supp. 1137 (D. Md. 1986). n6 In those cases, the injured party clearly dove from the boat voluntarily. In the case sub judice, it is unclear whether Ms. Matthews dove or fell into the water. Cf.  Polly, 859 F. Supp. at 273 (finding that, in a drowning accident, navigation was the relevant maritime activity because it was unknown how the captain[***31] and his passenger ended up in the water). In addition, if Ms. Matthews [*174] did dive into the water, she did so at the implied encouragement of appellee, who, unlike the boat operators in the cases he cites, dove into the water himself, despite the potentially hazardous swimming conditions. The cases cited by appellee do not involve allegations, as this case does, that the boat captain abandoned his helm, and did so without taking proper precautions for the safety of himself and his guests.

n6 Appellants also note that Smith and Foster relied on a four-factor test adopted by the Fourth Circuit in Oman v. Johns-Manville Corp., 764 F.2d 224, 230 (4th Cir. 1985). In Sisson, the Supreme Court was asked to adopt a similar multifactor test in determining the existence of maritime jurisdiction. The Court declined, noting that "the formula initially suggested by Executive Jet Aviation and more fully refined in Foremost and in this case provides appropriate and sufficient guidance to the federal courts." Sisson, 497 U.S. at 366 n.4, 110 S. Ct. at 2898 n.4, 111 L. Ed. 2d 292 (1990). A similar request to apply a multifactor test was posed to the Court in Grubart, which the Court again rejected, with stronger language:

   It is worth recalling that the Sisson tests are aimed at the same objectives invoked to support a new multifactor test, the elimination of admiralty jurisdiction where the rationale for the jurisdiction does not support it. . . . 

   . . . .

   . . . For better or worse, the case law has thus carved out the approximate shape of admiralty jurisdiction in a way that admiralty lawyers understand reasonably well. As against this approach, so familiar and relatively easy, the proposed four- or seven-factor test would be hard to apply, jettisoning relative predictability for the open-ended rough-and-tumble of factors, inviting complex argument in a trial court and a virtually inevitable appeal.

   . . . Invoking a district court's admiralty jurisdiction under 28 U.S.C. § 1333 . . . has traditionally been quite uncomplicated.

   Reasons of practice, then, are as weighty as reasons of theory for rejecting the city's call to adopt a multifactor test for admiralty jurisdiction . . . .
 
Grubart, 513 U.S. at 544-45, 547-48, 115 S. Ct. at 1053-54, 1055, 130 L. Ed. 2d 1024. Appellants argue that the Supreme Court's disagreement with multifactor tests in Sisson and Grubart implicitly overrules the cases appellee cites, Smith and Foster. We decline to address that issue, but note that, as appellants point out, it is inappropriate to apply a multifactor test when determining whether maritime law applies in a given case.

[***32]

   Applying a broader view of the "traditional maritime activity" in this case, we would equate appellee's actions to maritime navigation, or, to be more accurate, the lack of proper navigation. Appellee's arguments imply, and the trial court below agreed, that because he was not physically operating the boat at the time of Ms. Matthews' drowning, he was not engaged in any maritime activity. "Navigation" involves much more than the simple operation of a vessel. The Random House Dictionary of the English Language [**81] 954 (unabr. ed. 1983), for instance, defines "navigate" in part as "2. to direct or manage (a ship . . . ) on its course. 3. to ascertain or plot and control the course or position of (a ship . . . )" and "navigation" as "2. the art or science of plotting, ascertaining, or directing the course of a ship . . . ."

   What appellants allege in their complaint is appellee's failure, as captain, to manage, direct, and position his vessel properly. For appellee to argue that he cannot be held liable for negligent navigation because he was not behind the helm at the time of the accident is spurious. First, appellee clearly navigated the boat, in the operational sense[***33] of the word, by stopping it and leaving it adrift in a major navigable waterway prior to his diving from the boat. Next, he apparently chose to abandon the helm allegedly without taking the proper precautions that appellants claim maritime law requires: he did not warn the others of his intentions, failed to appoint anyone to maintain the helm or act as a lookout, did not provide adequate safety gear or procedures, and failed to provide a means of ingress to the boat. Finally, appellants allege that appellee failed to assist in the rescue of a woman [*175] overboard from his vessel. All of these allegations, if proved, would support appellants' claim that appellee failed to properly manage or direct his boat under the duties generally assessed upon maritime captains by federal common law.

   The United States District Court for the District of Hawai'i reached a similar conclusion in the case of In re Pacific Adventures, Inc., 5 F. Supp. 2d 874 (D. Hawai'i 1998). Pacific Adventures involved a scuba diver who was run over by a boat carrying passengers to another dive expedition. She sued the operator of the boat that struck her and the company responsible for the dive expedition[***34] that she had taken. The federal district court ruled that the injured woman's action against her own divemaster stated a claim under maritime jurisdiction because her complaint included allegations that [the divemaster] negligently selected a location to anchor, failed to display a proper dive flag, failed to communicate with another vessel, failed to mark the anchor line properly, and failed to keep or use adequate emergency equipment. These allegations involve the operation of a vessel and the failure to administer first aid, activities that establish a substantial relationship with traditional maritime activity.
 
Id. at 878. In addition, the Third Circuit in Sinclair v. Soniform, Inc., 935 F.2d 599, 602 (3rd Cir. 1991), has held that "the transport and care of passengers bears a substantial relationship to traditional maritime activity." Sinclair involved another scuba accident in which, due to equipment failure, a diver surfaced too rapidly and suffered decompression sickness. The crew administered no first aid and continued the dive for two and one-half hours after the diver surfaced and became ill. The Third Circuit noted that "the injuries[***35] that Sinclair attributes to the crew relate to their duty to provide adequate care to an injured passenger, which is an integral part of the carriage of passengers." Id. at 603. See also Price v. Price, 929 F.2d 131, 133, 136 (4th Cir. 1991) (holding that maritime jurisdiction "emanated from the navigation of a vessel" when the complaint alleged that the captain, in attempting to beach his boat, failed to anchor the boat [*176] and position it properly for disembarking passengers to exit from the side, rather than the bow, and because he approached the shore too rapidly, causing a wake high enough to topple the victim).

   Even if "navigation" of a vessel is too broad a definition for the appellee's activities in this case, there are other cases, which reflect that the individual components of appellee's actions constituted activities in substantial relation to traditional maritime activities. We have already mentioned Pacific Adventures and Sinclair, [**82] cases in which courts in other jurisdictions have found that failure to render first aid to a maritime passenger constituted an activity substantially related to traditional maritime activity. See supra[***36] ; see also Odeco Oil & Gas Co. v. Bonnette, 4 F.3d 401, 403 n.2 (5th Cir. 1993) (holding that a botched man- overboard drill was "sufficiently salty to sustain admiralty jurisdiction"), cert. denied, 511 U.S. 1004, 114 S. Ct. 1370, 128 L. Ed. 2d 47 (1994); In re Kanoa, Inc., 872 F. Supp. 740, 745 n.3 (D. Hawai'i 1994) ("Any claims against the crew for failure to adequately respond to [an] emergency would be actionable under admiralty jurisdiction."). n7 We also note that Pacific Adventures and Price, [*177] supra, both involved the allegedly improper positioning of a boat in relation to disembarking passengers. See also In re Bird, 794 F. Supp. 575, 581 (D.S.C. 1992) ("The anchoring of a boat in navigable waters is a traditional maritime activity."). In this case, when appellee abandoned his helm, he left his boat adrift in deep navigable waters during somewhat inclement weather. Those factors contributed to the difficulty he and Ms. Parks had in attempting to reboard the boat, and, more important, to the inability of Ms. Matthews to do the same.

n7 We also note that 46 U.S.C. §§ 2303, 2304 (1994), provide a general duty to render assistance to those injured or lost at sea. Section 2303, for instance, states in relevant part:
 
§ 2303. Duties related to marine casualty assistance and information
 
(a) The master or individual in charge of a vessel involved in a marine casualty shall--

   (1) render necessary assistance to each individual affected to save that affected individual from danger caused by the marine casualty, so far as the master or individual in charge can do so without serious danger to the master's or individual's vessel or to individuals on board; and
 
. . . .
 
(b) An individual violating this section or a regulation prescribed under this section shall be fined not more than $1,000 or imprisoned for not more than 2 years. The vessel also is liable in rem to the United States Government for the fine.
 
Section 2304 adds:
 
§ 2304. Duty to provide assistance at sea
 
(a) A master or individual in charge of a vessel shall render assistance to any individual found at sea in danger of being lost, so far as the master or individual in charge can do so without serious danger to the master's or individual's vessel or individuals on board.
 
(b) A master or individual violating this section shall be fined not more than $1,000, imprisoned for not more than 2 years, or both.
 
By citing these two provisions, we do not mean to indicate that appellee violated either law or that, more generally, either law establishes negligence per se in any given case. We only note that these provisions generally impose upon a boat captain, such as appellee, a duty to render assistance, and that failure to provide such assistance can subject the captain to federal criminal jurisdiction, and the boat, under section 2303, to federal admiralty jurisdiction in rem. In this case, appellants allege that appellee, as captain, failed to provide proper rescue measures and to properly aid in the efforts to rescue his passenger.

[***37]

   In addition, there are cases applying maritime law to allegations of the failure of the boat operator to provide proper means of ingress and egress. Appellants, for instance, cite White v. United States, 53 F.3d 43 (4th Cir. 1995), in which a security guard making rounds at a naval station disembarked from a naval vessel, stumbled and collided with equipment on the pier. The Fourth Circuit, in holding that maritime jurisdiction existed, noted that "the general features of this incident may be described as injury to a person disembarking from a vessel in navigable water." Id. at 47. In Butler v. American Trawler Co., 887 F.2d 20 (1st Cir. 1989), aff'g  707 F. Supp. 29 (D. Me. 1989), the plaintiff, while climbing aboard a ship via its rigging, because the ladder down to the boat was faulty, injured her finger. The First Circuit upheld the trial court's finding of maritime jurisdiction in the case, noting that "the boarding of a ship bears a significant relation to traditional [*178] maritime activities, for . . . one does not normally board a ship in quite the same way one enters a building, an airplane, or a car." Id. at 21.[***38] The federal district court in Butler, 707 [**83] F. Supp. at 33, had also held that maritime law applied, in part because "the gist of [Butler]'s complaint is that she was not provided a safe means of boarding, which failure was the proximate cause of her injury." See also Christiansen v. Big Island Fish Connection, Inc., 885 F. Supp. 207, 209-10 (D. Hawai'i 1994) (finding that maritime jurisdiction existed when the relevant maritime activity was the boarding of a docked boat); O'Hara v. Bayliner, 89 N.Y.2d 636, 645, 657 N.Y.S.2d 569, 679 N.E.2d 1049, 1053-54 (holding that an injury to a disembarking passenger, caused by a defective cleat on an anchored boat was subject to maritime law), cert. denied, 522 U.S. 822, 118 S. Ct. 78, 139 L. Ed. 2d 37 (1997).

   A number of cases also indicate that the proper repair and maintenance of vessels fall within the panoply of "traditional maritime activities." See, e.g., Grubart, Inc., 513 U.S. at 540, 115 S. Ct. at 1051, 130 L. Ed. 2d 1024 (noting that once "characterized as repair or maintenance work on a navigable waterway . . . there is no question that[***39] the activity is substantially related to traditional maritime activity . . . ."); Sisson, 497 U.S. at 367, 110 S. Ct. at 2898, 111 L. Ed. 2d 292 ("Storing and maintaining a vessel . . . is substantially related to traditional maritime activity."); White, 53 F.3d at 48 (noting that guarding vessels docked for repairs and maintenance is substantially related to traditional maritime activity); Bubla v. Bradshaw, 795 F.2d 349, 352 (4th Cir. 1986) (noting that, in a negligence claim for the onboard electrocution of a boat inspector, the case "touched upon the maintenance and repair of seagoing vessels. . . . These concerns are maritime in nature."). Combining these two standards, i.e., providing proper means of ingress and proper repair and maintenance of vessels in general, we hold that maritime law applies to appellants' allegations that, having implicitly invited Ms. Matthews to get into the water by virtue of his doing so in her presence, appellee failed to adequately prepare for Ms. Matthews' reboarding of his craft, and that he failed to supply or utilize, or [*179] to direct others to utilize, the safety equipment necessary to rescue Ms. [***40] Matthews. In addition, maritime law applies to appellants' allegation that appellee failed to adequately warn Ms. Matthews (and the others) of the potential hazards to her safety. See McClenahan v. Paradise Cruises, Ltd., 888 F. Supp. 120, 122 (D. Hawai'i 1995) (finding, in a case in which a number of divers received ear injuries during a "Snuba" (a cross between scuba and snorkeling) dive, that "maritime jurisdiction is also proper because Plaintiffs have alleged negligence for failure to warn and aid on the part of the vessel.").
 
V. Did a Material Dispute of Fact Exist?

    We have already noted, supra, the dispute in fact among the three witnesses in their depositions, namely as to whether appellee made sufficient efforts to attempt to rescue Ms. Matthews. This dispute in fact is material in that it may reflect on whether appellee breached any duty of care he may have owed Ms. Matthews as the captain of the vessel. There is also a dispute as to whether appellee disengaged the engines prior to abandoning his helm, which may also affect his liability under federal maritime law. Of course, the most apparent dispute of fact, disregarded by the trial court, [***41] is whether Ms. Matthews fell or jumped into the water. That fact is material to the proximate cause of Ms. Matthews' death and any negligence on her part. With these apparent material facts in dispute, it was improper for the trial court to grant summary judgment to appellee.
 
VI. Conclusion

   We hold that maritime law applies to the facts and allegations of this case. Thus, it was legally incorrect for the trial court to apply non-maritime law and rule that appellee owed no legal duty to rescue Ms. Matthews. Whatever duty of care appellee may have owed to the decedent is to be [**84] determined, on remand, under the federal maritime law. In addition, there was a dispute as to material facts before the circuit court, which the court failed to recognize. For both reasons, [*180] it was inappropriate for the trial court to grant summary judgment to appellee. Accordingly, we reverse the order of the circuit court and remand for further proceedings.

   JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY REVERSED; CASE REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION; COSTS TO BE PAID BY APPELLEE. 

EUGENE SHERMAN COLVIN-EL v. STATE OF MARYLAND 
Misc. No. 42, September Term, 1999
 
COURT OF APPEALS OF MARYLAND
 
359 Md. 49; 753 A.2d 13; 2000 Md. LEXIS 316

 June  7, 2000, Filed

   PRIOR HISTORY:  [***1] Application for Leave to Appeal (Circuit Court for  Anne Arundel  County). Robert H. Heller, Jr., JUDGE.

CORE TERMS:  murder, proportionality review, death sentence, leave to appeal, fingerprint, basement, door, principalship, inside, dissenting opinion, death penalty statute, re-sentencing, first degree murder, death penalty, weak, strong argument, process of law, disproportionately, disproportionate, detective, cabinet, utterly, cruel and unusual punishment, actual perpetrator, stay of execution, remuneration, above-quoted, weakness, sentence, surmise

COUNSEL: SUBMITTED BY: John H. Morris, Jr. and Jose Felipe Anderson of Baltimore, MD., FOR APPELLANT.
 
SUBMITTED BY: Annabelle L. Lisic, Assistant Attorney General, Baltimore, MD. (J. Joseph Curran, Jr., Attorney General of Maryland), FOR APPELLEE.

JUDGES: SUBMITTED TO: Bell, C.J.; Eldridge, Rodowsky, Raker, Wilner, Cathell, and Harrell, JJ. Dissenting Opinion by Eldridge, J., in which Bell, C.J., joins. 

OPINION: [**13] [*50]
 
Filed: June 7, 2000
 
ORDER

   The Court having considered the application for leave to appeal and motion for stay of execution and the response filed thereto in the above-captioned case, it is this 7th day of June, 2000
 
ORDERED, by the Court of Appeals of Maryland, that the application and motion be, and they are hereby, DENIED.

   /s/ Lawrence F. Rodowsky Judge Lawrence F. Rodowsky
 
Chief Judge Bell and Judge Eldridge dissent (See attached dissenting opinion).

 DISSENTBY: Eldridge

DISSENT:  
Dissenting Opinion by Eldridge, J.,
 
in which Bell, C.J., joins.
 
Filed: June 7, 2000
 
Eldridge, J., dissenting:

   I respectfully dissent from the majority's denial of Colvin-El's "Application For Leave To Appeal" and denial of his "Motion For Stay of Execution."

   Colvin-El, who is scheduled to be executed during the period of June 12-17, 2000, filed in the Circuit Court for Anne Arundel County a "Motion for Appropriate Relief to Obtain Proportionality Review" which the Circuit Court denied on May 4, 2000. Colvin-El[***2] filed in this Court on June 1, 2000, an application for leave to appeal from that denial, asking that his motion filed in the Circuit Court be treated as a petition for post conviction relief under the Maryland Post Conviction Procedure Act, Code (1957, 1996 Repl. Vol., 1999 Supp.), Art. 27, § 645A. I would treat the proceeding as one under the Post Conviction Procedure Act, and would grant the application for leave to appeal and the motion for a stay. In addition, I would vacate the Circuit Court's order and remand the case to the Circuit Court with directions to vacate the death sentence and impose a sentence of life imprisonment.

   [**14] Under Maryland law, for a person convicted of first degree murder to be eligible for a death sentence, that person must have been "a principal in the first degree." Code (1957, 1996 Repl. Vol., 1999 Supp.), Art. 27, § 413(e)(1). In other words, the death penalty may not be imposed unless the defendant was the actual perpetrator of the murder. The only exception to this requirement is a defendant who "employed another [*51] person to commit the murder and the murder was committed pursuant to an agreement or contract for remuneration or the promise of remuneration.[***3] " Art. 27, § 413(d)(7).

   When this case was last before the Court, Judge Bell (now Chief Judge Bell) and I dissented from the affirmation of the death penalty on the ground that "the evidence was wholly insufficient to establish [Colvin-El's] principalship in the first degree," Colvin-El v. State, 332 Md. 144, 186, 630 A.2d 725, 746 (1993) (Bell, J., joined by Eldridge, J., dissenting), cert. denied, 512 U.S. 1227, 114 S. Ct. 2725, 129 L. Ed. 2d 849 (1994). For the reasons set forth in Judge Bell's dissenting opinion, 332 Md. at 185-200, 630 A.2d at 746-753, I continue to believe that the evidence was not sufficient to establish, beyond a reasonable doubt, that Colvin-El was the principal in the first degree. As discussed at length in Judge Bell's opinion, 332 Md. at 189-200, 630 A.2d at 748-753, the evidence at Colvin-El's 1992 re-sentencing proceeding disclosed that the basement door, which according to the State was Colvin-El's point of entry to the house in which the murder occurred, and where his fingerprints were found on the outside, could only be opened four inches because it was blocked from the inside by a metal[***4] storage cabinet. Furthermore, the investigating detective testified that he found no evidence that the cabinet had been moved. Also, the area of the basement in front of the door showed no signs of entry and was not disturbed. There was utterly no evidence showing that Colvin-El was ever inside the house. None of the numerous fingerprints inside of the house could be identified as belonging to Colvin-El, and one of those fingerprints, found on an item in the victim's handbag, definitely belonged to someone other than Colvin-El. When this case was before us most recently, Judge Bell summarized the evidence relating to first degree principalship as follows (332 Md. at 197-198, 630 A.2d at 751-752):

   "Unless, given the State's theory, [Colvin-El] can be placed in the house through the approximately four inch opening in the basement door, there simply is no evidence that he committed the murder. The State's only theory was that the petitioner, acting alone, entered the house through [*52] the basement door, and committed the murder when he was surprised by the victim. That theory works only if the petitioner is placed inside the house, in the manner alleged by the State. As I[***5] have demonstrated, the testimony of Detective Sturgeon, which the State offered in support of its theory, was wholly insufficient in that regard. Accordingly, it is appropriate to repeat that, in the context of proving first degree principalship, it is not enough to surmise as the Court did in Colvin-el II, that someone entered the house and killed the victim. The critical inquiry is who that someone was. Surmise simply is not acceptable as proof.

   "The inferences to be drawn from the circumstantial evidence connecting the petitioner to the crimes may suffice to sustain the petitioner's guilt of first degree murder. Given the fingerprint evidence, they clearly do not suffice to sustain the petitioner's first degree principalship. Indeed, on that issue, the best that can be said is that the case is exceedingly weak. Moreover, the evidence as to the point of entry, indicating as it does that the point the State identifies could only be a point of attempted entry, further exposes the weakness of the State's circumstantial case against the petitioner as the actual [**15] perpetrator of the murder. It becomes weaker still when the evidence of other suspects, combined with the neighbors' testimony[***6] concerning the presence in the area at the time the crimes occurred, of other persons who could possibly have committed the offenses, are considered."

   A jury verdict against a criminal defendant, based on insufficient evidence, is a denial of due process of law guaranteed by the Fourteenth Amendment to the Constitution of the United States and Article 24 of the Maryland Declaration of Rights.  Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Colvin-El v. State, supra, 332 Md. at 188- 189, 630 A.2d at 747-748; Wiggins v. State, 324 Md. 551, 566-567, 597 A.2d 1359, 1366 (1991), cert. denied , 503 U.S. 1007, 112 S. Ct. 1765, 118 L. Ed. 2d 427 (1992). This Court should not [*53] permit the State of Maryland to carry out an execution in violation of due process of law. n1 

n1 The State, in its opposition to Colvin-El's application for leave to appeal, states as follows (Response In Opposition To Application For Leave To Appeal And Motion For Stay at p. 6, n. 2):

   "Judge Eldridge, dissenting in Wiggins v. State, 324 Md. 551, 597 A.2d 1359 (1991), referred to Colvin-El's case as one where 'there was little question that the defendant committed the murder as a principal in the first degree.' Id. at 587."
 
The State's quotation is somewhat out of context. The entire passage from the dissenting opinion in Wiggins v. State, 324 Md. 551, 587-588, 597 A.2d 1359, 1376-1377 (1991), is as follows:

   "Under the present death penalty statute, this Court has never upheld a death sentence on evidence as weak as that introduced in this case. In the numerous cases where we have upheld the death sentence, there was little question that the defendant committed the murder as a principal in the first degree. Evidence which supported these findings included a confession by the defendant, Stebbing v. State, supra[, 299 Md. 331, 473 A.2d 903]; eyewitness testimony to the incident, Gilliam v. State, 320 Md. 637, 579 A.2d 744 (1990), cert. denied, 498 U.S. 1110, 111 S. Ct. 1024, 112 L. Ed. 2d 1106 (1991); Huffington v. State, 304 Md. 559, 500 A.2d 272 (1985), cert. denied, 478 U.S. 1023, 106 S. Ct. 3315, 92 L. Ed. 2d 745 (1986); White v. State, 300 Md. 719, 481 A.2d 201 (1984), cert. denied, 470 U.S. 1062, 105 S. Ct. 1779, 84 L. Ed. 2d 837 (1985); and fingerprints of the defendant at the scene coupled with the defendant's possession of the victim's property, Colvin v. State, 299 Md. 88, 472 A.2d 953, cert. denied, 469 U.S. 873, 105 S. Ct. 226, 83 L. Ed. 2d 155 (1984)."
 
It should be noted that the above-quoted passage was written in 1991, which was prior to the 1992 re-sentencing hearing in Colvin-El's case. It was at the 1992 re-sentencing hearing that the critical evidence concerning the opening of the basement door and the fingerprints in the house was developed in detail. The weakness of the State's case against Colvin-El became apparent during the 1992 hearing. In my view, as a result of the 1992 proceeding, the evidence showing that Colvin-El was the principal in the first degree is just as weak as the evidence showing that Wiggins was the principal in the first degree.

[***7]

   Although the majority of the Court is unwilling to reconsider its earlier decision concerning the sufficiency of the evidence to establish that Colvin-El was the principal in the first degree, there is another substantial issue in this case which, at the very least, warrants full briefing and argument before this Court. Colvin-El's petition in the Circuit Court and his application for leave to appeal raise the matter of proportionality review. At the time of the offense in this case, the Maryland death penalty statute required that this Court determine, [*54] inter alia, "whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant." Code (1957, 1982 Repl. Vol.), Art. 27, § 414(e)(4). Subsequently, the General Assembly repealed the above-quoted provision for statutory proportionality review. Colvin-El argues that, because the offense in this case occurred prior to the repeal of the proportionality review provision, ex post facto considerations require that proportionality review remain applicable to this case. Although acknowledging that this Court did engage in proportionality review when this[***8] case was first before us on direct appeal, Colvin [**16] v. State, 299 Md. 88, 472 A.2d 953 (1984), cert. denied, 469 U.S. 873, 105 S. Ct. 226, 83 L. Ed. 2d 155 (1984), Colvin-El points out that some of the critical facts concerning the case came to light after that time. He also points out that this Court, in conducting its earlier proportionality review, compared this case to five other cases and that, in those cases, none of the defendants ultimately received a death sentence. In addition, Colvin-El suggests that, even without a statutory basis, this Court has the ability to review a capital sentence which is wholly disproportionate to the sentences in other first degree murder cases.

   In my view, there may well be merit in Colvin-El's argument regarding proportionality review under the former statute. Moreover, if the Legislature had never provided for proportionality review, a capital sentencing scheme which in practice results in wholly irrational applications of the death sentence cannot be squared with the equal protection component of Article 24 of the Maryland Declaration of Rights and with the "cruel and unusual punishment" prohibition in Article[***9] 25 of the Declaration of Rights. n2

n2 The Maryland Constitution contains two "cruel and unusual punishment" prohibitions. One, directed at the General Assembly, is in Article 16 of the Declaration of Rights. The other, directed at "the Courts of Law," is contained in Article 25 of the Declaration of Rights.

   The Maryland death penalty statute, by requiring the judge or jury to find the presence of one or more specified aggravating [*55] factors and to weigh them against mitigating factors, in theory is designed to impose the death sentence only on those committing the more heinous first degree murders. In light of 22 years experience under that statute, a strong argument could be made that, in practice, the statute has utterly failed to produce this result. Moreover, that argument would include the contention that there is little or no rationality underlying the actual imposition of the death penalty in Maryland, and that the penalty disproportionately falls on poor African-American males accused of murdering white[***10] victims. This raises substantial issues under Articles 24, 25, and 46 of the Maryland Declaration of Rights. Beyond that, a strong argument can be made that, in Maryland, "this unique penalty" has been "wantonly and . . . freakishly imposed." Furman v. Georgia, 408 U.S. 238, 310, 92 S. Ct. 2726, 2763, 33 L. Ed. 2d 346, 390 (1972) (Stewart, J., concurring). At the very least, this Court should grant Colvin-El's application and consider the argument that the statute is being disproportionately applied.

   Chief Judge Bell has authorized me to state that he agrees with the views expressed herein. 

Drayer v. Hillman, Brown 
Pet. Docket No. 605, September Term, 1999
 
COURT OF APPEALS OF MARYLAND
 
359 Md. 29; 753 A.2d 2; 2000 Md. LEXIS 355

 June  7, 2000, Decided

NOTICE: 

  [*1]  DECISION WITHOUT PUBLISHED OPINION 

PRIOR HISTORY:  (Nos. C-97-34605 & C-97-48082, Circuit Court for  Anne Arundel  County).

OPINION: Petition for Writ of Certiorari denied. 

CHARLES F. STEIN, III, et ux. v. ROBERT E. SMITH, JR., d/b/aCURTIS CONTRACTORS, INC. 
No. 101 September Term, 1999
 
COURT OF APPEALS OF MARYLAND
 
358 Md. 670; 751 A.2d 504; 2000 Md. LEXIS 248

 May  15, 2000, Filed

   PRIOR HISTORY:  [***1] Certiorari to the Court of Special Appeals. Circuit Court for  Anne Arundel  County. Case No. C-1997-37469 CN. Eugene M. Lerner, JUDGE.

DISPOSITION: JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED. CASE REMANDED TO THAT COURT FOR THE ENTRY OF A JUDGMENT AFFIRMING THE JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY. COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID BY THE RESPONDENT, ROBERT E. SMITH, JR. 
CASE SUMMARY 

PROCEDURAL POSTURE:  Petitioner property owners appealed a decision reversing a trial court's summary judgment grant in their favor, entered by the Court of Special Appeals (Maryland), in a case where respondent building contractor sued them for breach of contract and quantum meruit arising out of construction work respondent did on petitioners' property.

OVERVIEW:  Respondent building contractor sued petitioner property owners for work respondent did on petitioners' property. The original complaint filed just before the limitations period expired named respondent's purported company, Curtis Contractors, Inc., as plaintiff. Petitioners moved to dismiss, primarily on grounds that Curtis Contractors forfeited its charter in 1983. Respondent amended his complaint naming himself, doing business as Curtis Contractors, as plaintiff. His amended complaint, filed beyond the limitations period, stated respondent was Curtis Contractors' sole owner, operator, proprietor, and principal. The trial court granted petitioners' summary judgment motion. The Court of Special Appeals reversed and held petitioners were not prejudiced. Petitioners appealed. The court reversed. The court held because the original complaint was filed by a nonentity, it was a nullity. Accordingly, the court held, respondent's amended complaint did not relate back to anything, but was a new cause of action filed outside the applicable statute of limitations.

OUTCOME:  Court of Special Appeals judgment reversed and case remanded to it for entry of judgment affirming original summary judgment grant because respondent building contractor's amended complaint filing outside applicable limitations period could not relate back to filing of initial complaint by defunct corporation since defunct corporation's filing was a nullity.

CORE TERMS:  charter, forfeiture, revival, defunct, forfeited, substitution, mechanics', statute of limitations, revived, directors-trustees, inoperative, instituted, void, purportedly, expiration, deceased, renewal, notice, good standing, asserting, null and void, misnomer, claimant, trading, dead, real party in interest, corporate charter, summary judgment, sole owner, divested

CORE CONCEPTS -  

Civil Procedure: Pleading & Practice: Pleadings: Amended Pleadings
Civil Procedure: Parties, Claims & Joinder
Md. Code Ann. § 2-341(c) provides in part: An amendment may seek to (4) correct misnomer of a party, (5) correct misjoinder or nonjoinder of a party so long as one of the original plaintiffs and one of the original defendants remain as parties to the action.

Business & Corporate Entities: Dissolving the Corporation
See Md. Code Ann. 3-503(c).

Business & Corporate Entities: Dissolving the Corporation
Upon forfeiture, and until a court appoints a receiver, the directors of the corporation become the trustees of its assets for purposes of liquidation. Md. Code Ann. § 3-515(a). During that period the directors-trustees may sue or be sued in their own names as trustees or in the name of the corporation. Md. Code Ann. § 3-515(c)(3).

Business & Corporate Entities: Dissolving the Corporation
Filing of articles of revival is the procedure for reinstating a forfeited corporate charter. Md. Code Ann. §§ 3-507 through 3-512. From the time of forfeiture until October 1, 1991, to have articles of revival accepted by the State Department of Assessments and Taxation, it was necessary for a person seeking revival to file all annual reports and to pay all State and local taxes, except taxes on real estate, and all interest and penalties due whether or not barred by limitations. Md. Code Ann. § 3-510 (1975). Effective October 1, 1991, per Chapter 8 of the Acts of that year, it also became necessary for those seeking reinstatement to pay, in addition, unemployment insurance contributions, or reimbursement payments. Md. Code Ann. § 3-509.

Business & Corporate Entities: Formation of a Corporation
The revival of a corporation's charter validates contracts done in the name of the corporation while the charter was void and restores, unless otherwise divested, all assets and rights of the corporation to the same extent that they were held before forfeiture. Md. Code Ann. § 3-512.

Civil Procedure: Parties, Claims & Joinder: Substitution of Parties
See Md. Code Ann. § 2-241(a).

Civil Procedure: Parties, Claims & Joinder: Capacity of Parties
See Md. Code Ann. § 2-201.

Civil Procedure: Parties, Claims & Joinder: Substitution of Parties
Business & Corporate Entities: Dissolving the Corporation
 "Substitution," as used in Md. Code Ann. § 2-201, has the same meaning as in Md. Code Ann. § 2-241. From the standpoint of prosecuting an action, the reference to forfeiture in Md. Code Ann. § 2-241(a)(4) ordinarily involves a situation where an action had been instituted by a corporation in good standing that, during the pendency of the suit, suffered a forfeiture of charter and, without articles of revival having been filed, the directors-trustees prosecute the action in connection with the liquidation of the affairs of the defunct corporation. Md. Code Ann. § 3-515(c). That substitution relates back per Md. Code Ann. § 2-201.

Business & Corporate Entities: Shareholders & Other Constituents: Disregard of Corporate Entity
Corporations and individuals are separate entities. The corporate entity will be disregarded only when necessary to prevent fraud or to enforce a paramount equity.

Business & Corporate Entities: Dissolving the Corporation
See Md. Code Ann. § 3-514.

COUNSEL: ARGUED BY Edward J. Gilliss (Edward U. Lee, III of Royston, Mueller, McLean & Reid, LLP, on brief) of Towson, MD, FOR PETITIONERS.
 
ARGUED BY J. Marks Moore, III (West & Moore, LLC of Baltimore, MD and Andrew M. Winick of Wilson, Elser, Moskowitz, Edelman & Dicker LLP of Baltimore, MD) all on brief, FOR RESPONDENT.

JUDGES: ARGUED BEFORE Bell, C.J.; Eldridge, Rodowsky, Raker, Wilner, Cathell, and Harrell, JJ. Opinion by Rodowsky, J.

OPINIONBY: Rodowsky

OPINION: [*671] [**504]
 
Opinion by Rodowsky, J.

   In this case we hold that the statute of limitations is not tolled by the filing of an action in the name of a corporation whose charter had been forfeited and never revived, [**505] asserting a claim that was not a corporate asset at the time of forfeiture. Consequently, an amendment naming the last and sole owner as plaintiff in lieu of the defunct corporation, after the statute had run, does not relate back to when the action was instituted.

   This action was instituted on May 7, 1997, in the Circuit Court for Anne Arundel County. The complaint named Curtis Contractors, Inc. as the sole plaintiff. The petitioners, [*672] Charles and Ann Stein (the Steins), were named as defendants. The complaint was pled in[***2] two counts. The first count alleged an express written contract between Curtis Contractors, Inc. and the Steins for the construction by Curtis Contractors, Inc. on the Steins' property of a therapy spa and related work. It further alleged amendments to that contract for the purpose of including additional work, and it sought judgment for the unpaid balance of the agreed price. Count II sounded in quantum meruit and sought the reasonable value of the work done and materials provided by Curtis Contractors, Inc. for the Steins.

   The work was completed no later than May 29, 1994. n1 Consequently, the instant action was filed just short of three years after the cause of action accrued. 

n1 This case was decided on summary judgment. The date of completion is found in the record only in an unsworn memorandum of law filed by the Steins which states that the plaintiff (then Robert E. Smith, Jr.) asserts that the work was completed no later than May 29, 1994. The plaintiff has never challenged this statement and the completion date has been treated as a conceded fact in the circuit court, in the Court of Special Appeals, and in this Court.

[***3]

   The Steins, who were not served until February 1998, moved to dismiss, asserting, inter alia, the lack of capacity of Curtis Contractors, Inc. to sue. In an accompanying memorandum, to which a certificate from the State Department of Assessments and Taxation (the Department) was attached as an exhibit, the Steins demonstrated that the charter of Curtis Contractors, Inc. had been forfeited on October 6, 1983, "for failure to file the necessary corporate personal property report or failure to pay any late filing penalties due."

   The response to this defense was the filing on April 20, 1998, of an amended complaint which omitted Curtis Contractors, Inc. as plaintiff and named "Robert E. Smith, Jr. d/b/a [doing business as] Curtis Contractors, Inc." as sole plaintiff. It alleged that the respondent, Robert E. Smith, Jr. (Smith), was the sole owner, operator, proprietor, and principal of Curtis Contractors, Inc., and that, following the corporate charter's forfeiture in 1983, Smith had "continued to do business [*673] as a sole proprietor using the name Curtis Contractors, Inc."

   The Steins moved for summary judgment, contending that the statute of limitations had run against Smith's claim. [***4] Smith's affidavit in opposition affirmed the facts alleged in the amended complaint that are recited above. Smith also made affirmation to the following:

   "I have known Defendants Charles and Ann Stein on a personal basis since 1983. In addition, Charles Stein represented me as an attorney in various matters from 1984 to 1994. Charles Stein was and is intimately familiar with many of my business dealings including my construction business. Charles Stein was at all relevant times fully aware that I was the sole owner, proprietor and principal of Curtis Contractors, Inc."
The circuit court entered summary judgment in favor of the Steins, finding that the claims were barred by the three year statute of limitations provided by Maryland Code (1974, 1995 Repl. Vol.), § 5-101 of the Courts and Judicial Proceedings Article.

   Smith appealed to the Court of Special Appeals where the judgment was reversed [**506] by a divided court in an unreported opinion. That court agreed with the Steins that "Curtis Contractors, Inc." lacked the capacity to recover against them for breach of contract. That did "not resolve, however, whether the relation back doctrine applies to Smith's amended complaint." The court[***5] said, "Although relation back cases generally concern a change in the cause of action or a party defendant, it is only the plaintiff in this case, not the defendant or the claim, that has changed. Nevertheless, we believe the underlying principles remain the same."

   Relying principally on Zappone v. Liberty Life Insurance Co., 349 Md. 45, 706 A.2d 1060 (1998), the Court of Special Appeals said that "prejudice to the opposing party is a hallmark of relation back cases involving the substitution of a defendant due to misnomer." The court reasoned that there was no prejudice to the Steins because the facts out of which [*674] the dispute had arisen had not changed, the legal theories of liability had not changed, and the Steins had a personal and professional relationship with Smith. The court analyzed that there had been a "substitution of Smith's name for that of the Corporation in the First Amended Complaint." This, said the court, "is indistinguishable from any other case in which a plaintiff substitutes one party for another, after realizing that the original complaint named the wrong entity."

   The dissenting judge believed that Maryland Rule 2-341(c)(5) controlled because[***6] the case presented a nonjoinder, as opposed to a misnomer. Rule 2-341(c) in relevant part provides:

   "An amendment may seek to ... (4) correct misnomer of a party, (5) correct misjoinder or nonjoinder of a party so long as one of the original plaintiffs and one of the original defendants remain as parties to the action."
The dissenting judge was "not prepared to ignore the traditional understanding that Curtis Contractors[, Inc.] was a separate legal entity from [Smith] and to reward [Smith] for his blatant disregard of applicable corporate law except when it is to his advantage to do otherwise."

   The Steins petitioned for the writ of certiorari which we granted.  Curtis Contractors, Inc. v. Stein, 356 Md. 494, 740 A.2d 612 (1999). We shall reverse. Because the original complaint was filed by a nonentity and was a nullity, there was nothing to which the amended complaint could relate back.

   The provisions of the Maryland corporation statutes dealing with the forfeiture of charters came into the law, initially by Chapter 244 of the Acts of 1890, "as a tax measure." Cloverfields Improvement Ass'n v. Seabreeze Props., Inc., 280 Md. 382, 387, 373 A.2d 935, 938 (1977).[***7] In 1983, when the charter of Curtis Contractors, Inc. was forfeited, the grounds for forfeiture were stated in Maryland Code (1975), § 3-503 of the Corporations and Associations Article (CA). It provided, except as to a tax collectable locally, that the Comptroller "shall certify to the Governor a list of every Maryland corporation which has not paid a tax due by it before October 1 of the year [*675]after the tax became due." CA § 3-503(a)(1). Further, it provided that the Department "shall certify to the Governor a list of every Maryland corporation which has not filed an annual report with the Department as required by law or has not paid franchise or gross receipt taxes before October 1 of the year after the report was required to be filed or the taxes were due." CA § 3-503(b). Currently, the certification is made by the Comptroller to the Department. Md. Code (1957, 1993 Repl. Vol.), CA § 3-503(a)(1). n2 Since 1983 there has been no change of substance relevant to the instant matter with respect to the duties of the Department. [**507] See CA § 3-503(c). n3

n2 Hereafter, unless otherwise noted, all references to the Corporations and Associations Article will be to the 1993 Replacement Volume.

[***8] 

n3 CA § 3-503 was amended by Chapter 593 of the Acts of 1986 to change the duty of the Comptroller from reporting to the Governor to reporting to the Department and by Chapter 8 of the Acts of 1991 to place a duty to report to the Department on the appropriate cabinet secretary with respect to unemployment insurance contributions or reimbursement payments. See Md. Code (1993, 1999 Cum. Supp.), CA § 3-503(a) and (b).

   In 1983 the effect of forfeiture was set forth in Md. Code (1975), CA § 3-503(c). It read:

   "When he receives the lists, the Governor shall issue a proclamation declaring that the charters of the corporations are repealed, annulled, and forfeited, and the powers conferred by law on the corporations are inoperative, null, and void as of the date of the first publication of the proclamation, without proceedings of any kind either at law or in equity."
(Emphasis added). n4 One of the powers of Curtis Contractors, Inc. that became "inoperative, null, and void" upon forfeiture of its charter was the power to sue. CA § 2-103(2).

n4 Currently the Department issues the proclamation after the lists are certified. CA § 3-503(d).

[***9] 

   Upon forfeiture, and "until a court appoints a receiver, the directors of the corporation become the trustees of its assets for purposes of liquidation." CA § 3-515(a). During that [*676] period the directors-trustees may "sue or be sued in their own names as trustees or in the name of the corporation." CA § 3-515(c)(3). This latter provision is not applicable in the case before us. Any contract or restitutionary rights that arose in favor of Smith, who allegedly conferred a benefit on the Steins, arose long after forfeiture of the Curtis Contractors, Inc. charter and was not an asset of that corporation at the time of forfeiture.

   Filing of articles of revival is the procedure for reinstating a forfeited corporate charter. CA §§ 3-507 through 3-512. From the time of forfeiture until October 1, 1991, in order for Curtis Contractors, Inc. to have articles of revival accepted by the Department, it was necessary for Smith to file all annual reports and to pay "all State and local taxes, except taxes on real estate, and all interest and penalties due ... whether or not barred by limitations." Md. Code (1975), CA § 3-510. Effective October 1, 1991, per Chapter 8 of the Acts of that year, it[***10] also became necessary for those seeking reinstatement to pay, in addition, "unemployment insurance contributions, or reimbursement payments." CA § 3-509. Further, the revival of a corporation's charter validates contracts done in the name of the corporation while the charter was void and restores, unless otherwise divested, all assets and rights of the corporation to the same extent that they were held before forfeiture. CA § 3-512. At no time from October 6, 1993, to the closing of the record for this appeal, however, has Smith revived the charter of Curtis Contractors, Inc.

   There are also two Maryland Rules of Procedure, Rules 2-201 and 2-241, which deal with a problem related to, but distinct from, the problem in the case before us. Rule 2-241(a), "Substitution," provides:

   "The proper person may be substituted for a party who
 
"(1) dies, if the action survives,
 
"(2) becomes incompetent,
 
"(3) transfers an interest in the action, whether voluntarily or involuntarily,
[*677]  
"(4) if a corporation, dissolves, forfeits its charter, merges, or consolidates, or
 
"(5) if a public officer, ceases to hold office."
 
Maryland Rule 2-201, "Real party in interest," in[***11] relevant part reads:

   "No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a [**508] reasonable time has been allowed after objection for joinder or substitution of the real party in interest. The joinder or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest."
"Substitution," as used in Rule 2-201, has the same meaning as in Rule 2-241. From the standpoint of prosecuting an action, the reference to forfeiture in Rule 2-241(a)(4) ordinarily involves a situation where an action had been instituted by a corporation in good standing that, during the pendency of the suit, suffered a forfeiture of charter and, without articles of revival having been filed, the directors-trustees prosecute the action in connection with the liquidation of the affairs of the defunct corporation. See CA § 3-515(c). That substitution relates back per Rule 2-201. Here, however, Smith is not asserting a claim owned by the corporation at forfeiture and is not suing as the only director-trustee. Thus, in order for Smith to avoid the operation of the statute of limitations, relation back[***12] under the amendment rule, Rule 2-341, must apply where the action is instituted by a defunct corporation.

   This Court's analysis of the effect of the institution of an action in the name of a defunct corporation is found in Atlantic Mill & Lumber Realty Co. v. Keefer, 179 Md. 496, 20 A.2d 178 (1941). In that case a corporation whose charter had been forfeited purportedly filed a mechanics' lien and a bill of complaint to enforce the mechanics' lien.  Id. at 497, 20 A.2d at 179. After the expiration of the time within which a mechanics' lien could be filed, the lien filing and the bill of complaint to enforce were amended by naming "Herman M. Meyer, trading as the Atlantic Mill & Lumber Company," as claimant and plaintiff, in lieu of the defunct corporation, [*678] "Atlantic Mill & Lumber Realty Company, Incorporated." Id. The amended bill was dismissed on demurrer, and this Court affirmed. We stated:

   "The original mechanics' lien ... was inoperative, null and void as the petitioner was not in existence and had no power to file the lien. Such petitioner not being in existence and having no authority to enforce rights acquired during the life of its charter[***13] could not file the alleged mechanics' lien, could not file the original bill of complaint for its enforcement, could not file a petition for authority to file an amended bill of complaint. The amended lien was not filed by the directors of the corporation as trustees nor by a receiver or receivers of the corporation, but by 'Herman M. Meyer, trading as Atlantic Mill and Lumber Company.' It therefore appears that the amended bill of complaint of 'Herman M. Meyer, trading as Atlantic Mill and Lumber Company,' was an entirely new action and that the amended mechanics' lien, an entirely new claim filed more than six months after the time fixed by statute[,] was no lien and is, therefore, not enforceable."
 
Id. at 500-01, 20 A.2d at 181 (citation omitted).

   In the instant matter Smith seeks to distinguish Atlantic Mill, asserting that the materials giving rise to the lien claim in that case were provided when the corporation was in good standing. As we read Atlantic Mill, it is silent on that point. Nevertheless, even if the materials were provided prior to forfeiture of the corporation's charter, the distinction would be immaterial. The point is that under[***14] Atlantic Mill there was no relation back, and the filing of the amended complaint to enforce was "an entirely new action." This Court said that the then applicable forfeiture statute did not permit Meyer to take advantage of a lien filed by a "nonentity." Id. at 501, 20 A.2d at 181.

   There are a number of cases dealing with revival, or attempted revival, under the Maryland corporation laws which clearly indicate that the original complaint filed in the name of Curtis Contractors, Inc. in this case had no effect, so that [*679] [**509] there was nothing to which the amended complaint could relate back. In Cloverfields, 280 Md. 382, 373 A.2d 935, the contest was between rival claimants to the power to control the application of restrictive covenants in a residential development. The improvement association claimed under a 1965 assignment from a corporation whose charter had been forfeited in 1964.  Id. at 385, 373 A.2d at 936-37. The other claimant, Seabreeze Properties, Inc., claimed under a 1971 assignment from the last directors of the defunct corporation.  Id. at 386, 373 A.2d at 937. Articles of revival had been filed in 1973, [***15] some nine months after the improvement association had brought the declaratory judgment action that is the subject of the reported case. Id. We held that the articles of revival did not retroactively make effective the assignment in the name of the defunct corporation because, in the interval between that assignment and the revival, the authorized directors-trustees had validly assigned.  Id. at 398, 373 A.2d at 943.

    Of particular relevance to the case before us is the alternative argument of the improvement association in Cloverfields which contended that the assignee from the directors-trustees could not be a bona fide purchaser because that assignee had actual knowledge of the prior rights and equities of the improvement association. We rejected this argument saying that "the 1965 instruments were void because the corporation was dead and its powers terminated." Id. at 399, 373 A.2d at 944. We analogized to the lack of constructive notice given by the recording of a forged deed. Id. Cloverfields also favorably quoted the passage from Atlantic Mill that we have quoted above. Cloverfields, 280 Md. at 393-94, 373 A.2d at 941.[***16]

    American-Stewart Distillery, Inc. v. Stewart Distilling Co., 168 Md. 212, 177 A. 473 (1935), was a contest over the use of the name of a corporation whose charter had been forfeited. We held that the entity that had adopted the name of the forfeited corporation during the period of forfeiture was entitled to continue to use the name after revival of the charter of the earlier user of the name. We pointed out that, under the [*680] corporation statutes, "'the powers granted to such [forfeited] corporations shall be inoperative, null and void.'" Id. at 217, 177 A. at 475.

   The following sequence of events was involved in Kroop & Kurland, P.A. v. Lambros, 118 Md. App. 651, 703 A.2d 1287 (1998). A professional association had rendered services and obtained a judgment for payment of the services while it was in good standing. Id. at 654, 703 A.2d at 1288. In the twelve years following entry of the judgment, see Md. Rule 2-625, the professional association's charter was forfeited, but the judgment was purportedly renewed in the corporate name. n5 Id. at 655, 703 A.2d at 1288. Subsequently, the judgment was sold[***17] to the plaintiff. The plaintiff filed a claim against the estate of the deceased judgment debtor which was disallowed by the personal representative. Id. Thereafter the plaintiff revived the professional association charter, and the claim was allowed by the orphans' court.  Id., 703 A.2d at 1289. The circuit court, however, held that the renewal of the judgment was null and void because the corporation did not exist, and the ineffectiveness of the renewal of the judgment had not been cured by the later revival of the corporate charter. Id. at 656, 703 A.2d at 1289. The Court of Special Appeals affirmed. That court held that "during the period in which [the professional association] was defunct, it was divested of its right as a judgment creditor ... by expiration of the judgment" and that the judgment was not restored upon revival of the charter. Id. at 667, 703 A.2d at 1294. 

n5 Renewal of a money judgment is effected by filing a notice of renewal with the Clerk of the Court. Md. Rule 2-625. Service of the notice of renewal must be made on the judgment debtor in accordance with Rule 1-321.

[***18]

    [**510] Psychic Research & Development Institute of Maryland, Inc. v. Gutbrodt, 46 Md. App. 21, 415 A.2d 611 (1980), was relied upon by the United States District Court for the District of Maryland in a case involving a limitations defense.  United States v. Firemen's Ins. Co., 869 F. Supp. 347, 348 (D. Md. 1994). In Psychic Research a testamentary bequest to [*681] a corporation required that it be in existence at the time of the testatrix's death.  46 Md. App. at 23-24, 415 A.2d at 613. At that time the legatee's charter had been forfeited, and the gift was distributed to the alternate legatee named in the will. The Court of Special Appeals held that the subsequent filing of articles of revival could not thwart the gift over.  Id. at 28, 415 A.2d at 615. In Psychic Research the Court of Special Appeals said:

   "The Articles of Revival can spontaneously generate life in a dead corporation, but they cannot restore to it rights that passed to others during the period of the corporate abiosis. The subsequent revival of Psychic did not again vest property and rights in the corporation which were divested during the period of forfeiture.[***19] "
 
Id.

   Firemen's Insurance Co. was brought under the Miller Act. The complaint against the bonding company was filed in the name of a corporation which was then defunct, but the filing was made within the period of limitations.  869 F. Supp. at 348. When the lack of capacity to sue of the corporate plaintiff was raised by the bonding company, articles of revival were filed, but they were not filed until after the expiration of the period for filing claims against Miller Act bonds. Id. United States District Judge Messitte saw no difference "between inheritance rights that vest in an alternate beneficiary when a corporate beneficiary's charter is forfeit and the right of a defendant to claim the benefit of a limitations defense that accrues while a corporation's charter is in similar status." Id. at 349.

   In the instant matter Smith has not attempted to revive the charter of Curtis Contractors, Inc. Inasmuch as filing of articles of revival are ineffective to achieve relation back to the date of filing of an action by a defunct corporation, a fortiori, simply amending a complaint filed by a defunct corporation which has not been revived[***20] by replacing the named corporate plaintiff with the last owner of the defunct corporation does not effect relation back. Indeed, to permit [*682] relation back under the circumstances here as an application of the amendment rule, Rule 2-341, when it is not permitted under the substitution rule, Rule 2-241, would be contrary to the well settled policy that corporations and individuals are separate entities. "The corporate entity will be disregarded only when necessary to prevent fraud or to enforce a paramount equity." Bart Arconti & Sons, Inc. v. Ames-Ennis, Inc. , 275 Md. 295, 312, 340 A.2d 225, 235 (1975). See also Ferguson Trenching Co. v. Kiehne, 329 Md. 169, 175, 618 A.2d 735, 738 (1993); Starfish Condominium Ass'n v. Yorkridge Serv. Corp., 295 Md. 693, 714, 458 A.2d 805, 816 (1983); Residential Warranty Corp. v. Bancroft Homes Greenspring Valley, Inc., 126 Md. App. 294, 306-07, 728 A.2d 783, 789, cert. denied, 355 Md. 613, 735 A.2d 1107 (1999).

   There is also a strong analogy between the problem in the case before us and the purported filing of an action against a person who is deceased at that time. [***21] In Burket v. Aldridge, 241 Md. 423, 430, 216 A.2d 910, 913 (1966), we said that "the action filed by Burket against Smith, a few days before the expiration of the three year period from the date of the injuries, had no legal effect. Smith was dead, and an action brought against a dead man is a nullity." See also Hunt v. Tague, 205 Md. 369, 378-79, 109 A.2d 80, 85 (1954) (same); Cromwell v. Ripley, 11 Md. App. 173, 174, 273 A.2d 218, 219 (1971) (same); Moul v. Pace, 261 F. Supp. 616, 618 (D. Md. 1966) [**511] (same). n6 We perceive no reason why an action purportedly brought by a defunct corporation has any more efficacy than an action brought against a deceased individual defendant, absent an express rule or statute, such as that permitting substitution of the last directors-trustees when enforcing an asset held by the corporation at forfeiture.

n6 The rule that an action filed against a deceased individual does not stop the running of the statute of limitations has been modified where the decedent was covered by liability insurance for the occurrence. See Md. Code (1974, 1991 Repl. Vol.), § 8-104(e) of the Estates and Trusts Article. See also Greentree v. Fertitta, 338 Md. 621, 659 A.2d 1325 (1995).

[*683] [***22]

    Zappone, 349 Md. 45, 706 A.2d 1060, on which the Court of Special Appeals relied, illustrates the liberality of this Court's application of the relation back principle in cases of amendment, but the holding of that case cannot apply here. Zappone involved a multi-count complaint brought by Ricardo D. Zappone (Zappone) who was the sole shareholder of a corporation, Print-A-Copy, Inc., which was at all relevant times in good standing. Id. at 52, 706 A.2d at 1064. Zappone sued a number of defendants who had rendered financial services to him alleging, principally, fraud and negligent misrepresentation of the costs to be paid and benefits to be realized on a retirement annuity.  Id. at 56, 706 A.2d at 1065-66. Part of the alleged representations was that Print-A-Copy, Inc. could deduct from its income tax the interest on a bank loan that the corporation in turn had loaned to Zappone for a lump sum annuity premium. Id. After the statute of limitations had run, Zappone amended the complaint to add Print-A-Copy, Inc. as a party plaintiff. The amended complaint claimed in Counts V and VI for the loss sustained due to the nondeductibility[***23] of the interest payments to the lender bank. The trial court refused to apply the doctrine of relation back to Counts V and VI, a ruling that this Court reversed. Id. at 68, 706 A.2d at 1072.

   We said that this Court "had liberally applied the relation back doctrine in other contexts, always emphasizing whether a proposed amendment, if allowed, would substantially prejudice a defendant by submitting that defendant to unfair surprise, hardship, or an undue burden in defending the plaintiff's amended allegations." Id. at 69-70, 706 A.2d at 1072. We pointed out that, from the beginning of the Zappone lawsuit, the defendants had been on notice of a claim based on the nondeductibility of interest.  Id. at 70, 706 A.2d at 1072. We said that amended Counts V and VI "simply refined and clarified the allegations of the initial complaint by more precisely stating the proper plaintiff who was injured by the defendants' allegedly fraudulent and/or negligent conduct." Id. [*684]

   We do not retreat from the policy enunciated in Zappone of liberally applying the relation back doctrine. In the instant case, however, Smith cannot prevail without[***24] an expansion of the doctrine, but it is an expansion that we cannot make. We do not deal with substitution under Rule 2-241, and, consequently, Rule 2-201 does not apply. Any effort to apply relation back by amendment to the original complaint filed by the defunct corporation encounters CA § 3-503 which declares that forfeiture of the corporate charter renders the corporate powers "inoperative, null, and void." The statutory method for restoration of those powers is filing articles of revival, which Smith has not done. Instead, Smith has done business under the name Curtis Contractors, Inc. for more than twelve years prior to filing the instant action in that name--a seemingly clear violation of CA § 3-514 which reads:

   "(a) Prohibition. -- Any person who transacts business in the name or for the account of a corporation knowing that its charter has been forfeited and has not been revived is guilty of a misdemeanor and on conviction is subject to a fine of not more than $500.

   [**512] "(b) Presumption. -- For the purpose of this section, unless there is clear evidence to the contrary, a person who was an officer or director of a corporation at the time its charter was forfeited[***25] is presumed to know of the forfeiture.

   "(c) Limitation. -- A prosecution for violation of the provisions of this section may not be instituted after the date articles of revival of the corporation are filed."
If we were to hold that Smith escapes the statute of limitations by doing business and filing suit in the name of a defunct corporation, simply by purportedly amending to bring the action in his individual name after the corporate status had been challenged and limitations had otherwise run, we would expand the liberality of relation back to the point where it clashes with the legislative policy requiring back taxes to be [*685] paid before powers can be reconferred on a defunct corporation. n7

n7 At oral argument in this Court Smith suggested that it was material that Charles Stein and Smith may have had a close personal and professional relationship that may have resulted in the Steins having had notice of the legal status of Curtis Contractors, Inc. Whether the Steins should be estopped from pleading limitations or raising the defense of lack of capacity of Curtis Contractors, Inc. to sue, however, is not before us. Estoppel was not raised in the Circuit Court for Anne Arundel County or in Smith's brief filed in the Court of Special Appeals. It is not an issue that was raised by Smith in a cross-petition for certiorari.

[***26]

   JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED. CASE REMANDED TO THAT COURT FOR THE ENTRY OF A JUDGMENT AFFIRMING THE JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY. COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID BY THE RESPONDENT, ROBERT E. SMITH, JR. 

Allen v. Correctional Medical 
Pet. Docket No. 687, September Term, 1999
 
COURT OF APPEALS OF MARYLAND
 
358 Md. 609; 751 A.2d 470; 2000 Md. LEXIS 266

 May  11, 2000, Decided

NOTICE: 

  [*1]  DECISION WITHOUT PUBLISHED OPINION 

PRIOR HISTORY:  (No. C-1999-54296, Circuit Court for  Anne Arundel  County.)

OPINION: Petition for Writ of Certiorari denied. 

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. CARY DAVIDDECHOWITZ 
No. 18, September Term, 1999
 
COURT OF APPEALS OF MARYLAND
 
358 Md. 184; 747 A.2d 657; 2000 Md. LEXIS 102

 March  10, 2000, Filed

   PRIOR HISTORY:  [***1] Circuit Court for  Anne Arundel  County. Case # -1999-54839 OC. Philip T. Caroom, JUDGE.

DISPOSITION: IT IS SO ORDERED; RESPONDENT SHALL PAY ALL COSTS AS TAXED BY THE CLERK OF THIS COURT, INCLUDING COSTS OF ALL TRANSCRIPTS, PURSUANT TO MARYLAND RULE 16-715(c), FOR WHICH SUM JUDGMENT IS ENTERED IN FAVOR OF THE ATTORNEY GRIEVANCE COMMISSION AGAINST GARY DAVID DECHOWITZ. 
CASE SUMMARY 

PROCEDURAL POSTURE:  Review of the Circuit Court for Anne Arundel County's (Maryland) findings of fact and conclusions of law concerning petitioner attorney grievance commission's petition for disciplinary action against respondent as a result of his conviction of one count of possession with intent to distribute marijuana.

OVERVIEW:  Petitioner attorney grievance commission filed a petition for disciplinary action against respondent as a result of his conviction of one count of possession with intent to distribute marijuana. The court referred the matter to the trial court to make findings of fact and conclusions of law. There was clear and convincing evidence that respondent possessed marijuana with the intent to distribute in violation of federal law. The court found by clear and convincing evidence that respondent committed a criminal act that reflected adversely on his honesty, trustworthiness or fitness as a lawyer, engaged in conduct involving dishonesty, fraud, deceit or misrepresentation, and engaged in conduct that was prejudicial to the administration of justice. Respondent's conduct involved a continuing course of clandestine criminal conduct whereby respondent profited from the possession, sale, and distribution of illegal substances over a period of time. Respondent was disbarred from the practice of law in Maryland.

OUTCOME:  Petition granted; respondent committed a criminal act that reflected adversely on his honesty, trustworthiness or fitness as a lawyer, engaged in conduct involving dishonesty, fraud, deceit or misrepresentation, and engaged in conduct that was prejudicial to the administration of justice, and respondent was disbarred from the practice of law.

CORE TERMS:  marijuana, suspension, practice of law, conclusions of law, appropriate sanction, narcotics, ounces, extenuating circumstances, recommendation, clear and convincing evidence, reinstatement, distribute, reciprocal, discipline, supervised, sentence, actual suspension, criminal conduct, rehabilitation, disbarment, convicted, disbarred, severity, Maryland Rules of Professional Conduct, Rules of Professional Conduct, Fact And Conclusions Of Law, criminal case, Maryland Rule, grams of cocaine, sanction imposed

CORE CONCEPTS -  

Legal Ethics: Sanctions: Disciplinary Proceedings
Md. R. Cts. Judges, and Attorneys 16-709, as relevant, provides: a. Who may file. Charges against an attorney shall be filed by the Bar Counsel acting at the direction of the Review Board.

Legal Ethics: Client Relations: Moral Accountability
Md. Rules of Professional Conduct 8.4 provides: Misconduct. It is professional misconduct for a lawyer to: (b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects; (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; (d) engage in conduct that is prejudicial to the administration of justice.

Legal Ethics: Sanctions: Disciplinary Proceedings: Hearings
Md. R. Cts. Judges, and Attorneys 16-711(a) provides: A written statement of the findings of facts and conclusions of law shall be filed in the record of the proceedings and copies sent to all parties.

Legal Ethics: Client Relations: Moral Accountability
The acts constituting the offense of possession of marijuana with the intent to distribute in violation of federal law also violates the Maryland Rules of Professional Conduct.

Legal Ethics: Sanctions: Determinations
The appropriate severity of a sanction depends upon the facts and circumstances of each particular case. In addition to the facts underlying the misconduct, the attorney's prior grievance history, as well as any mitigating factors, are part of the equation.

Legal Ethics: Sanctions: Determinations
When the court considers the appropriate sanction in a case of reciprocal discipline, it looks not only to the sanction imposed by the other jurisdiction but to its own cases as well. The sanction will depend on the unique facts and circumstances of each case, but with a view toward consistent dispositions for similar misconduct.

Legal Ethics: Sanctions: Disbarment
Conduct involving actual distribution of narcotics generally results in disbarment.

COUNSEL: ARGUED BY: Dolores O. Ridgell, Assistant Bar Counsel (Melvin Hirshman, Bar Consel) for the Attorney Grievance Commission of Maryland, FOR PETITIONER. 
 
ARGUED BY: No argument on behalf of Respondent, FOR RESPONDENT.

JUDGES: ARGUED BEFORE: Bell, C. J., Eldridge, Rodowsky, Raker, Wilner, Cathell, and Harrell, JJ. Eldridge, J. Dissents.

OPINION: [**658] [*186]
 
Per Curiam

   The Attorney Grievance Commission of Maryland (the "Commission" or Petitioner), through Bar Counsel and pursuant to Maryland Rule 16-709, n1 filed a Petition for Disciplinary Action against Cary David Dechowitz (Respondent) as a result of his conviction in the United States District Court for the Northern District of California of one count of possession with intent to distribute marijuana. The Commission asserted here that Respondent's conviction, and the underlying conduct, placed him in violation of the Maryland Rules of Professional Conduct (RPC). See Maryland Rule 16-812. More specifically, Respondent was charged with violating RPC 8.4 (b),(c), and (d). n2

n1 Rule 16-709, as relevant, provides:

   a. Who may file. Charges against an attorney shall be filed by the Bar Counsel acting at the direction of the Review Board.

[***2] 

n2 RPC 8.4. Misconduct.

   It is professional misconduct for a lawyer to:

    * * * * *

   (b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects;

   (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;

   (d) engage in conduct that is prejudicial to the administration of justice. . .

[*187]

   We referred the matter to the Honorable Philip T. Caroom of the Circuit Court for Anne Arundel County to make findings of fact and conclusions of law pursuant to Maryland Rule 16-711(a). n3 On 18 August 1999, the Commission and Respondent filed, with Judge Caroom, a Joint Motion For Adoption Of Proposed Findings Of Fact And Conclusions Of Law, asking him to adopt the referenced findings of fact and conclusions of law and to forward same to this Court for its consideration. Judge Caroom adopted the parties' submission and, on 23 August 1999, filed the stipulated written Findings Of Fact And Conclusions Of Law, which provided as follows:

n3 Rule 16-711(a) provides: "A written statement of the findings of facts and conclusions of law shall be filed in the record of the proceedings and copies sent to all parties."

[***3]

   I. FINDINGS OF FACT
 
A. The Petitioner submitted the following documentary exhibits:

   1. Judgment in Criminal Case 3:97CR00111-001, United States District Court for the Northern District of California and Information; 2. Transcript of Proceedings held June 6, 1997; 3. Letter dated March 4, 1997 containing the terms of the Respondent's plea agreement and the Statement of Facts constituting the government's case against Respondent; 4. Docket entries; 5. Pretrial minutes.

   The Respondent was admitted to the Maryland Bar on December 29, 1976. He is also a member of the Bar of the District of Columbia and the State of California. During times relevant to this matter, the Respondent resided in San Francisco and practiced only in the State of California. [*188]

   On or about February 6, 1997, the Respondent was arrested while attempting to mail a parcel to an individual in Frederick, Maryland. The parcel contained approximately 8 ounces of marijuana. A search of his residence following his arrest resulted in the seizure of approximately 12 ounces of marijuana. Also seized were handwritten drug purchase and sales records that showed sales of [**659]marijuana and cocaine made by the Respondent between[***4] September 20, 1996 and February 4, 1997, with a total of 150 ounces of marijuana and 62.3 grams of cocaine. These records also showed that at least 74 ounces of marijuana and 15 grams of cocaine were sold to individuals in Maryland during that period.

   On or about June 6, 1997, the Respondent entered a plea of guilty in the United States District Court for the Northen District of California to one count of violating Title 21 U.S. Code Section 841, possession with intent to distribute marijuana. The Respondent was sentenced to a period of 12 months incarceration, to be served in a half-way house. The sentence commenced on or about January 19, 1998. The Respondent's incarceration was to be followed by a period of 3 years supervised probation. No appeal was taken.
 
B. The Respondent has provided as part of his Response to Writ of Summons information in mitigation of the sanction to be imposed by the Court of Appeals. Based on this information this Court finds clear and convincing evidence of the following:
 
   The Respondent has completed his sentence and is currently serving the 3 year period of supervised release. The Respondent has also abstained from the use of alcoholic beverages[***5] and has not used or possessed any narcotics, dangerous or restricted drugs, control substances, marijuana or associated paraphernalia, except for valid prescription. He has attended at least three meetings per month of Alcoholics Anonymous or drug education and treatment classes through Cornell Corrections, Inc. [*189]

   He has maintained a current address and telephone number with the Probation Unit of the Office of the Chief Trial Counsel. He has provided the results of four to six drug screenings per month which have never indicated positive findings for any and all controlled substances or for alcohol.

   Following his arrest and guilty plea, the Respondent's right to practice law in California was suspended by Order of the Review Department of the State Bar of California, effective August 20, 1997, pending further disposition. The United States District Court for the Northern District of California ordered his suspension on November 12, 1997, pending further order of that Court.

   On November 24, 1998, an Order in the Matter of In Re Cary David Dechowitz on Discipline, 1998 Cal. LEXIS 7995, was filed in the Supreme Court of the State of California. This Order placed the Respondent on actual suspension from the [***6]practice of law in the State of California for 18 months and until he had shown proof of rehabilitation, fitness to practice, and learning and ability in the general law, with 5 years probation with conditions, and with the requirement that he pass the Multistate Professional Responsibility examination. The Respondent was given credit toward the period of actual suspension for the period of his interim suspension which commenced on August 20, 1997.

   Since the commencement of the Respondent's suspension from the practice of law in the State of California, he has abided by all the terms and conditions of probation as recommended by the Hearing Department of the State Bar of California. He has complied with the provisions of the State Bar Act and the Rules of Professional Conduct of the State of California. He has submitted quarterly reports to the Probation Unit of the Office of the Chief Trial Counsel. He has attended the State Bar Ethics School and passed the test given at the end of that session. He has registered to take the Multistate Professional [*190] [**660] Responsibility examination to be given on August 13, 1999.

   On June 17, 1999, an Order of Suspension was filed in the United States District[***7] Court for the Northern District of California suspending the Respondent from the practice of law from the United States District Court for Northern District of California for the duration of his actual suspension from the practice of law in the State of California. He has been granted leave to petition that Court for reinstatement upon the showing that he has been reinstated to the State Bar of California and that he has completed all requirements of his probation as set out by the State Bar of California.

   On March 18, 1998, the Court of Appeals of Maryland issued an Order suspending the Respondent from the practice of law in this State until further Order.

    II. CONCLUSIONS OF LAW

   The judgment entered by the United States District Court for the Northern District of California on October 10, 1997 is conclusive evidence of the Respondent's conviction of violating 21 U.S.C. § 841, pursuant to Rule 16-710e. This Court therefore finds that there is clear and convincing evidence that the Respondent possessed marijuana with the intent to distribute in violation of Federal law. The Court of Appeals has previously held that the acts constituting this offense also[***8] violate the Maryland Rules of Professional Conduct as alleged in the Petition for Disciplinary Action, and this Court finds by clear and convincing evidence that the Respondent committed a criminal act that reflects adversely on his honesty, trustworthiness or fitness as a lawyer in other respects, in violation of Rule 8.4(b), engaged in conduct involving dishonesty, fraud, deceit or misrepresentation, in violation of 8.4(c), and engaged in conduct that is prejudicial to the administration of justice in violation of 8.4(d). See, Attorney Grievance Commission v. Hamby, 322 Md. 606, 589 A.2d 53 (1990), Attorney Grievance Commission v. Proctor, 309 Md. 412, 524 A.2d 773 (1987), [*191] and Attorney Grievance Commission of Maryland v. McGonigle, 295 Md. 264, 454 A.2d 365 (1983).

   Not surprisingly, no exceptions were taken from Judge Caroom's findings of fact and conclusions of law. Petitioner has filed with us a Recommendation for Sanctions in which it recommends that Respondent be disbarred. In support of that recommendation, Petitioner points out that, unlike a case of mere possession of illegal substances where the sanction of suspension sometimes [***9]has been deemed appropriate by this Court, n4 Respondent's conduct involved a continuing course of clandestine criminal conduct whereby Respondent profited from the possession, sale, and distribution of illegal substances over a period of time. In effect, Respondent was a drug dealer. Thus, Petitioner asserts the present case is more akin to McGonigle where the Court held that disbarment was the appropriate sanction, absent compelling extenuating circumstances, when an attorney is convicted of the sale/distribution of narcotics. 295 Md. at 266, 454 A.2d at 367. Respondent has presented no such extenuating circumstances, Petitioner contends.

n4 See Attorney Grievance Comm'n of Maryland v. Gilbert, 356 Md. 249, 739 A.2d 1 (1999); Hamby; and Proctor (Court imposed a sanction of suspension where attorneys were convicted of possessing illegal substances).

   In his written response to the Petition for Disciplinary Action before Judge Caroom, Respondent asked that the same attorney[***10] disciplinary sanction be imposed in Maryland as was adopted by the State of California and the U.S. District Court for the Northern District of California: a period of suspension with the right to apply for reinstatement after certain conditions are met. The California suspension [**661] is to be followed by a period of probation during which Respondent would be monitored and subjected to drug testing by the Office of Chief Trial Counsel. n5

 n5 Respondent alleged that he had complied successfully with the terms and conditions of his suspension for the twenty-two months preceding the filing on 1 July 1999 of his response to the Petition in the present case. He also asserted that, as to the sentence in the criminal case, he had completed the term of commitment in a halfway house on 15 January 1999 and was serving the three year, supervised probationary period. Essentially, Respondent contended he was well along the course to rehabilitation and anticipated termination of his California license suspension shortly. He submitted, however, no extrinsic evidence supporting that optimistic assessment.

[*192] [***11]

   As Respondent admitted his conduct before Judge Caroom, and that that conduct violated RPC 8.4(b), (c), and (d), the only matter for us to decide is the appropriate sanction. In doing so, we keep in mind that the purpose of sanctions is to protect the public, to deter other lawyers from engaging in violations of the Rules of Professional Conduct, and to maintain the integrity of the legal profession. The appropriate severity of a sanction depends upon the facts and circumstances of each particular case. In addition to the facts underlying the misconduct, the attorney's prior grievance history, as well as any mitigating factors, are part of the equation.
 
Attorney Grievance Comm'n v. Atkinson, 357 Md. 646, 656-57, 745 A.2d 1086, 2000 Md. LEXIS 46, *15, (2000) (citations omitted).

   We are not bound to follow California's decision as to the appropriate sanction in this matter. We have explained that this Court has often imposed sanctions, in reciprocal discipline cases, of facially equal severity to those imposed by a sister state. Nevertheless, there is no requirement that this should be done; we need not impose the same sanction[***12] as that imposed by the other jurisdiction. In fact, this Court is duty-bound to assess for itself the propriety of the sanction imposed by the other jurisdiction and that recommended by the Commission. Indeed, we have stated the rule in reciprocal discipline cases to be:

   When the Court considers the appropriate sanction in a case of reciprocal discipline, we look not only to the sanction imposed by the other jurisdiction but to our own cases as well. The sanction will depend on the unique [*193] facts and circumstances of each case, but with a view toward consistent dispositions for similar misconduct.
 
Attorney Grievance Comm'n v. Sabghir, 350 Md. 67, 83, 710 A.2d 926, 934 (1998)(citations omitted).

   We continue to agree with Petitioner's distinction, for sanctioning purposes, between conduct involving possession of narcotics and that involving actual distribution of narcotics. See Proctor, 309 Md. at 420, 524 A.2d at 776-77. In Maryland, the latter conduct generally results in disbarment. See McGonigle, supra. Agreeing with Petitioner as we do, and Respondent not having persuaded us with his mitigation evidence nor having demonstrated[***13] any extenuating circumstances regarding his criminal conduct (which is his burden), we shall adopt Petitioner's recommendation and respectfully decline to follow California's decision in the instant case. We order Respondent be disbarred from the practice of law in Maryland..

   IT IS SO ORDERED; RESPONDENT SHALL PAY ALL COSTS AS TAXED BY THE CLERK OF THIS COURT, INCLUDING COSTS OF ALL TRANSCRIPTS, PURSUANT TO MARYLAND RULE 16-715(c), FOR WHICH SUM JUDGMENT IS ENTERED IN FAVOR OF THE ATTORNEY GRIEVANCE COMMISSION AGAINST GARY DAVID DECHOWITZ.

DISSENTBY: Eldridge

DISSENT:  
[**662] Eldridge, J., dissenting:

   The respondent is a resident of California. According to Judge Caroom's findings, the respondent "practiced only in the State of California." Both the State of California and the United States District Court for the Northern District of California imposed a suspension on the respondent. In light of these circumstances, as well as the underlying facts, I would impose an indefinite suspension with the right to apply for reinstatement to the Maryland bar after the respondent is fully reinstated in California. 

MVA v. Amaya 
Pet. Docket No. 612, September Term, 1999
 
COURT OF APPEALS OF MARYLAND
 
358 Md. 164; 2000 Md. LEXIS 145

 March  9, 2000, Decided

NOTICE: 

  [*1]  DECISION WITHOUT PUBLISHED OPINION 

PRIOR HISTORY:  (No. C-99-55547, Circuit Court for  Anne Arundel  County).

OPINION: Petition for Writ of Certiorari denied. 

CHESAPEAKE CHARTER, INC., et al. v. ANNE ARUNDEL COUNTYBOARD OF EDUCATION 
No. 86, Sept. Term, 1999
 
COURT OF APPEALS OF MARYLAND
 
358 Md. 129; 747 A.2d 625; 2000 Md. LEXIS 100

 March  7, 2000, Filed

   PRIOR HISTORY:  [***1] Appeal from the Circuit Court for  Anne Arundel  County pursuant to certiorari to the Court of Special Appeals. Case No. C98-46420 AA. Pamela L. North, JUDGE.

DISPOSITION: JUDGMENT AFFIRMED; APPELLANT TO PAY THE COSTS. 
CASE SUMMARY 

PROCEDURAL POSTURE:  Appellant school bus contractors challenged judgment of Circuit Court for Anne Arundel County (Maryland), which affirmed decision of state contract appeals board that it was not the proper forum for resolving appellants' procurement disputes with appellee county school board.

OVERVIEW:  The trial court concluded that the state contract appeals board was not the appropriate forum for appellant school bus contractors' procurement disputes with appellee county school board. After reviewing the legislative history of the General Procurement Law, Md. Code Ann., State Fin. & Proc. § 11-17, and the function and statutory scheme regarding county school boards, the appellate court concluded that there was an ambiguity as to whether appellee was a unit for purposes of Md. Code Ann., State Fin. & Proc. § 11-101(x). The legislative history revealed no basis to conclude that the legislature ever intended to subject procurement by a county school board to the General Procurement Law. Thus, a county school board was not a unit within the meaning of Md. Code Ann., State Fin. & Proc. § 11-101(x), and the state contract appeals board had no jurisdiction over disputes arising from procurement decision made by appellee.

OUTCOME:  Judgment affirmed because appellee was not a unit for purposes of the General Procurement Law and state contract appeals board had no jurisdiction over disputes arising from appellee's procurement decision.

CORE TERMS:  procurement, General Procurement Law, school board, bid, school construction, contractor, county superintendent, school bus, expenditure, educational, protest, appropriation, transportation, vested, bus, regulations, county board, budget, recommendation, purchasing, route, boards of education, county department, public schools, textbook, opening, operating expenses, appointed, annual, public school system

CORE CONCEPTS -  

Public Contracts Law: Contract Provisions
Md. Code Ann., State Fin. & Proc. § 11-202 provides that, unless otherwise expressly provided by law, the General Procurement Law, Md. Code Ann., State Fin. & Proc. § 11-17, applies to "each expenditure by a unit under a procurement contract."

Public Contracts Law: Dispute Resolution: Contract Disputes Act
The Maryland State Board of Contract Appeals is created by Md. Code Ann., State Fin. & Proc. § 15-205 and is vested with jurisdiction to hear and decide, subject to judicial review, all appeals from the final action of "a unit" on a protest relating to the formation of a procurement contract or, except for a contract claim relating to a lease of real property, on a contract claim concerning breach, performance, modification, or termination. Md. Code Ann., State Fin. & Proc. § 15-211.

Public Contracts Law: Dispute Resolution: Contract Disputes Act
See Md. Code Ann., State Fin. & Proc. § 11-101(x).

Governments: Legislation: Construction & Interpretation
In construing a statute, the court's objective is to ascertain and give effect to the intent of the legislature. If the language of the statute is clear and unambiguous and expresses a meaning consistent with the statute's goals and apparent purpose, the court's inquiry normally ends with that language.

Governments: Legislation: Construction & Interpretation
If statutory language is susceptible to more than one meaning and is therefore ambiguous, the court considers not only the literal or usual meaning of the words, but their meaning and effect in light of the setting, the objectives and purpose of the enactment, and, in those circumstances, in seeking to ascertain legislative intent, the court considers he consequences resulting from one meaning rather than another, and adopt that construction which avoids an illogical or unreasonable result, or one which is inconsistent with common sense.

Governments: Local Governments: Education
Governments: State & Territorial Governments: Education
County school boards are creatures of the General Assembly. Md. Code Ann., Educ. § 3-103 creates such a board for each county, with limited authority to control educational matters that affect the county. Md. Code Ann., Educ. § 4-101. The county school systems are funded in part by the state and in part by the counties. Although in terms of their composition, jurisdiction, funding, and focus, they clearly have a local flavor, the county school boards have consistently been regarded as state, rather than county, agencies.

Governments: Local Governments: Education
Governments: State & Territorial Governments: Education
Although the county boards of education are generally regarded as state agencies because they are part of the state public education system, are subject to extensive supervision and control by the State Board of Education, and exercise a state function, from a budgetary and structural perspective, they are local in character. They are not divisions of or units within the State Department of Education. They are subject to the county, not the state, budget process and must justify their budget requests to the county government. Most of their operational funding comes from the county, not the state, government. When these factors are taken into account, it is clear that the general characterization of county boards of education as state agencies does not require a finding that they are entities "in the Executive Branch of the State government" for purposes of Md. Code Ann., State Fin. & Proc. § 11-101(x).

Public Contracts Law: Dispute Resolution: Contract Disputes Act
Governments: Local Governments: Education
Governments: State & Territorial Governments: Education
A county school board is not a "unit" within the meaning of Md. Code Ann., State Fin. & Proc. § 11-101(x), and, accordingly, that the Maryland State Board of Contract Appeals has no jurisdiction over disputes arising from procurement decisions made by those boards.

COUNSEL: ARGUED BY Joseph G. Billings (Law Offices of Joseph G. Billings P.C., on brief) of Landover, MD, FOR APPELLANTS.
 
ARGUED BY William A. Kahn, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General of Maryland and Valerie Cloutier, Assistant Attorney General, on brief) all of Baltimore, Maryland, FOR APPELLEE.
 
ARGUED BY: B. Darren Burns, Staff Attorney (Anne Arundel County Board of Education, on brief) of Annapolis, MD, FOR APPELLEES.

JUDGES: ARGUED BEFORE Bell, C.J.; Eldridge, Rodowsky, Raker, Wilner, Cathell, and Harrell, JJ. Opinion by Wilner, J.

OPINIONBY: WILNER

OPINION: [**626] [*131]
 
Opinion by Wilner, J.

   Before us is a procurement dispute between three school bus contractors, appellants here, and the Anne Arundel County Board of Education, appellee. The precise issue is whether the Maryland State Board of Contract Appeals (MSBCA), created to resolve disputes arising under the State General Procurement Law, has jurisdiction over that dispute. The larger question, which the parties agree governs that issue, is whether the procurement of services by a county board of education is subject to the General Procurement Law. We shall answer that question in the negative and thus affirm the judgment of the Circuit Court for Anne Arundel County which, in turn, affirmed MSBCA's dismissal of the procurement protest by the bus contractors.[*132]

   PROCEDURAL BACKGROUND

   For many years, appellee obtained much of its student transportation services through contracts negotiated and entered into with individual bus contractors, each contract covering one[***2] or more routes. In 1997, the board decided to use a different approach, involving sealed competitive bids for longer-term, multi-route contracts. On November 3, 1997, it formally solicited bids for four groups of bus routes, each group containing five routes. Two pre-bid conferences were held, and, as a result of questions and concerns raised by prospective bidders, five amendments and clarifications were issued and an initially scheduled bid opening was postponed.

   On February 2, 1998 -- one day before the rescheduled bid opening -- 18 prospective [**627] bidders, still dissatisfied, sent a protest letter to the board's purchasing officer complaining (1) about certain substantive specifications, including a minimum wage requirement for bus operators and aides, and (2) that the board's bidding procedures did not comply with the requirements of the General Procurement Law. Joined by some other bus contractors, they also filed suit in the Circuit Court for Anne Arundel County to restrain the board from opening the bids. That suit was voluntarily dismissed, without prejudice, after the court denied their request for a preliminary injunction. The board opened the bids as scheduled, and, on February [***3] 18, it formally awarded contracts for three of the four route groups. The bids for one route group were rejected because they were too high.

   Treating the opening of the bids as an implicit denial of their protest, and without waiting for either an award of the contracts or a formal denial of their protest, appellants, on February 12, filed a Notice of Appeal with MSBCA. On February 27, the purchasing officer formally rejected each aspect of the protest, including the contention that the board was subject to the General Procurement Law. She advised that county school boards were authorized to enter into procurement contracts pursuant to their own procedures, subject to administrative review by the State Board of Education, and [*133] that they were not under the General Procurement Law or subject to the jurisdiction of MSBCA. Unpersuaded, appellants pressed their appeal to MSBCA.

   Appellee, joined by the State Board of Education, which intervened as an interested party, moved to dismiss the appeal on the ground that, as appellee was not subject to the General Procurement Law, MSBCA had no jurisdiction to consider the protest and that any administrative review of appellee's decision must come[***4] from the State Board of Education. On April 10, 1998, MSBCA filed a memorandum opinion in which it adopted that view and dismissed the appeal. MSBCA concluded that, although county boards of education may be State agencies for some purposes, they are not units in the Executive Branch of the State Government for purposes of the General Procurement Law and are therefore not subject to that law. Although acknowledging some gaps in the law, MSBCA determined that procurement by the county boards was provided for in the Education Article of the Code and that some of the provisions in that Article were inconsistent with the General Procurement Law. Noting the extensive supervisory control possessed by the State Board of Education over matters relating to educational policy and the administration of the public school system, MSBCA held that the authority to review procurement practices and decisions of the county school boards was vested in the State Board of Education and not in MSBCA.

   The Circuit Court for Anne Arundel County, on appellants' petition for judicial review, affirmed MSBCA's decision, for the reasons cited by MSBCA. It concluded that "the Education Article, and not the General[***5] Procurement Law, governs the procurement of school bus transportation contracts, and that MSBCA is, therefore, not the appropriate forum to which disputes of this nature should be brought." Instead, citing the extensive authority vested in the State Board of Education, the court held that that board was "the appropriate forum" for resolving controversies involving a county board, "including a protest to a solicitation for bids." We granted certiorari in [*134] appellants' appeal on our own initiative, prior to any proceedings in the Court of Special Appeals, to review that judgment.

   DISCUSSION

   The General Procurement Law is codified in the Maryland Code as Division II (titles 11 through 17) of the State Finance and Procurement Article (SFP). Section 11-202 provides, in relevant part, that, unless otherwise expressly provided by law, [**628] the General Procurement Law applies to "each expenditure by a unit under a procurement contract." (Emphasis added). MSBCA is created by SFP § 15-205 and is vested with jurisdiction to hear and decide, subject to judicial review, all appeals from the final action of "a unit" on a protest relating to the formation of a procurement contract or, except[***6] for a contract claim relating to a lease of real property, on a contract claim concerning breach, performance, modification, or termination. See § 15-211.

   There is no dispute that the award of a contract by a county school board for bus transportation service constitutes an "expenditure" under a "procurement contract." Thus, whether appellee is subject to the General Procurement Law and, as a result, MSBCA has any jurisdiction in this matter, hinges on whether a county school board is "a unit" within the meaning of that law.

   The term "unit" is defined in SFP § 11-101(x):

   "(1) 'Unit' means an officer or other entity that is in the Executive Branch of the State government and is authorized by law to enter into a procurement contract.

   (2) 'Unit' does not include:

   (i) a bistate, multistate, bicounty, or multicounty governmental agency; or
 
(ii) a special tax district, sanitary district, drainage district, soil conservation district, water supply district, or other political subdivision of the State."

   Relying on a number of decisions of this Court holding that county school boards are State, rather than county, agencies, appellants assume that those boards are therefore[***7] part of the [*135] Executive Branch of the State government. They thus maintain that, as the boards are authorized by law to enter into procurement contracts but are not within any of the exclusions listed in § 11-101(x)(2), they fall within the definition of "unit." Appellants urge as well that inclusion of county school boards under the General Procurement Law is consistent with and supportive of the purposes of that law, as articulated in § 11-201. Nothing in the Education Article dealing with procurement by county school boards, they contend, is sufficiently inconsistent with the General Procurement Law to suggest an intent by the Legislature to exclude those boards from that law or from the jurisdiction of MSBCA. That agency, they insist, is far more competent to resolve procurement disputes than is the State Board of Education.
 
   The issue raised is purely one of statutory construction. As we have said so often, in construing a statute, our objective is to ascertain and give effect to the intent of the Legislature.  Melgar v. State, 355 Md. 339, 347, 734 A.2d 712, 716 (1999). If the language of the statute is clear and unambiguous and expresses a meaning consistent[***8] with the statute's goals and apparent purpose, our inquiry normally ends with that language. Id. If, on the other hand, the language is susceptible to more than one meaning and is therefore ambiguous, we consider "not only the literal or usual meaning of the words, but their meaning and effect in light of the setting, the objectives and purpose of the enactment," and, in those circumstances, in seeking to ascertain legislative intent, we consider "the consequences resulting from one meaning rather than another, and adopt that construction which avoids an illogical or unreasonable result, or one which is inconsistent with common sense." Tucker v. Fireman's Fund Ins. Co., 308 Md. 69, 75, 517 A.2d 730, 732 (1986); License Commissioners v. Toye, 354 Md. 116, 123, 729 A.2d 407, 410 (1999).

   County school boards are creatures of the General Assembly. Section 3-103 of the Education Article (ED) creates such a board for each county, with limited authority to control [*136] educational matters that affect the county. See ED § 4-101. In 13 counties, the members of the board are elected by the voters of the county ( § 3-114); [**629] in Baltimore City, the members[***9] of the board, other than a student member, are appointed jointly by the Governor and the Mayor of Baltimore ( § 3-108.1); in the other counties, the members are appointed by the Governor from among the residents of the county ( § 3-108). The county school systems are funded in part by the State and in part by the counties.  Hornbeck v. Somerset Co. Bd. of Educ., 295 Md. 597, 458 A.2d 758 (1983). n1 Although in terms of their composition, jurisdiction, funding, and focus, they clearly have a local flavor, the county school boards have consistently been regarded as State, rather than county, agencies. See Bd. of Ed. v. Montgomery County, 237 Md. 191, 197, 205 A.2d 202, 205 (1964); McCarthy v. Bd. of Education of A.A. Co., 280 Md. 634, 374 A.2d 1135 (1977); Bd. of Educ. v. P.G. Co. Educators' Ass'n, 309 Md. 85, 95 n.3, 522 A.2d 931, 936 (1987); Montgomery Co. Ed. Ass'n v. Bd. of Educ., 311 Md. 303, 317, 534 A.2d 980, 987 (1987); Board v. Secretary of Personnel, 317 Md. 34, 44 n.5, 562 A.2d 700, 705 (1989); Board v. Town of Riverdale, 320 Md. 384, 387 n.3, 578 A.2d 207, 209 (1990);[***10] State v. Board of Education, 346 Md. 633, 640, 697 A.2d 1334, 1338 (1997).

n1 In Fiscal Year 1998, local appropriations accounted for 54% of operating revenues for primary and secondary education. State appropriations accounted for 41.7% and Federal appropriations for 4.3%. See COMMISSION ON EDUCATION FINANCE, EQUITY, AND EXCELLENCE, Preliminary Report, January, 2000, at 30. That is consistent with the data presented in Hornbeck v. Somerset Co. Bd. of Educ., supra, 295 Md. at 606, 458 A.2d at 763.

   County school boards are considered generally to be State agencies because (1) the public school system in Maryland is a comprehensive State-wide system, created by the General Assembly in conformance with the mandate in Article VIII, § 1 of the Maryland Constitution to establish throughout the State a thorough and efficient system of free public schools, (2) the county boards were created by the General Assembly as an integral part of that State system, (3) their mission is [*137] therefore[***11] to carry out a State, not a county, function, and (4) they are subject to extensive supervision by the State Board of Education in virtually every aspect of their operations that affects educational policy or the administration of the public schools in the county. Although legally State agencies for those reasons, they are not normally regarded, for structural or budgetary purposes, as units within the Executive Branch of the State government.

   This becomes evident when we examine the place of county school boards in the structure and governance of public education in Maryland. In carrying out the mandate of Article VIII, § 1, the Legislature created a deliberate and well-defined balance between State government structures and State-based but predominantly local structures. The State government structure for primary and secondary education is the State Department of Education, created by ED § 2-101 "as a principal department of the State government." The Department consists of (1) the State Board of Education, which is the head of the Department ( § 2-102) and is vested with ultimate supervisory authority for determining educational policy in Maryland and administering the public[***12] school system, (2) the State Superintendent of Schools, who is a member of the Governor's Executive Council ( § 2-303(d)) and serves, in essence, as the chief executive officer of the Department, and (3) the other professional, administrative, and clerical employees employed by the Department, who are State government employees for budgetary and personnel purposes. See FY 2000 Maryland State Budget, Part II at 283, showing 1,344 authorized positions for the State Department of Education and an appropriation of nearly $67 million to pay those employees.

   The authority of the State Board of Education, codified in part in ED § 2-205, has been described as "a visitatorial power of the most comprehensive character," one [**630] that is "in its nature, summary and exclusive." Wiley v. School Comm'rs, 51 Md. 401, 405-06 (1879); Zantzinger v. Manning, 123 Md. 169, 178, 90 A. 839, 842 (1914); Wilson v. [*138] Board of Education, 234 Md. 561, 565, 200 A.2d 67, 69 (1964). It includes (1) determining the primary and secondary educational policies of the State, (2) explaining the true intent and meaning, causing to be carried out, and deciding all controversies [***13]and disputes arising under the provisions of the Education Article that are within its jurisdiction, n2 (3) adopting by-laws, having the force of law, for the administration of the public schools, (4) through the State Superintendent of Schools, exercising general control and supervision over the public schools and educational interests of the State, (5) preparing the annual State public school budget, including appropriations for State aid to the counties for current expenses, student transportation, and public school construction, and (6) specifying the information each county board is required to record and the form in which it is to be recorded.

n2 A major part of the Education Article concerns post-secondary education that is not generally within the jurisdiction of the State Board of Education (or the county boards).

   For each county, the Legislature has created a county department of education that, in structure, generally mirrors that of the State Department of Education. The county school board is the[***14] head of the county department and is responsible for administering, in the county, the supervening State policy determined by the State Board of Education, in accordance with State Board's directives. n3 See ED § 4-108. There is, as well, a county superintendent, who is the executive officer of the county board and, in essence, the chief executive officer of the county department. Finally, there are the teachers, principals, and other professional, administrative, clerical, security, transportation, and maintenance staff hired by the county school board to work in or service the schools in the county. Unlike the situation at the State level, the county superintendent and the employees of the county department of education are appointed and their salaries are set by the county school board upon recommendation of the county superintendent, [*139] § 4-103(a), in accordance with a personnel system established by the county board.

n3 The governing board for Baltimore City is currently called the New Baltimore City Board of School Commissioners. See ED § 3-108.1.

[***15]

   As we indicated, the State currently provides approximately 42% of the current operating revenues of the county boards. Most of those funds are appropriated by the General Assembly to the State Department of Education for pass-through to the county boards, either in conformance with the basic current expense sharing formula set forth in ED § 5-202 or pursuant to other State aid provisions in title 5 of that article. n4 See Fiscal Year 2000 Maryland State Budget, Part II, at 283-334. None of the major appropriations for operating expenses are made directly by the General Assembly to the county boards. The county boards prepare and submit their annual budgets to the respective county governments which, subject to certain limitations and requirements, have ultimate approval power over them. See ED §§ 5-102 and 5-103; 76 Op. Atty. Gen. 181, 184 (1991). The State Department of Education, the Governor, and the General Assembly are not directly involved in the budget process for the county boards. 

n4 The major component of State aid to the county school boards for operating expenses is the State share of basic current expense which, in FY 2000, amounted to $1.56 billion. Other significant categories were aid for students with disabilities ($158 million), aid for innovative programs ($42 million), aid for local employee fringe benefits ($404 million), and aid for transportation services ($175.5 million). See FY 2000 Maryland State Budget, Part II-311, 313, 316, 321, 334.

[***16]

   What this statutory scheme reveals is that, although the county boards are generally [**631] regarded as State agencies because they are part of the State public education system, are subject to extensive supervision and control by the State Board of Education, and exercise a State function, from a budgetary and structural perspective, they are local in character. They are not divisions of or units within the State Department of Education. They are subject to the county, not the State, budget process and must justify their budget requests to the county government. Most of their operational funding comes from the county, not the State, government. When these factors are taken into account, it is clear that the [*140] general characterization of county boards of education as State agencies does not require a finding that they are entities "in the Executive Branch of the State government" for purposes of SFP § 11-101(x). At the very least, there is an ambiguity as to whether the term "unit," as defined in § 11-101(x), applies to them. That ambiguity requires that we look further, beyond the precise language of § 11-101(x), to determine legislative intent.

   Until 1980, there was no centralized[***17] State procurement system in Maryland. The Board of Public Works had jurisdiction and control over the expenditure of the proceeds of loans authorized by the General Assembly, over expenditures for the acquisition of land, buildings, equipment, and other capital items (other than roads, bridges, and highways), over leases of land, buildings, and office space, over the acquisition of architectural and engineering services, and over the sale or other disposition of State property. See former Maryland Code (1969 Repl. Vol.), Article 78A, §§ 1, 7, 8, and 15, and former Maryland Code (1978 Repl. Vol.), Article 41, §§ 231N through 231EE. The Department of General Services, a principal department in the Executive Branch, exercised control over purchasing by State agencies. Former Maryland Code (1978 Repl. Vol.), Article 41, § 231G required every "using authority," defined as every "department, board, commission, bureau, division, institution and agency of this State" to purchase all materials, supplies, and equipment through or with the approval of the Secretary of that Department.

   Notwithstanding this general authority vested in the Board of Public Works and the Department of General[***18] Services, except for the school construction program then authorized by ED, §§ 5-301 through 5-306 (1978 Repl. Vol.) (see current ED §§ 5-301 through 5-308), neither the Board nor the Department of General Services exercised any authority over the procurement of supplies and services by the county boards of education. n5 Indeed, § 231L of Article 41 specifically declared [*141] that any "agency of the State government" that received more than half of its regular annual operating expenses from a political subdivision of the State was not a "using authority" within the meaning of that law.

n5 The one area in which the Legislature has expressly subjected county school board procurement to supervision and control by the Board of Public Works is school construction, and that is because, during the last three decades, the State has paid for most of the cost of that construction. See ED § 5-301. The Board of Public Works is authorized to adopt regulations and procedures for the school construction program, and both the county governments and all of the educational agencies, including the county school boards, are expressly made subject to those regulations. § 5-301(h). That authority is not pursuant to the General Procurement Law, however, but arises from provisions in the Education Article, and it is not complete. The county school boards still let the contracts in accordance with ED § 5-112. See 76 Op. Atty. Gen. 181, 183 (1991).

[***19]

   There were procurement statutes pertaining specifically to county school boards, but they were codified in the Education Article and, except for the provisions relating to the State school construction program, they made no mention of either the Board of Public Works or the Department of General Services. Section 5-110, for example, dealt with expenditures for school construction and improvement and [**632] the procurement of supplies and equipment other than textbooks and instructional materials, and provided that, if the cost exceeded $5,000, the county boards of education must advertise for bids and award the contract to the lowest responsible bidder, after giving consideration to certain enumerated factors. Section 4-116 authorized county school boards, on the recommendation of the county superintendent, to employ architects to assist in preparing plans and specifications for constructing and remodeling buildings. Section 7-106 required the county boards, on the recommendation of the county superintendent, to adopt their own procedures for the selection and purchase of textbooks, other instructional materials, stationery, and school supplies. Section 4-205 required contracts made [***20]by the county boards to be approved by the county superintendent.

   In 1977, the General Assembly, concerned about the piecemeal approach it had hitherto taken with respect to State [*142] procurement, created a Purchasing and Procurement Policies Task Force to review and make recommendations regarding State purchasing and procurement laws and regulations. See 1977 Md. Laws, Joint Resolution No. 28. The Task Force, after extensive review, prepared and submitted a bill to the 1978 session (1978 Senate Bill 748), but the bill did not pass. One of the unresolved concerns was over "who should be included and who should be exempted from the provisions of this legislation." See PURCHASING AND PROCUREMENT POLICIES TASK FORCE WORKING DRAFT NO. 3, Oct. 30. 1978, at iv.

   After the failure of Senate Bill 748, the Task Force conducted further study and identified and reviewed 383 procurement laws found in 39 different Articles of the Code, among which were those in the Education Article dealing with county school boards. Each of those laws was examined to determine, among other things, whether (1) it was compatible or in conflict with the proposed comprehensive procurement law, (2) it should be[***21] transferred to and become a part of the new procurement law, and (3) the agency to which the law pertained should be subject to the new procurement law. In that third regard, the Task Force noted the existence of State agencies "which seem predominantly local in character" and recommended that "most, if not all, of these should probably be excluded from the effect of the [new procurement law]." PURCHASING AND PROCUREMENT POLICIES TASK FORCE, Subcommittee to Review Current State Procurement Laws, Report of Recommendations, December, 1978, at 11.

    Legislation implementing the Task Force's recommendations was enacted in 1980, to become effective in 1981. See 1980 Md. Laws, ch. 775. It placed full control over the procurement of "all supplies, services, construction, and other items procured by the State" in the Board of Public Works, which was directed to adopt regulations "governing procedures for the review and approval of procurement contracts." Former Maryland Code (1973 Repl. Vol. and 1979 Supp.) Article 21, § 2-101. The law allowed the Board to delegate some of its authority to certain control agencies -- the Departments of General Services, Budget and Fiscal Planning, [***22] and Transportation, [*143] and the University of Maryland. The new procurement law was made applicable to "every expenditure by a State agency for supplies, services, and construction under any contract or similar business agreement." Id., Article 21, § 1-202(a)(1). "State agency," in turn, was defined in § 1-101(p) as "any agency, association, board, bureau, college, commission, committee, council, foundation, fund, department, institute, institution, public corporation, service, trust, university, or other unit of the executive branch of the State government and includes any subunit within any of these units."

   The current version of the General Procurement Law was enacted in 1988 as part of the ongoing Code Revision process that produced SFP. It was in that enactment [**633] that the term "unit" was substituted for the former terms "State agency" and "procurement agency," with no substantive change intended. See Revisor's Note to SFP § 11-101(v) (1988 Vol.).

   Both the history of the 1980 law and the experience under it reveal a number of things relevant to the issue before us. The Legislature was aware that procurement of supplies and services by county school boards was governed by [***23]provisions in the Education Article and that such procurement had never been subject to control by the Board of Public Works or the Department of General Services. It was aware, by contrast, that school construction projects were subject to some Board of Public Works control, mostly in terms of which projects and costs the State would fund. The Legislature had before it the basic policy issue of whether to include under the new procurement law procurement by agencies that had not previously been subject to Board of Public Works and Department of General Services jurisdiction, including agencies that were considered to be State agencies but that were predominantly local in character. Some agencies, or types of procurement, it chose to include; others it chose to exclude. See SFP, §§ 11-101(x)(2) and 11-203. In Section 24 of the 1980 enactment, the Legislature declared that all laws that were inconsistent with the new procurement law were superseded to the extent of the inconsistency. [*144]

   In making these choices, the General Assembly left intact, without change, the procurement provisions in the Education Article. That alone indicates an intent to allow the county school boards[***24] to continue to operate under those provisions and not subject them to an entirely new regime of substantive and procedural requirements. Of at least equal significance is the fact that most of those provisions have since been amended, demonstrating clearly a legislative recognition that they were not superseded by the 1980 law. n6

n6 Since 1980, ED § 5-112 (former § 5-110), dealing with certain capital expenditures and the purchase of supplies and equipment, has been amended 13 times; § 7-106, dealing with the purchase of textbooks and instructional materials, and § 4-117 (former § 4-116), authorizing the county school boards to employ architects, have been amended twice; § 4-205 requiring approval by the county superintendent of all contracts, has been amended five times; minority business enterprise laws applicable to procurement by the Montgomery County, Prince George's County, and Baltimore City school boards were enacted. See ED §§ 4-125, 4-310, and 5-112(d).

   In the 19 years since the General[***25] Procurement Law went into effect, no effort has been made to subject the procurement of supplies and services by county school boards to that law. To the best of our knowledge, with the limited exception noted for school construction, none of the State control agencies -- neither the Board of Public Works nor the Departments of Budget and Management or General Services -- have ever attempted to exercise jurisdiction over procurement contracts entered into by the county school boards. Throughout that period, those contracts have been regarded as local matters, subject to supervision on the State level by the State Board of Education. The State Board of Education has, indeed, entertained appeals from non-school construction procurement decisions made by the county school boards, including decisions regarding school bus contracts. See, for example, Clyde's Bus Service v. Anne Arundel County Board of Education, 3 Opinions of MSBE 621 (1984) (affirming cancellation of school bus contract because contractor was disqualified, due to vision deficiency, from driving school bus); Holloway Transit, Inc. v. Wicomico County Board of Education, 5 Opinions of MSBE [*145] 431 (1989) (affirming [***26]decision of county school board to limit the number of school bus contracts awardable to single contractor); Bickling v. Caroline County Board of Education, 6 Opinions of MSBE 80 (1991) (affirming decision of county school board to award school bus contract to a [**634] different contractor). Compare S.B. Construction Company, Inc. v. Montgomery County Board of Education, 3 Opinions of MSBE 595 (1984), in which the State Board of Education concluded that a contractor was not required to present a school construction procurement dispute, which involved primarily legal issues, to the Board before proceeding to court. The Board carefully noted its limited jurisdiction in that area, agreeing to review those matters dealing "with the proper administration of the school system" but declining to rule on whether the county board's actions "were contrary to any procurement regulations or requirements of the Maryland State Interagency Committee for School Construction (IAC), which is subject to the Maryland State Board of Public Works, and not this agency." Id. at 600.

   We find no basis, upon this analysis, to conclude that the Legislature ever intended to subject procurement by a county[***27] school board to the General Procurement Law. It is inconceivable that the General Assembly would have made such a dramatic shift in policy without some clearer indication of its intent to do so. n7 We hold, therefore, that a county school board is not a "unit" within the meaning of that law, and, accordingly, that MSBCA has no jurisdiction over disputes [*146] arising from procurement decisions made by those boards.

n7 The effects of subjecting county school board procurement to the General Procurement Law are not inconsequential. Major changes in contract terms and procedure would be required; new duties would be cast upon the Board of Public Works and the Departments of General Services and Budget and Management; and new and expanded jurisdiction would be vested in MSBCA. Apart from these administrative or logistical consequences, subjection of county school board procurement to the General Procurement Law might well put the Board of Public Works, the Department of Budget and Management, and MSBCA in the middle of disputes over textbook and instructional material selection, which the Legislature could not possibly have intended.

[***28]

   JUDGMENT AFFIRMED; APPELLANT TO PAY THE COSTS. 

McCoy v. Correctional Medical Service 
Pet. Docket No. 539, September Term, 1999
 
COURT OF APPEALS OF MARYLAND
 
357 Md. 482; 2000 Md. LEXIS 82

 February  10, 2000, Decided

NOTICE: 

  [*1]  DECISION WITHOUT PUBLISHED OPINION 

PRIOR HISTORY:  (No. C-1997-42032, Circuit Court for  Anne Arundel  County).

OPINION: Petition for Writ of Certiorari denied. 

Raimond v. Garver 
Pet. Docket No. 517, September Term, 1999
 
COURT OF APPEALS OF MARYLAND
 
357 Md. 483; 2000 Md. LEXIS 88

 February  10, 2000, Decided

NOTICE: 

  [*1]  DECISION WITHOUT PUBLISHED OPINION 

PRIOR HISTORY:  (No. C-1999-53765CP, Circuit Court for  Anne Arundel  County).

OPINION: Petition for Writ of Certiorari denied. 

Smith v. General Electric 
Pet. Docket No. 531, September Term, 1999
 
COURT OF APPEALS OF MARYLAND
 
357 Md. 234; 743 A.2d 246; 2000 Md. LEXIS 30

 January  13, 2000, Decided

NOTICE: 

  [*1]  DECISION WITHOUT PUBLISHED OPINION 

PRIOR HISTORY:  (No. C-1999-54718RA, Circuit Court for  Anne Arundel  County).

OPINION: Petition for Writ of Certiorari denied. 

RAYNOR ASSOCIATES L.P. v. BALTIMORE DOOR AND FRAME COMPANY,INC. 
No. 62, Sept. Term, 1999
 
COURT OF APPEALS OF MARYLAND
 
357 Md. 303; 744 A.2d 25; 2000 Md. LEXIS 7

 January  12, 2000, Filed

   PRIOR HISTORY:  [***1] Certiorari to the Court of Special Appeals (Circuit Court for  Anne Arundel  County). Case No. C-9735248CN. Eugene M. Lerner, JUDGE. 

DISPOSITION: JUDGMENT OF COURT OF SPECIAL APPEALS REVERSED; CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO AFFIRM JUDGMENT OF CIRCUIT COURT FOR ANNE ARUNDEL COUNTY; COSTS IN COURT OF SPECIAL APPEALS TO BE PAID BY PETITIONER, RAYNOR; COSTS IN THIS COURT TO BE PAID BY RESPONDENT, BDF. 
CASE SUMMARY 

PROCEDURAL POSTURE:  Plaintiff landlord petitioned for a writ of certiorari, appealing the Court of Special Appeals (Maryland), denying its motion for reconsideration, in its action against defendant tenant for summary ejectment for failure to pay rent.

OVERVIEW:  Plaintiff landlord brought an action against defendant tenant for summary ejectment for failure to pay rent. The trial court rendered judgment for plaintiff. On appeal, the appellate court rendered judgment for defendant sua sponte, after dismissal of defendant's appeal. Plaintiff moved for reconsideration, which the appellate court denied. Plaintiff petitioned for a writ of certiorari, claiming that the appellate court did not have the authority to reinstate defendant's appeal following its dismissal, and to grant affirmative relief to defendant after defendant's appeal had been dismissed. The reversed and remanded, holding that the appellate court erred in granting affirmative relief to defendant after its appeal was dismissed for failure to file a timely brief, and when that deficiency was brought to its attention, in achieving the same result by reinstating the appeal eight months after the appeal had been dismissed and two months after it erroneously granting the affirmative relief.

OUTCOME:  Certiorari granted and judgment reversed, because the appellate court did not have the authority to reinstate defendant's appeal following its dismissal, or to grant affirmative relief to defendant after defendant's appeal had been dismissed.
 
CORE TERMS:  repair, own initiative, lease, reconsideration, affirmative relief, extract, order of dismissal, clerk, motion to dismiss, cross-appeal, unjust enrichment, damaged, prejudiced, rescinded, reinstate, tiles, parking areas, cross-appellee, ejectment, rental, orders of dismissal, pending appeal, enumerated, time prescribed, motion filed, cross-appellant, reinstating, designated, adjacent, briefing

CORE CONCEPTS -  

Civil Procedure: Relief From Judgment: Void Judgments
Civil Procedure: Appeals: Reviewability
A judgment or decree from which no appeal has been taken may not be reversed for the benefit of one who did not appeal even though in regard to him the judgment or decree was both erroneous and injurious.

Civil Procedure: Appeals: Appellate Jurisdiction
Md. Code Ann., Cts. & Jud. Proc. § 1-403(b) requires that an appeal in the Court of Special Appeals be heard by a panel of not less than three judges and that the concurrence of a majority of the panel is necessary for the decision of a case. Md. Code Ann., Cts. & Jud. Proc. § 1-403(b).

Civil Procedure: Appeals: Appellate Jurisdiction
Md. R. App. Review, Ct. App. And Ct. Spec. App. 8-602(b) provides that, except as otherwise permitted in that section of the rule, a motion to dismiss shall be ruled on by the number of judges required by law to decide an appeal, a minimum of three. The chief judge, or a judge designated by the chief judge, may rule on a motion to dismiss that is based on any reason set forth in subsections (2), (3), (5), (7), or (8) of section (a) of this rule or on a motion to dismiss based on subsection (a)(4) of this rule challenging the timeliness of the information report. Md. R. App. Review, Ct. App. And Ct. Spec. App. 8-602(b).

Civil Procedure: Appeals: Appellate Jurisdiction
Civil Procedure: Appeals: Reviewability
Except as limited by statute or rule, a trial court has inherent authority to control its own docket. A rule authorizing a litigant to file a procedural motion for this purpose in one respect or another should not be construed to prohibit the court from accomplishing the same object sua sponte unless such construction is compelled by clear language.

Civil Procedure: Appeals: Appellate Jurisdiction
Civil Procedure: Appeals: Reviewability
The Chief Judge may exercise the same authority to act for the court with respect to matters arising under Md. R. App. Review, Ct. App. And Ct. Spec. App. 8-602(a)(2), (3), (4), (5), (7), and (8), on the court's own initiative, as he or she could on a motion.

Civil Procedure: Dismissal of Actions: Involuntary Dismissal
Civil Procedure: Appeals: Appellate Jurisdiction
Md. R. App. Review, Ct. App. And Ct. Spec. App. 8-602(c)(1) provides that, when an order of dismissal was entered by the Chief Judge alone, pursuant to Md. R. App. Review, Ct. App. And Ct. Spec. App 8-602(b), the order dismissing the appeal, on motion filed within ten days after entry of the order, shall be reviewed by the number of judges of the court required by law to decide an appeal. Md. R. App. Review, Ct. App. And Ct. Spec. App. 8-602(c)(1).

Civil Procedure: Dismissal of Actions: Involuntary Dismissal
Civil Procedure: Appeals: Reviewability
Md. R. App. Review, Ct. App. And Ct. Spec. App. 8-602(c)(4) establishes the exclusivity of the reconsideration process specified in the rule. It states that, when an order dismissing an appeal is reviewed by the Court on motion filed pursuant to this section, the moving party may not obtain further reconsideration of the dismissal pursuant to Md. R. App. Review, Ct. App. And Ct. Spec. App. 8-605. Md. R. App. Review, Ct. App. And Ct. Spec. App. 8-602(c)(4).

COUNSEL: ARGUED BY Jeffrey S. Larson (Richard S. Basile, on brief), all of Greenbelt, Maryland, FOR PETITIONER.
 
ARGUED BY Jeffrey S. Marcalus (Hillman, Brown & Darrow, P.A., on brief) of Annapolis, Maryland, FOR RESPONDENT.

JUDGES: ARGUED BEFORE Bell, C.J.; Eldridge, Rodowsky, Raker, Wilner, Cathell, and Harrell, JJ. Opinion by Wilner, J.

OPINIONBY: WILNER

OPINION: [*306] [**26]
 
Opinion by Wilner, J.
 
Filed: January 12, 2000

   We shall hold in this case that the Court of Special Appeals erred (1) in granting affirmative relief to an appellee whose own appeal, seeking only part of that relief, had earlier been dismissed for failure to file a timely brief, and (2) when that deficiency was brought to its attention, in achieving the same result by reinstating the appeal eight months after the appeal had been dismissed and two months after the court had issued its initial opinion erroneously granting the affirmative relief.

   [**27] The dispute arose out of a commercial lease of a 22,600 square foot facility in an industrial park, to be used by respondent, Baltimore Door & Frame Company, Inc. (BDF), for the assembly and[***2] distribution of building materials. The lease term ended on June 15, 1996, but BDF, awaiting completion of a new facility, remained in possession and commenced negotiations with the landlord, petitioner Raynor Associates Limited Partnership (Raynor), for an extension of the lease to March, 1997. No agreement was ever reached on an extension, however. Although the lease provided that, if BDF remained in possession after termination, it would become a month-to-month tenant at a rental equivalent to 150% of the lease rental, BDF paid only the lease rental during its extended stay.

   In July or August, 1996, while negotiations for an extension were ongoing, Raynor insisted that BDF pave or repave certain common areas adjacent to the leased premises, claiming that BDF's trucks and fork lifts had damaged those areas. Although BDF denied any responsibility for the damage, it [*307] made the repairs, at a cost of nearly $16,000, apparently believing that, if it did so, Raynor would allow it to remain in possession at the lease rental rate. Raynor denied that it had made any such agreement and, in January, 1997, filed a summary ejectment action in the district court, alleging a failure by BDF to pay [***3] the required rent. The court apparently concluded that there was no enforceable extension agreement and rendered judgment for Raynor.

   BDF appealed that judgment to the Circuit Court for Anne Arundel County. In a separate action in the same court, BDF filed a four-count complaint seeking injunctive and declaratory relief, an order for specific performance, and damages. Alleging that, at Raynor's request, it had made substantial repairs and improvements to Raynor's property, BDF asked the court to enjoin Raynor from enforcing the district court ejectment order, to declare BDF's rights under the lease, to order Raynor to perform its obligations under the lease, and for damages in the amount that the money spent on repairs and improvements exceeded any rent found to be due. BDF alleged that it had paid all disputed rent into an interest-bearing account, although it did not indicate in its complaint any details regarding the account. n1 Raynor answered the complaint and filed a counterclaim. It contended that the lease required BDF to vacate the premises at the end of the lease term, on June 14, 1996, and made BDF liable for any actual damages incurred by Raynor, plus attorneys' fees, [***4] if it failed to do so. BDF failed to vacate, and Raynor sought $21,200 in damages.

n1 It appears from what was said at trial that the full rental, at the 150% rate, was paid into an escrow account held by the district court.

   The appeal was on the record made in the district court, and that was taken up first. BDF claimed that the parties had actually reached an oral agreement for an extension of the lease, on the same terms, to March, 1997, on the condition that BDF make repairs to the parking areas adjacent to the leased premises. After listening to argument, the court determined that the findings of the district court -- that there was no [*308] enforceable extension agreement and that BDF had become a month-to-month tenant -- were not clearly erroneous. It therefore affirmed the district court judgment, determined that Raynor was entitled to the damages it claimed, and indicated its intent to disburse the funds in the escrow account to Raynor. The correctness of those findings and the validity of the judgment affirming[***5] the ejectment order are not now before us.

   With respect to BDF's complaint, the court dismissed the claims for injunctive, declaratory, and specific performance relief on the ground that those claims all sprang from the alleged oral extension of [**28] the lease, which the court had just resolved in the context of the district court appeal. Without mentioning the term, the court essentially applied the doctrine of res judicata. It turned then to BDF's claim for the amounts it expended on repairs and improvements, based on a theory of unjust enrichment. There was a significant dispute as to whether BDF was obliged to make the various repairs. Raynor admitted asking BDF to make certain repairs but claimed, and offered evidence to show, that some of the items repaired -- particularly access roads, parking areas, and interior dry-wall -- were items that BDF had damaged. BDF averred otherwise. It denied having damaged the parking and access road areas and claimed nearly $16,000 for repaving those areas. n2 It also sought $400 for replacing ceiling tiles damaged because of leaks from the roof, which it claimed was Raynor's responsibility to repair. Raynor produced evidence that the tiles[***6] had been damaged about three years earlier, that Raynor had offered to replace them, but that BDF decided to replace them with tiles it already had in stock.

n2 BDF claimed that the adjacent road and parking areas were not part of the leased premises and, for that reason, it had no obligation to repair them. Raynor conceded that there was no express provision in the lease requiring BDF to repair those areas but asserted that it was BDF's trucks and fork lifts that caused the damage, and that BDF was obliged to leave the property in the same condition it found it.

   After listening to the disputed evidence, the court disallowed the claim for most of the cost of repaving, but found an [*309] entitlement, on an unjust enrichment basis, to reimbursement for two items -- $400 for the ceiling tiles and $2,721 for paving two small areas, for a total of $3,122. n3 Judgment in that amount was entered for BDF on its complaint.

n3 There is a discrepancy of approximately one dollar between the component figures and the sum of the judgment as computed by the trial court.

[***7]

   The judge's findings were announced from the bench on September 26, 1997, at the conclusion of the hearing. Without waiting for the written judgment to be filed, BDF noted an appeal on October 2, 1997. Raynor filed a cross-appeal on October 20. Both appeals were from the money judgment in favor of BDF; they did not purport to concern the affirmance of the district court summary ejectment order, which would not have been appealable to the Court of Special Appeals in any event. The actual judgment was filed October 22. By virtue of Maryland Rule 8-602(d), both appeals are deemed to have been filed on October 22. n4 Because BDF filed its appeal first, it became the appellant and Raynor became the appellee/cross-appellant. See Md. Rule 8-111(a).

n4 It would be helpful if litigants and their attorneys would follow the simple rules governing appeals. With exceptions not remotely relevant here, an appeal to the Court of Special Appeals may be taken only from a final judgment. Maryland Rule 2-601 requires that a judgment be set forth on a separate document and declares the judgment effective when that document is recorded by the clerk. That is when the 30-day period for noting an appeal commences. Although Rule 8-602(d) preserves an appeal taken after the announcement or signing of the judgment by the court but prior to its entry by the clerk, that rule is intended as a saving feature, not a preferred method of appellate practice. Disappointed litigants, and their attorneys, should wait for the entry of the judgment by the clerk before noting an appeal. Following that course not only makes the docket more coherent but eliminates uncertainty about the effect of a premature appeal on post-judgment motions, requests for in banc review, and the times for preparing and filing the record.

[***8]

   In July, 1998, the Court of Special Appeals sent to the parties a briefing and argument schedule that clearly identified BDF as the appellant and advised that, in accordance with Md. Rule 8-502, its brief was due on August 24, 1998, with Raynor's brief to follow 30 days after the filing of BDF's brief. [*310]For whatever reason, BDF failed to file its brief by the due date, and, on September 21, 1998, the Chief Judge of the Court of Special Appeals, on the [**29] court's own initiative, entered an order pursuant to Md. Rule 8-602(a)(7), dismissing BDF's appeal. Md. Rule 8-602(a)(7) permits the court, on its own initiative, to dismiss an appeal if a brief or record extract is not filed by the appellant within the time prescribed by Md. Rule 8-502. The order noted that BDF's appellant's brief was due August 24, 1998, that the brief had not been filed, but that Raynor had filed an appellee/cross-appellant's brief on August 25. That brief, curiously, contained the record extract that ordinarily would be attached to an appellant's brief. n5 In addition to dismissing BDF's appeal, the order stated that the appeal would proceed under the caption of Raynor v. BDF, directed Raynor to conform its brief[***9] and record extract to its new status as appellant, and ordered that BDF file an appellee's brief by October 30, 1998. Four days later, BDF's untimely appellant/cross-appellee's brief was filed.

n5 BDF attributes the peculiarity of its failure to timely file an appellant's brief, coupled with Raynor's filing its brief 30 days early, at about the time the appellant's brief was due, to confusion over which party was the appellant. On this record, we fail to see any basis for confusion. Apart from the clear mandate of Md. Rule 8-111(a), the scheduling order entered by the Court of Special Appeals in July, 1998 clearly identified BDF as the appellant and BDF's attorney as attorney "for appellant" and stated that the appellant's brief was due by August 24, 1998.

   The parties complied, at least in part, with that order. Raynor refiled its brief and record extract, with a yellow cover and designating itself as the appellant. Its argument was that BDF had failed to establish the elements necessary to a claim of unjust[***10] enrichment. In particular, it urged (1) that the lease required BDF to repair any damage it caused and provided that all tenant improvements became the property of landlord, (2) that BDF thus knew when it made the repairs that it was doing only what it was obliged to do under the lease and that the improvements would become Raynor's property at the end of the lease, and (3) that apart from any lease requirements, there was no unjust enrichment because BDF was simply [*311] repairing damage it caused to Raynor's property. Raynor also noted that unjust enrichment is based on the value of a benefit conferred, not the amount spent, and that BDF had failed to produce any evidence of such value. In the absence of that evidence, it averred, there was no basis for a judgment for unjust enrichment. It sought a reversal of the circuit court judgment.

   BDF filed a new appellee's brief which, except for having a green cover and redesignating BDF as appellee and Raynor as appellant, was identical to the appellant/cross-appellee's brief that it untimely filed after its appeal had been dismissed. The brief responded, in part, to Raynor's arguments but urged that the court erred in not awarding BDF a greater[***11] sum. Significantly, although BDF had claimed, in the circuit court, an entitlement to approximately $16,000 in repaving costs alone, in its two briefs -- the untimely appellant/cross-appellee's brief and the later appellee's brief -- it asserted a right to only $6,507. It averred that "the total amount of repairs Appellee made at the request of Appellant covering areas not damaged by Appellee was $6,507.25," and, in the "Conclusion" part of its briefs, it asked that the Court of Special Appeals "modify the Judgment of the Circuit Court for Anne Arundel County and enter judgment in favor of Appellee in the amount of $6,507.25 and assess the costs of this case to the Appellant."

   Notwithstanding that (1) because its own appeal had been dismissed, BDF was not entitled to any affirmative relief from the appellate court, and (2) in any event, the only relief it requested in its briefs was an increase in the judgment from $3,122 to $6,507, the Court of Special Appeals, on March 23, 1999, filed an opinion in which it concluded that the judgment for $3,122 should be vacated and that a new judgment should be entered for BDF in the [**30]amount of $16,345. In reaching this odd, and wholly[***12] unauthorized, result, the panel was obviously unaware that BDF's appeal had been dismissed. At the beginning of its opinion, the court stated that BDF had filed "a cross-appeal" raising the question of whether the trial court erred in limiting its recovery to $3,122, but it never took [*312] account of the fact that the appeal, which was not a cross-appeal in any event, had been dismissed.

   The intermediate appellate court first disposed of Raynor's arguments, rejecting all of them and concluding that BDF had no obligation to repair any of the areas it repaired. It then held that the actual cost of the work, established by invoices admitted into evidence, could be taken to determine the amount of benefit conferred by BDF and, on that basis, excused the lack of any direct evidence establishing that value. The correctness of those holdings is not before us, as it was not raised in Raynor's petition for certiorari. The issue before us arose from the court's discussion in Part III of its opinion, where it considered BDF's nonexistent "cross-appeal." The "cross-appeal," it said, sought damages for the repairs made to the parking areas, which the appellate court determined to be $15,945.54. [***13] Having held that BDF was not obligated to make those repairs, the court concluded that "BDF is entitled to recover that amount from Raynor as well." The aggregate amount it found due was the $15,945.54 and the $400 for ceiling tiles, or $16,345.54. Accordingly, it vacated the judgment for $3,122.65 and remanded with instructions to enter judgment for BDF in the amount of $16,345.54.

   An unreported opinion of the Court of Special Appeals was filed March 23, 1999. On April 5, 1999, Raynor filed a motion for reconsideration, reminding the court that BDF's appeal had been dismissed on September 21, 1998 and that, in any event, BDF had never asked, in its appeal, for more than $6,507. It urged that, in light of the dismissal, the court had no jurisdiction to award affirmative relief to BDF. Accepting the fact that the court had rejected its own arguments for a reversal of the judgment, Raynor asked in its motion that the court simply affirm the judgment entered by the circuit court.

   The court granted the motion but denied the requested relief. In a supplemental opinion on the motion, the court conceded that the panel assigned to hear the case "was not made aware of the September 21, 1998 order[***14] and in the absence of any indication from the parties that BDF's appeal [*313]had been dismissed proceeded to address the merits." It concluded, then, that there was no prejudice to either Raynor or the court from the late filing of BDF's brief and determined that, because BDF's appeal had been dismissed on the court's initiative, rather than on motion, the court had the discretion to reinstate the appeal, which it proceeded to do. Continuing, nonetheless, to ignore the fact that BDF had limited its request for an increase to $6,507, the court confirmed its decision to direct an increase to $16,345.45.

   We granted certiorari to consider two questions: (1) whether the Court of Special Appeals had authority to grant affirmative relief to BDF after BDF's appeal had been dismissed, and (2) whether the court had authority to reinstate the appeal eight months after it had been dismissed and two months after the court decided the appeal.

   There really is no dispute with respect to the first issue, which has only a conditional relevance at this point. In Taylor v. Wahby, 271 Md. 101, 110, 314 A.2d 100, 104-05 (1974), we noted that we have "consistently followed the rule that[***15] a judgment or decree from which no appeal has been taken may not be reversed for the benefit of one who did not appeal even though in regard to him the judgment or decree was both erroneous and injurious." See also Fitch v. Double "U" Sales Corp., 212 Md. 324, 329-30, 129 A.2d 93, 96 (1957); County Executive v. Supervisor, 275 Md. 64, 68, 337 A.2d 682, 685 (1975). In ruling on the [**31] motion for reconsideration, the Court of Special Appeals itself recognized that it had no authority to grant affirmative relief to BDF in the absence of a pending appeal by that party. That is why, we presume, it granted the motion and attempted to achieve its ultimate end by reinstating BDF's appeal. BDF makes no effort in this Court to sustain the initial decision of the Court of Special Appeals, which obviously was wrong. The judgment of the Court of Special Appeals currently under review, however, was not entered in the absence of a pending appeal by BDF. The primary question before us is the second one raised in the petition -- whether the intermediate appellate court acted properly [*314] in reinstating the appeal. If, as we shall hold, it erred in that action, then[***16] the principle noted above, precluding affirmative relief in the absence of a pending appeal, would dictate a reversal of that court's judgment.

   The Maryland Rules dealing with appellate procedure set forth both the grounds upon which an appeal may be dismissed in the Court of Special Appeals and the methods by which the appeal may be dismissed. Rule 8-602(a) states the 10 grounds upon which an appeal may be dismissed, either upon motion or on the court's own initiative. Maryland Code, § 1-403(b) of the Courts and Judicial Proceedings Article requires that an appeal in the Court of Special Appeals be heard by a panel of not less than three judges and that the concurrence of a majority of the panel is necessary for "the decision of a case." In conformance with that general requirement, Rule 8-602(b) provides that, except as otherwise permitted in that section of the Rule, a motion to dismiss shall be ruled on by the number of judges required by law to decide an appeal -- a minimum of three. Section (b) goes on to provide, however, that the Chief Judge, or a judge designated by the Chief Judge, n6 "may rule on a motion to dismiss that is based on any reason set forth in subsections[***17] (2), (3), (5), (7), or (8) of section (a) of this Rule or on a motion to dismiss based on subsection (a)(4) of this Rule challenging the timeliness of the information report."

n6 For convenience, we shall hereafter omit reference to a judge designated by the Chief Judge and refer only to the authority of the Chief Judge.

   The areas in which the Chief Judge alone may act for the court, in the first instance, were selected with care and have a certain commonality to them. With the exception of subsections (2) and (8), they all deal with the failure of an appellant to meet a clear time deadline specified in other rules -- the failure to note the appeal timely (3), to file the record timely (5), to file the brief and record extract timely (7), or to file the information report required by Rule 8-205 timely (4). Those time requirements, in most instances, are easily and objectively [*315] ascertainable, as is a determination of whether they have been met. The document in question either has been filed by the relevant deadline[***18] or it has not. Although the grounds stated in subsections (2) and (8) are not time-based, they also are matters that, ordinarily, are objectively ascertainable -- the failure to pay or obtain a waiver of the required filing fee (2), or filing a brief or record extract that does not comply with the content and style requirements of Rules 8-112, 8-501, 8-503, or 8-504. Those are matters that, in our rule-making capacity, we concluded could fairly and efficiently be determined by the Chief Judge alone in the first instance and ordinarily did not need to be presented to a panel. We obviously were aware that the judges of the Court of Special Appeals, like the judges of this Court, have their principal offices in their respective counties and normally are together only when they hear oral argument or on designated conference days. Requiring the convening of a panel to deal initially with those kinds of matters could substantially interfere with the efficient processing of the court's caseload, to no appreciable advantage.

   [**32] Although the latter part of Rule 8-602(b) speaks of the Chief Judge ruling "on a motion to dismiss" based on those subsections, the law generally is that, unless a statute[***19] or rule expressly, or by necessary implication, provides otherwise, a court may ordinarily do on its own initiative what it may do on motion of a party, at least where the party benefitted by the action is not likely to oppose or be prejudiced by it. In Goins v. State, 293 Md. 97, 111, 442 A.2d 550, 557 (1982), we stated:

   "Except as limited by statute or rule, a trial court has inherent authority to control its own docket. A rule authorizing a litigant to file a procedural motion for this purpose in one respect or another should not be construed to prohibit the court from accomplishing the same object sua sponte unless such construction is compelled by clear language."
 
See also Board of Nursing v. Nechay, 347 Md. 396, 701 A.2d 405 (1997), but compare Hartford Ins. Co. v. Manor Inn, 335 Md. 135, 642 A.2d 219 (1994) (court has no authority, in the [*316] absence of a motion, to grant summary judgment) and Urquhart v. Simmons, 339 Md. 1, 660 A.2d 412 (1995) (court has no authority to transfer case for forum non conveniens on its own initiative).

   That same general principle is necessarily applicable to appellate[***20] courts and to the authority of the Chief Judge and the court itself to do on their own initiative what they could do on motion. We may take judicial notice of the operation and practices of the courts of this State (see Prince George's County v. Aluisi, 354 Md. 422, 434, 731 A.2d 888, 895 (1999); State v. Frazier, 298 Md. 422, 430 n.5, 470 A.2d 1269, 1273 n.5 (1984)), and, in that regard, we take judicial notice of the long-established procedure in the Court of Special Appeals for the Chief Judge to enter orders of dismissal on the enumerated grounds, on the court's own initiative, rather than on motions filed by an appellee or cross-appellee. The practice, some of which is described in PAUL SANDLER & ANDREW LEVY, APPELLATE PRACTICE FOR THE MARYLAND LAWYER: STATE AND FEDERAL, Md. Inst. for Continuing Prof'l Educ. for Lawyers (1994), is for the clerks of the circuit courts, on a monthly basis, to inform the clerk of the Court of Special Appeals of the filing of appeals, for the appellate clerk then to develop a "tickler" of when information reports and records are due to be filed and, after an appropriate grace period and in the absence of any approved [***21]extension, to prepare and present to the Chief Judge an order of dismissal if the report or the record is not timely filed. Id. at 40. Similarly, once the record is filed and a briefing schedule is sent to the parties, the clerk of the Court of Special Appeals keeps track of when the appellant's brief and record extract is due and, after a grace period and in the absence of any approved or stipulated extension, prepares and presents to the Chief Judge an order of dismissal if the document is not timely filed. Id. at 41.

   Over the years, this practice, of allowing the Chief Judge to do on the court's own initiative what the Chief Judge could do on motion, has proven to be fair, reasonable, and efficient. We fail to see how an appellee, even if also a cross-appellant, [*317] can be prejudiced by or is likely to object to a routine dismissal of the appellant's appeal, by action of the Chief Judge, because the appeal was not taken timely, or an information report, the record, or the appellant's brief or record extract was not filed timely. Submission of such matters routinely by the clerk to the Chief Judge is not only for the convenience of the court, but it avoids the need for the appellee[***22] to file and serve a motion on the appellant and for the court then to have to wait for a possible answer. We thus conclude that the Chief Judge may exercise the same authority to act for the court with respect to matters arising under Rule 8-602(a)(2), (3), (4), (5), (7), and (8), on the court's own initiative, as he or she could on a motion.

   Reconsiderations by the Court of Special Appeals are dealt with in two different rules -- Rule [**33] 8-602(c) and Rule 8-605. We are concerned here with the former, which deals specifically with the reconsideration of an order of dismissal entered under Rule 8-602. Rule 8-605 deals with the reconsideration of other dispositions of an appeal, normally on the merits and after briefing. Rule 8-602(c) draws a clear distinction between appeals dismissed by action of the Chief Judge alone and those dismissed by action of a panel. In that regard, it must be kept in mind that (1) the Chief Judge may act alone in only six of the ten categories enumerated in Rule 8-602(a), and (2) even in those categories, the matter could be presented to a panel -- the Chief Judge is not required to act alone, but is merely permitted to do so.

   Rule 8-602(c)(1) provides[***23] that, when an order of dismissal was entered by the Chief Judge alone, pursuant to Rule 8-602(b), "the order dismissing the appeal, on motion filed within ten days after entry of the order, shall be reviewed by the number of judges of the Court required by law to decide an appeal." (Emphasis added). It goes on to state:

   "The order dismissing the appeal (A) shall be rescinded if a majority of those judges decides that the motion to dismiss should not have been granted, (B) may be rescinded if the appeal was dismissed pursuant to subsection (4), (5), or (7) of section (a) of this Rule, and the Court is satisfied that the [*318]failure to file a report, transmit the record, or file a brief or record extract within the time prescribed by these Rules was unavoidable because of sickness or other sufficient cause, and (C) may be rescinded if the appeal was dismissed pursuant to subsection (a)(8) of this Rule and the Court is satisfied that a brief, appendix, or record extract complying with the Rules will be filed within a time prescribed by the Court."

   Paragraph (c)(2) of the Rule deals with an order of dismissal entered by a panel. It provides that, if an appeal is dismissed by the ruling[***24] of the Court or a panel pursuant to section (a)(4), (6), (8), or (9) of the Rule, "the order dismissing the appeal, on motion filed within ten days after entry of the order, may be rescinded if the Court is satisfied that a report, record, brief, appendix, or record extract complying with the Rules will be filed or the proper party will be substituted within a time to be prescribed by the Court." (Emphasis added).

   Rule 8-602(c) contains two other pertinent provisions. Section (c)(3) provides that, if an order of dismissal is rescinded, the case shall be reinstated on the docket on the terms prescribed by the Court. Section (c)(4) establishes the exclusivity of the reconsideration process specified in the Rule. It states that, "when an order dismissing an appeal is reviewed by the Court on motion filed pursuant to this section, the moving party may not obtain further reconsideration of the dismissal pursuant to Rule 8-605." n7

n7 Rule 8-605 has a conforming provision. Section (a) of that Rule provides that "except as otherwise provided in Rule 8-602(c), a party may file pursuant to this Rule a motion for reconsideration of a decision by the Court that disposes of the appeal."

[***25]

   This special treatment of reconsideration of orders of dismissal entered under Rule 8-602 is purposeful. The kinds of issues that may arise from them, all relating to preliminary matters relevant to perfecting the appeal, rather than to the merits of the appeal, should be resolved preliminarily. If the appeal is to be dismissed on any of those grounds, it should be [*319] removed from the docket early in order (1) that the appeal not remain in the mix of cases assigned for argument, and (2) that the argument panel not have to plow through briefs and do research on the merits, only to find that there is a procedural impediment to their reaching those issues. When there is a surviving cross-appeal, as there was here, early resolution of a procedural problem under Rule 8-602(a) permits the parties to focus [**34] their argument and the court to focus its attention on the issues remaining for resolution. The requirement that a motion to reconsider an order of dismissal entered under Rule 8-602 be filed within 10 days, whether the order of dismissal was entered by the Chief Judge or a panel, is critical to the achievement of these goals.

   In assuming the power to reinstate BDF's appeal eight months[***26] after the appeal was dismissed by the Chief Judge and two months after it erroneously decided the appeal, all on its own initiative and without any motion by BDF for that relief, the argument panel concluded (1) that the ten-day requirement for filing a motion to reconsider under Rule 8-602(c) applied only if the order of dismissal was entered by the Chief Judge on a motion to dismiss, rather than on his or her own initiative, and (2) that Raynor was not prejudiced by its belated action. Both of those conclusions were wrong.

   It is true that Rule 8-602(b) speaks of the authority of the Chief Judge to rule "on a motion to dismiss" pursuant to the six enumerated subsections of Rule 8-602(b), but, as we have said, by long-standing law and established practice in the Court of Special Appeals, that authority includes the power of the Chief Judge to act for the court on its own initiative. The reconsideration provision in Rule 8-602(c) thus necessarily applies to all orders of dismissal entered by the Chief Judge on behalf of the court. To conclude otherwise would be to invite terrible uncertainty as to the real and final status of appeals purportedly dismissed by the Chief Judge on[***27] his or her own initiative, especially in the case of cross-appeals, for, if the provisions of Rule 8-602(c) did not apply, Rule 8-605 likely would.

   [*320]

   The argument panel's conclusion that no prejudice from its action was suffered by Raynor is equally flawed. In reaching that conclusion, the court focused only on whether Raynor was prejudiced by the late filing of BDF's brief, but that is not the issue. Once BDF's appeal had been dismissed, Raynor reasonably could believe that it had nothing to lose by pursuing its own appeal. The worst that could happen would be for the court to affirm the $3,122 judgment, in which event it would have to pay the costs of the appeal. If it had known that, in considering its own appeal, the appellate court might decide to reinstate BDF's appeal and award BDF $16, 345 -- $10,000 more than it asked for -- Raynor may, and probably would, have dismissed its appeal and terminated the appellate litigation, concluding that the risk of losing another $13,000 outweighed the prospect of gaining a $3,122 victory. Raynor clearly was prejudiced by being led to believe that BDF's request for affirmative relief was no longer before the court and then being ambushed, [***28] on its own motion for reconsideration, after the case was decided.

   The dismissal of BDF's appeal in September, 1998 effectively withdrew any authority of the appellate court to provide affirmative relief to BDF. The only remedy under the Rules available to BDF at that point -- a fully effective remedy if it could make the case -- was to file a motion for reconsideration under Rule 8-602(c) within 10 days. When it failed to do so, the court's ability under the Rules to provide affirmative relief ended.

   JUDGMENT OF COURT OF SPECIAL APPEALS REVERSED; CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO AFFIRM JUDGMENT OF CIRCUIT COURT FOR ANNE ARUNDEL COUNTY; COSTS IN COURT OF SPECIAL APPEALS TO BE PAID BY PETITIONER, RAYNOR; COSTS IN THIS COURT TO BE PAID BY RESPONDENT, BDF. 

CITY OF ANNAPOLIS v. MAREEN WATERMAN et ux. 
No. 37, September Term, 1999
 
COURT OF APPEALS OF MARYLAND
 
357 Md. 484; 745 A.2d 1000; 2000 Md. LEXIS 1

 January  7, 2000, Filed

   SUBSEQUENT HISTORY: [***1]

   As Corrected January 11, 2000. As Corrected January 18, 2000.

PRIOR HISTORY:  Appeal from the Circuit Court for  Anne Arundel  County pursuant to certiorari to the Court of Special Appeals. Case # C-1996-30475.OC. Michael E. Loney, JUDGE.

DISPOSITION: JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY REVERSED; COSTS TO BE PAID BY APPELLEES. 
CASE SUMMARY 

PROCEDURAL POSTURE:  Appellant city sought review of a decision of the Circuit Court for Anne Arundel County (Maryland), finding that conditions imposed on appellee's property constituted an impermissible taking.

OVERVIEW:  Appellees filed suit alleging that certain conditions contained in the subdivision approval, which was applicable to their property, constituted an unconstitutional taking of that property. The trial court found that appellant had impermissibly conditioned approval of appellee's subdivision proposal. On appeal, the issues decided were whether the lower court erred in finding two conditions constituted a "dedication," whether the "non-segmentation" principle should have been applied in the takings analysis, and whether a taking had occurred, notwithstanding that appellees had not lost all economically viable use of their property. The court held that the trial court erred when it used an exactions analysis to reverse appellant city council's decision with respect to the conditions imposed. Thus, because no unconstitutional taking of appellees' property occurred, the court reversed.

OUTCOME:  Judgment reversed because the lower court erred when it applied an exactions analysis to property dedicated by appellees.

CORE TERMS:  dedication, exaction, recreational, regulation, ordinance, space, developer, viable, phase, economic use, plat, zoning, planning, unconstitutional taking, site, open space, proportionality, parcel, rough, street, property owner, traffic, billboard, easement, residents, nexus, coal, public purpose, residential, common-law

CORE CONCEPTS -  

Real Property Law: Zoning & Land Use: Land Use Planning
See Md. Ann. Code art. 66B, § 4.01(a)(1) (1998).

Governments: Local Governments: Administrative Boards
A planning commission shall prepare regulations governing the subdivision of land within its jurisdiction. Those regulations may provide for the adequate and convenient placement of open spaces for traffic, recreation, light and air and the avoidance of congestion of population. Planning commissions may agree with applicants upon use, height, area or bulk requirements or restrictions which are designed to promote the purposes of the zoning ordinance of the jurisdiction.

Governments: Local Governments: Ordinances & Regulations
Annapolis, Md., Code § 21.02.010 (1996) provides for the general purposes of the planning and zoning processes, which include: to protect the public health, safety, general welfare of the community and to promote the public comfort, convenience and prosperity; to ensure the integrity of, and help implement, the comprehensive master plan; to foster a more rational pattern of relationships between residential, business, commercial and manufacturing uses for the mutual benefit of all; to provide adequate standards of light, air and open space; to prevent the overcrowding of land and buildings and thereby to ensure proper living and working conditions and to prevent blight and slums.

Real Property Law: Zoning & Land Use: Land Use Planning
Governments: Local Governments: Administrative Boards
It is well settled that conditions may be imposed by a municipal planning commission in connection with the approval of a proposed subdivision map or plan.

Real Property Law: Zoning & Land Use: Zoning Laws
The imposition of reasonable regulations as a condition precedent to the approval of subdivision of lands and the recording of plats thereof does not violate any constitutional provisions respecting uniformity of taxation and is not tantamount to the taking of private property for public use without just compensation.

Governments: Local Governments: Property
Common law dedication involves an offer to dedicate and a corresponding acceptance by a local government. Under common law dedication a developer is estopped from later questioning the acceptance. In subdivision regulation dedication, however, questions of legislative authority and constitutionality arise.

Governments: Local Governments: Property
Generally, common-law dedications are voluntary offers to dedicate land to public use, and the subsequent acceptance, in an appropriate fashion, by a public entity. Common-law dedications are not mandated by statute. The offers are generally, although not exclusively, made by showing roads, parks or similar facilities on plats without any limitations on dedication, and the recording of those plats. Generally, acceptance is made by an express recorded document or by the appropriate entity assuming control and maintenance of the property offered. With acceptance, common-law dedication is complete.

Real Property Law: Zoning & Land Use: Zoning Laws
In Maryland it is established that in order to obtain a "vested right" in the existing zoning use which will be constitutionally protected against a subsequent change in the zoning ordinance prohibiting or limiting that use, the owner must obtain a permit or occupancy certificate where required by the applicable ordinance and must proceed under that permit or certificate to exercise it on the land involved so that the neighborhood may be advised that the land is being devoted to that use.

Constitutional Law: Procedural Due Process: Eminent Domain Proceedings
"Taking" jurisprudence does not divide a single parcel into discrete segments and attempt to determine whether rights in a particular segment have been entirely abrogated. In deciding whether a particular governmental action has effected a taking, the court focuses rather both on the character of the action and on the nature and extent of the interference with rights in the parcel as a whole.

COUNSEL: ARGUED BY Paul Garvey Goetzke, City Attorney, of Annapolis, Maryland. ARGUED BY Jonathan P. Kagan (Rignal W. Baldwin, Jr., Brassel & Baldwin, P.A., on brief) all of Annapolis, MD., FOR PETITIONER/CROSS-RESPONDENT.
 
ARGUED BY William M. Simmons of Annapolis, Maryland, FOR RESPONDENTS/CROSS-PETITIONERS.

JUDGES: ARGUED BEFORE Bell, C.J., Eldridge, Rodowsky, Raker, Wilner, Cathell, and Harrell, JJ. Opinion by Cathell, J.

OPINIONBY: CATHELL

OPINION: [*486] [**1001]

   Opinion by Cathell, J.

   Appellant, the City of Annapolis (City), appeals from a decision of the Circuit Court for Anne Arundel County, which principally involves the City's subdivision approval process as it applies to the three-phase, twenty-year plus processing of a residential development proposed by appellees, Mareen D. Waterman and Marian Waterman. Appellees filed suit against the City alleging that certain conditions contained in the subdivision approval applicable to their property constituted an unconstitutional taking of that property. Appellees' complaint alleged in relevant part:

   15. . . . The City Council's decision to take all of Lot 1 results in an additional taking of 3,163 square feet over and above the 2,375 square feet required by Resolution R-20-76.

   16. There exists no essential nexus between a legitimate state interest and the subdivision condition imposed by the City[***2] Council requiring Lot 1 of Section 3 to be dedicated entirely as a recreational space. . . .
 
   17. In requiring the dedication of this recreational space, the City Council has denied [appellees] all economically viable use of Lot 1. [Emphasis added.]
 
As relevant to this appeal, the claim before the circuit court was a claim only that the conditions imposed on Lot 1 constituted an unconstitutional taking of Lot 1. The trial court accordingly dealt with an alleged taking only of that lot. The circuit court found [*487] that the Annapolis City Council impermissibly conditioned approval of the Plaintiffs' subdivision proposal where it ordered that Lot One of the Section III Proposal shall be dedicated as recreational space pursuant to Resolution R-20-76 and where it ordered that Lot One of the Section III Proposal shall not be approved for use as a residential dwelling lot.

   Appellant presents the following issues for our consideration:
 
I. Whether the lower court erred in finding that conditions one and two of City of Annapolis Resolution No. R-47-95 constituted a "dedication" of a portion of appellees' property to the City as a public "mini-park."
 
II. Whether the lower[***3] court erred in failing to apply the "nonsegmentation" principle in its takings analysis by focusing only on proposed Lot 1 (the corner piece of the Parkway property) and not on the entire Parkway property. n1 

n1 The "nonsegmentation" principle, with its attendant "denominator" parcel principle, arose primarily out of Keystone Bituminous Coal Ass'n v. DeBenedictis , 480 U.S. 470, 107 S. Ct. 1232, 94 L. Ed. 2d 472 (1987). The principle had been mentioned twenty-five years earlier in the "nuisance" regulation case of Goldblatt v. Town of Hempstead, 369 U.S. 590, 596, 82 S. Ct. 987, 991, 8 L. Ed. 2d 130 (1962).

 
III. Whether the lower court erred in finding that conditions one and two of City of Annapolis Resolution No. R-47-95 constituted an unconstitutional taking despite the fact that appellees had not lost all economically viable use of their property.
 
IV. Whether the lower court erred in finding that conditions one and two of City of Annapolis Resolution No. R-47-95 failed[***4] to meet the Supreme Court's "rough proportionality test," and thus, constituted an unconstitutional taking.
 
V. Whether the lower court erred in awarding damages dating back to May 21, 1992 . . . when the cause of [*488] action did not accrue until the [**1002] passage of Resolution No. R-47-95 on December ll, 1995.
 
VI. Whether the lower court erred in calculating damages on the value of the entire Section III of the Parkway property (valued at $328,000), instead of on the value of Lot One (valued at $40,000) that was the only portion affected by conditions one and two of City of Annapolis Resolution No. R-47-95.

   Appellees/Cross-Appellants pose several questions that appear to be counter arguments to appellant's questions, rather than separate questions. We shall treat them as arguments and address them, as necessary, in our discussion of the questions presented by appellant. Moreover, because we answer appellant's first three questions in the affirmative, and accordingly reverse the erroneous decision of the trial court, it is unnecessary to address appellant's remaining questions, or to address any of appellees' questions separately.
 
I. Facts

   Appellees purchased a three-acre[***5] triangular tract of land in Annapolis in the mid-1970's for the purpose of developing it. They proposed to develop the land, called "Parkway," in three phases. The last phase was designated as "Lot 4" during the second phase of development. While seeking subdivision approval of the first phase, appellees agreed to provide, in the subsequent phases of the subdivision, at least 2,375 square feet of recreational space for the use of the first-phase residents. Thus, the parties agreed to defer creating the recreational space needed for the first-phase residents until a later date. The language of the 1976 resolution stated in pertinent part "that the developer agrees to provide 2375 square feet of recreational space in an appropriate location as part of the future development of his remaining adjacent land in addition to any recreational area required by that development." City of Annapolis Resolution R-20-76 (Apr. 12, 1976) (emphasis added). In other words, the recreational area now at issue was required as a condition for approval of phase one (or Section I) in 1976. In return for not being required to [*489] provide, at that time, recreational area within Section I for the use of Section [***6] I residents, appellees agreed to provide it in a future phase of development, in addition to providing recreational space for the needs of the residents of those future phases.

   No timely challenge was made to the 1976 imposition of the future recreational area requirement. The parties to the agreement left the exact location of the agreed upon recreational space open for future approval. To some extent, the time of determining the specific location of the recreational space was dependent upon the development phase in which appellees chose to perform their part of the agreement. They put off creating the recreational space required for Section I until seeking subdivision approval for the last phase, Section III.

   The 1976 agreement was incorporated as a condition into Resolution R-20-76 approving the first-phase subdivision. The following year, phase two was approved and developed. It did not contain the recreational space that appellees had agreed to provide for the first-phase residents. At that time, the remaining two contiguous triangular parcels were combined as Lot 4.

   The third, and final, phase was submitted for subdivision approval in 1990. In this phase, appellees proposed[***7] to subdivide the final .87-acre parcel, Lot 4, of the development into five new lots. The five new lots were to be created from two contiguous triangular parcels that had been identified during the second phase of development as Lot 4. Four parcels of the final-phase subdivision were designated to be developed as eight duplex units. These four parcels were contained on one of the triangular parcels within Lot 4. The other triangular part of the original Lot 4 was redesignated on the proposed third-phase subdivision plat as new "Lot 1." The proposed [**1003] new Lot 1 was located on the corner of Tyler Avenue and Hilltop Lane and consisted of 5,538 square feet. The proposed third-phase subdivision indicated that new Lot 1 would be used for a single-family residence. [*490]

   The proposed third-phase subdivision also designated a 4,598 square foot "recreational easement" running behind and across the rear of the eight duplex units. It was appellees' contention that this proposed 4,598 square foot recreational area would satisfy the open space and recreational condition in the 1976 resolution that approved the first phase of the development.

   The Department of Planning and Zoning (DPZ) recommended denial[***8] of appellees' third-phase subdivision request on the basis of alleged density and traffic problems. The Planning and Zoning Commission (Commission) agreed and recommended a reduction in the number of units, and also found that the third phase, as proposed, violated the recreational area condition incorporated in Resolution R-20-76, and further violated City subdivision regulations. Appellees appealed to the City Board of Appeals, which upheld the Commission's findings.

   Appellees sought judicial review in the Circuit Court for Anne Arundel County. The circuit court, in that judicial review, reversed the decision of the Board of Appeals. The trial judge, Judge Bruce C. Williams, found:

   When the City Council approved the initial development of the Parkway property, its approval was conditioned on the inclusion of 2,375 square feet of recreational space on the property. [Appellees] propose[] to dedicate an easement across the rear portion of the duplex lots of the proposed subdivision to satisfy the recreational requirement. The Board of Appeals below held that such an easement would deprive . . . each lot owner [the eight duplex owners] of his exclusive use of the property [***9] dedicated, n2 reducing the size of their lot below the requisite 3600 sq. ft. minimum.

n2 The lower courts throughout this process have misconstrued the 1976 agreement as a "dedication." As we explain, infra, it was not a dedication but a condition or, at most, a reservation of land, for future use as recreational space by the first-phase residents.

   This Court finds that the Board of Appeals erred in finding that the lot size of each respective lot owner would [*491] be reduced by the provision of an open space easement on their lot. The Annapolis City Code contemplates figuring recreation areas into, rather than out of, minimum lot size area calculations. . . . Section 21.74.050 D states, the area of land set aside for common open space or recreational use may be included in determining the number of dwelling units permitted. . . . Nothing in the Annapolis City Code authorizes such determinations by the Commission.

   . . . .
 
   The Annapolis Comprehensive Plan does not support the exclusion of easement dedicated[***10] space in lot size calculations. . . .

   . . . With regard to residential lot configurations, the plan encourages the "establishment of block homeowners' associations, with pooling of portions of long back yards as common open space or garden areas, owned and maintained by the associations." An easement would accomplish this goal. The City Council should be afforded the opportunity to determine whether an easement would be appropriate.

   . . . .

   This Court finds that in light of changes in the Annapolis City's zoning regulations since the passage of R-22-76, the issue of recreational space needs to be resolved by the Annapolis City Council and not the Planning and Zoning Commission. . . . The Commission's denial cannot be supported by substantial evidence or its statutory authority.

   . . . .

   [**1004] ORDERED, that the decision of the Board of Appeals is hereby REVERSED and that the Waterman subdivision plat be approved by the Planning and Zoning Commission to allow this case to proceed to the Annapolis City Council in accordance with the statutory scheme established by the City of Annapolis and the State of Maryland. [Third emphasis in original; all others added.] [Citations[***11] omitted.]

   After the Board of Appeals affirmed the Commission's decision, but before Judge Williams had reversed the Board of [*492] Appeals, the City enacted Ordinance O-2-93, which required site design review prior to subdivision approval. That site design review was to be done by the DPZ. Accordingly, after Judge Williams' reversal of the Board, appellees' subdivision application was resubmitted to the DPZ for site design review. n3

n3 Appellees argue that this submission of the subdivision plan to the DPZ violated Judge Williams' order. There is no indication in the record that any effort was made at that time to ask Judge Williams to clarify his order in that respect. Judge Williams' order required a forwarding of the subdivision application to the City Council "in accordance with the statutory scheme established by the City of Annapolis . . . ." At the time of Judge Williams' order, the statutory scheme then in effect required the plans to be submitted to the DPZ for additional review pursuant to Ordinance O-29-3. The City had legislated faster than the parties had litigated. Moreover, the record contains a July 21, 1995, letter from appellees that appears to accede to the subsequent procedure. No estoppel issues are raised by appellees.

[***12]

   Subsequently, pursuant to the site design review required by the newly enacted ordinance, the DPZ and the Commission again expressed their reservations about density and traffic problems in their submission to the City Council. The DPZ and the Commission recommended approval of the third-phase subdivision and recommended three conditions. One of the conditions was that the single-family dwelling proposed for new Lot l be relocated. In approving the subdivision, the City Council agreed with the recommendation and imposed a limitation that no dwelling be permitted on new Lot 1. Additionally, they imposed a separate condition that the 2,375 square feet of recreational area required by the conditions for approval of the first-phase subdivision, be located on new Lot 1. See City of Annapolis Resolution No. R-47-95 (Dec. 11, 1995).

   Appellees responded by filing suit in the circuit court for damages only, alleging that the conditions attached to the approval created an unconstitutional taking of Lot 1. The circuit court found in favor of appellees and awarded damages. In the liability phase, the court's opinion initially stated:

   The Plaintiffs allege that there has been an unconstitutional[***13] taking of their property to the extent that they cannot [*493] freely develop Lot One of the Proposed Section III Subdivision. Nor can the Plaintiffs exclude others from using Lot One . . . .

   . . . The use of the Plaintiffs' property [Lot One] as a mini-park would deprive the Plaintiffs of their right to exclude others. . . .

   . . . It has long been held that "a land use regulation does not effect a taking if it . . . does not 'deny an owner of all economically viable use of his land." . . .

   . . . .

   . . . The Court finds that the City's actions in applying the [recreational area and no dwelling] conditions . . . are proper in light of the recommendations made to it by the various sources discussed above. . . . The actions taken by the City created a nexus whereby the interests of the City, most notably traffic concerns, were addressed by the imposed conditions and were a proper exercise of the City's police powers . . . .

   . . . .

   . . . Rather, the condition imposed upon Lot One is an impermissible taking because it singles out only one small portion of the entire Section III Proposal [**1005] where there was evidence before the Council which suggested that the entire Section III Proposal[***14] would adversely affect traffic at that location.
 
The circuit court went on to find an unconstitutional taking by focusing on Lot One:
 
It appears to the Court that the dedication of Lot One as recreational space for use as a mini-park would prove to be at least as hazardous to traffic patterns . . . as would a single family home.

   . . . .
 
   . . . The Court finds that [the] City Council's condition ordering that Lot One of the Section III Proposal be dedicated as recreational space to serve as a mini-park is not reasonably related to the needs that would be created by the subdivision . . . . [*494]

   . . . .

   . . . The Court finds that the actions . . . represent an impermissible taking . . . because the exactions made through the two conditions are not reasonably related to the impact [of] the proposed subdivision . . . . [Emphasis added.]
 
The City filed a timely appeal to the Court of Special Appeals and we granted a writ of certiorari prior to that court's review of the matter. We reverse the circuit court.
 
II. Discussion and Analysis

   Maryland Code (1957, 1998 Repl. Vol.), Article 66B, section 4.0l(a)(1), contained within the subtitle "General Development[***15] Regulations and Zoning," provides in relevant part that the policy of the State is to empower "municipal corporations . . . to regulate and restrict . . . the percentage of lot that may be occupied, . . . the size of yards, courts and other open spaces, . . . and use of . . . land for . . . residence or other purposes." n4 Within the subtitle "Subdivision Control," section 5.03(a) provides in relevant part that "the planning commission shall prepare regulations governing the subdivision of land within [*495] its jurisdiction. Those regulations may provide for . . . the adequate and convenient placement of . . . open spaces for traffic, . . . recreation, light and air and the avoidance of congestion of population . . . ." Section 5.04 provides that planning commissions may "agree with applicants upon use, height, area or bulk requirements or restrictions which are designed to promote the purposes of the zoning ordinance of the jurisdiction." The general purposes of the planning and zoning processes in the City are found in section 21.02.010 of the City of Annapolis Code (1996). They include:

   A. To protect the public health, safety, general welfare of the community and to promote the public[***16] comfort, convenience and prosperity;

   B. To ensure the integrity of, and help implement, the comprehensive master plan;

   C. To foster a more rational pattern of relationships between residential, business, commercial and manufacturing uses for the mutual benefit of all;

   . . . .

   [**1006] H. To provide adequate standards of light, air and open space;

   I. To prevent the overcrowding of land and buildings and thereby to ensure proper living and working conditions and to prevent blight and slums . . . .

 n4 In Coffey v. Maryland-National Capital Park & Planning Commission, 293 Md. 24, 27-28, 30, 441 A.2d 1041, 1042, 1044 (1982), we said, quoting in part from Board of County Commissioners v. Gaster, 285 Md. 233, 246, 401 A.2d 666, 672-73 (1979):

   "As we noted . . . some confusion exists relative to the terms planning and zoning, which are not synonymous. Zoning is concerned with the use of property but planning is broader in its concept. . . .

   "There are three integral parts of adequate land planning, the master plan, zoning, and subdivision regulations. . . . 'Zoning ordinances are not calculated to protect the community from the financial loss which may result from imperfect development. Some of these purposes are sought through the imposition of subdivision controls.' . . .

   . . . .

   . . . If planning boards had no alternative but to rubber-stamp their approval on every subdivision plat which conformed with the zoning ordinance, there would be little or no reason for their existence. While planning and zoning complement each other and serve certain common objectives, each represents a separate municipal function and neither is a mere rubber-stamp for the other. [Citations omitted.]

[***17]

   In essence, planning commissions are authorized, presuming the respective jurisdictions have enacted proper subdivision controls, to review the plans for proposed subdivisions for compliance with the subdivision requirements (and compliance with separate zoning requirements). In that review process, in addition to insuring compliance, planning commissions attempt to encourage developers to accept design features deemed appropriate for each respective subdivision. During that process, appropriate conditions may be incorporated into a subdivision approval.

   Albeit sometimes in the context of zoning ordinances, we have previously discussed the need and appropriateness of such governmental controls. We noted in Board of County [*496] Commissioners v. Gaster, 285 Md. 233, 248-49, 401 A.2d 666, 674 (1979):
 
How can a county effectively plan for capital expenditures for roads, schools, sewers, and water facilities if, without regard to preexisting plans, a developer, as proposed here, might place a settlement of 1,200 or more people in the middle of a previously undeveloped area, a settlement which would overtax school facilities and which would necessitate improvement of[***18] a road whose reconstruction had not been contemplated before 1990? Planning would be futile in such situations.

   In those instances the developer, not the constituted authority of the county, is in control of planning for the future of the county. . . .

    . . . In the case at bar we see no basic conflict between the zoning regulations and the subdivision regulations. If there were a conflict, the subdivision ordinance in this instance provides that the more restrictive provision shall prevail. Moreover, Art. 66B, § 3.08 specifies that once a master plan has been adopted by the local legislative body "no street . . . shall be constructed or authorized . . . until the location, character, and extent of such development shall have been submitted to and approved by the commission as consistent with the plan . . . ." If this proposed subdivision were approved, the streets contemplated in it would be spewing traffic out onto a county road "which has poor vertical and horizontal alignment, poor sight distances, and narrow width [, a] road . . . not programmed for reconstruction before 1990." Given the provisions of § 3.08, this in itself was a sufficient basis for the disapproval of[***19] the subdivision plat by the commission.

   . . . The county here has preordained by its subdivision regulations that one who seeks to cut up a larger tract by creating a subdivision must not disrupt the master plan and that the subdivision must be compatible with that master plan. Likewise, many zoning ordinances specify relative to special exceptions that they shall be granted only if they are [*497] compatible with and will not disrupt the master plan. n5 [Second alteration in original.]

n5 Judge Marvin H. Smith's opinion for the Court in Gaster provides an extensive history of planning, zoning and subdivision matters in Maryland.

   We outlined some basic principles of governmental regulatory authority in respect to property in Stevens v. City of Salisbury, 240 Md. 556, 562-63, 567, 214 A.2d 775, 778, 781 (1965):
 
After the close of the Revolutionary War, the ownership of property in this country has frequently been referred to as "allodial" in nature or that the property is held by "allodial[***20] tenure." In its strict sense, "allodium" means land owned absolutely, and not subject to any rent, service, or other tenurial right of an overlord; however, it has been, and is, uniformly recognized throughout this [**1007] country that the ownership of property is subject to the rights of government to tax the property, to regulate reasonably its use and enjoyment under the police power of the States, and to take the same, upon payment of the value thereof, when needed for a public purpose.

   . . . .

   It is an accurate statement to say that every restriction upon the use and enjoyment of property is a "taking" to the extent of such restriction; but every "taking" is not a "taking" in a constitutional sense for which compensation need be paid.

   Appellant has enacted subdivision controls pursuant to the authority granted it by Article 66B. Its subdivision regulations are found in Title 20 of the City Code. They provide, in relevant part, that "the planning commission shall not approve a preliminary plat absent a specific finding that the plat meets the provisions of Chapter 21.98, Site Design Plan Review." City Code, § 20.24.170. Chapter 21.98 has a general intent clause, which provides: [*498]
 
[***21] 21.98.010 Intent.

   The purpose of this chapter is to ensure that property is developed with sound planning and design principles while allowing flexibility of design. The intent is to ensure reasonable consideration of, among other things, . . . orderly development, and the relationship between the built and natural environments.
 
Section 21.98.050(Q) also provides that site design plan review shall encourage open space: "Areas of usable open space should be provided on site in order to afford visual relief." n6 The duties of the DPZ are stated in section 21.98.100, including that it shall review, approve, approve subject to modifications or disapprove . . . the preliminary site design plan . . . .

   . . . In reaching its decision, the [DPZ] shall determine if:

   A. The site design plan meets all of the requirements of the zone in which it is located;

   B. The locations of the buildings and structures, open spaces, landscaping, and pedestrian and vehicular circulation systems are adequate, safe, and efficient;

   . . . .

   The [DPZ] shall not approve the site design plan if it finds that the development would not achieve a maximum of compatibility, safety, efficiency, and attractiveness; [***22] and the fact that a site design plan complies with all of the stated . . . regulations . . . shall not, be deemed by itself to create a presumption that the proposed site plan is compatible . . . and, in itself, shall not be sufficient to require approval . . . .

   To better understand the functions and public purposes of subdivision controls, it is important to note further that: [*499]

   Today, the primary purpose of subdivision regulation is integration of a new development into an existing community. . . .

   Subdivision regulation is important for a variety of reasons. First, it enables a community to ensure (insofar as is possible) that a new development will "fit in" with the existing community character, that the existing community will be able to provide needed services . . ., and that the new development will be a safe and healthy place for its citizens to live. Second, in a broader sense, subdivision controls give local governments the opportunity to attempt to ensure the success of a new development. . . .

   . . . .

   . . . Common [subdivision] provisions include the regulation of . . . open space for recreation, light, and air . . . .
 
[**1008] 13 Richard R. Powell, Powell on Real [***23]  Property, PP 873[1][a][i], 873[2][d][i], at 79D-8, 79D-30 (MB ed. 1998) (footnote omitted).

n6 Neither the subdivision ordinance nor the site design ordinance contains a formula or methodology for computing open space or recreational area. The validity of these ordinances were not challenged on that basis.

   It is well settled that conditions may be imposed by a municipal planning commission in connection with the approval of a proposed subdivision map or plan.

   The subdivision of land has a definite economic impact upon the municipality and hence the regulation of subdivision activities has been sustained as a means by which the interests of the public and the general taxpayer may be safeguarded and protected. . . .

   The imposition of reasonable regulations as a condition precedent to the approval of the subdivision of lands and the recording of plats thereof has been held not to violate any constitutional provisions respecting uniformity of taxation and not tantamount to the taking of private property[***24] for public use without just compensation. In Krieger v. Planning Commission of Howard County, [224 Md. 320,] 167 A.2d 885 ([]1961), the Court of Appeals of Maryland held that requirements of subdividers that impose a limitation of access to highways did not constitute a taking of land in the constitutional sense. [*500]
 
3 E. C. Yokley, Zoning Law and Practice, § 17-8, at 71-74 (4th ed. 1979) (footnotes omitted). "A subdivision plat may be disapproved for any number of reasons. It may be disapproved where it fails to comply with subdivision legal requirements, applicable zoning laws, or reasonable conditions imposed on the development." 8 Eugene McQuillin, The Law of Municipal Corporations, § 25.118.30, at 443 (3d ed. 1991) (footnotes omitted).

   Numerous courts have approved the imposition of reasonable conditions in the subdivision approval process. We said in discussing access conditions in Krieger , 224 Md. at 323, 167 A.2d at 886:
 
If [the planning commission] could properly [adopt subdivision regulations], it was not arbitrary to enforce them by denying approval of a plan which did not conform. In the absence of constitutional[***25] objection the power of a municipal corporation to impose reasonable conditions upon the issuance of a permit can hardly be doubted.

   In Prudential Trust Co. v. City of Laramie, 492 P.2d 971, 973 (Wyo. 1972), the primary question for the Wyoming Supreme Court was "how much discretion does the city have in exercising its right to approve or reject a proffered plat[?]" The court opined:

   Our view is that the right and duty of the city to approve a plat necessarily carries with it the right to set reasonable and just prerequisites and requirements for approval of the plat, and in particular in the area of bringing the plat into conformity with other areas with respect to lots, blocks, streets, and the like.
 
Id. at 974.

   The California Supreme Court in Ayres v. City Council, 34 Cal. 2d 31, 37-38, 207 P.2d 1, 5 (1949), stated in respect to exactions and conditions that:
 
Where as here no specific restriction or limitation on the city's power is contained in the Charter, and none forbidding the particular conditions . . . it is proper to conclude that conditions are lawful which are not inconsistent with [*501] the Map Act and the[***26] ordinances and are reasonably required by the subdivision type and use as related to the character of local and neighborhood planning and traffic conditions.

   . . . .

   With regard to condition 2, that an additional ten feet be reserved for a planting strip . . . the creation of the subdivision necessitated the restricted use to confine ingress and egress to and from the lots away from [the] Boulevard [and] to screen the lot owners from the traffic noises, fumes and views of the fast-moving traffic . . . .

   [**1009] Other types of conditions have been upheld as well, including recreational open space conditions. See Coffey v. Maryland-Nat'l Capital Park & Planning Comm'n, 293 Md. 24, 441 A.2d 1041 (1982) (ordinance requiring compliance with master plan); Gaster, 285 Md. 233, 401 A.2d 666 (relieving traffic and population density); see also Pima County v. Arizona Title Ins. & Trust Co., 115 Ariz. 344, 565 P.2d 524 (Ariz. Ct. App. 1977) (paving of all interior streets in the subdivision); Ayres, 34 Cal. 2d 31, 207 P.2d 1 (buffer strip); Timber Trails Corp. v. Planning & Zoning Comm'n, 222 Conn. 380, 389-93, 610 A.2d 620, 625-27 (1992)[***27] (installing state-approved water service and modifying lot size); Aunt Hack Ridge Estates, Inc. v. Planning Comm'n, 160 Conn. 109, 111, 273 A.2d 880, 882 (1970) (local ordinance authorizing park and open space requirements, which "shall in all cases be available and accessible to all residents of the subdivision."); Garvin v. Baker, 59 So. 2d 360 (Fla. 1952) (condition requiring on-site street and sidewalk standards); City Nat'l Bank v. City of Coral Springs, 475 So. 2d 984 (Fla. Dist. Ct. App. 1985) (ten-foot buffer strips, street signs and widening of street); Oakes Constr. Co. v. City of Iowa City, 304 N.W.2d 797 (Iowa 1982); n7 [*502] United Reis Homes, Inc. v. Planning Bd., 359 Mass. 621, 270 N.E.2d 402 (1971) (construction of drainage facilities); Sansoucy v. Planning Bd., 355 Mass. 647, 246 N.E.2d 811 (1969) (installation of underground utility lines); Ellen M. Gifford Sheltering Home Corp. v. Board of Appeals, 349 Mass. 292, 208 N.E.2d 207 (1965) (upholding condition of not more than one dwelling on each lot); River Birch Assocs. v. City of Raleigh, 326 N.C. 100, 388 S.E.2d 538 (1990)[***28] (conveyance of open space to the owner's subdivision); Clark v. City of Albany, 137 Ore. App. 293, 904 P.2d 185 (1995) (on-site traffic-free area and storm drain facilities), review denied, 322 Ore. 644, 912 P.2d 375 (1996); Crownhill Homes, Inc. v. City of San Antonio, 433 S.W.2d 448 (Tex. App. 1968, writ ref'd n.r.e.) (on-site water mains); In re Denio, 158 Vt. 230, 240-241, 608 A.2d 1166, 1172-73 (1992) (aesthetic open space requirements); Prudential Trust Co., 492 P.2d 971 (reconfiguring streets to line up with off-site public streets).

n7 In Oakes Constr., 304 N.W.2d at 806, the Iowa Supreme Court described the two approaches to the imposition of subdivision conditions, the strict approach "whereby a council must be able to point to an explicit provision on which it bases disapproval of a plat," and the liberal approach, which "takes account of the likelihood that not every conceivable flaw . . . can be anticipated by specific language in ordinances and statutes." The court adopted the liberal approach. It then held that "the council could consider the subject of access" and upheld the subdivision disapproval.  Id. at 807.

[***29]

   In City of Carbondale v. Brewster, 78 Ill. 2d 111, 398 N.E.2d 829, 34 Ill. Dec. 838 (1979), appeal dismissed, 446 U.S. 931, 100 S. Ct. 2145, 64 L. Ed. 2d 783 (1980), the Illinois Supreme Court noted that "a residential land subdivider may properly be required, as a condition to approval of the plat, to provide curb and gutter and suitable storm-water drainage facilities." Id. at 115, 398 N.E.2d at 831. That same court, in Petterson v. City of Naperville, 9 Ill. 2d 233, 137 N.E.2d 371 (1956), also upheld a subdivision approval subject to the condition that the developer provide curbs, gutters and drainage facilities within the subdivision. In Petterson, the court stated "the privilege of the individual to use his property as he pleases is subject always to a legitimate exercise of the police power under which new burdens may be imposed upon property and new restrictions placed upon its use when the public welfare demands."  Id. at 247, 137 N.E.2d at 379. [*503]

   In Patenaude v. Town of Meredith, 118 N.H. 616, 392 A.2d 582 (1978), the Meredith Planning Board imposed several conditions[***30] before it would approve a subdivision plat. They included one provision that identified several proposed lots, considered unsuitable for building, to be left as open space. The New Hampshire Supreme Court stated:
 
When an owner intends to develop his land in a manner that will result in a [**1010]significant number of people forming a community on that land, adequate recreational space is a necessity . . . . The Meredith Planning Board clearly intends that those moving into the subdivision will have an adequate recreational area. Thus the limitation in use is necessitated by the subdivision itself and need not be compensated.
 
Id. at 623, 392 A.2d at 586.

   With the above in mind, it is important to understand that not all conditions attached to subdivision approvals or imposed on approved subdivisions are "subdivision dedications," and that no such conditions are "common-law dedications." Subdivision dedications and common-law dedications are different creatures as well.
  
Dedications required under subdivision regulations should be distinguished from common law dedications. Common law dedication involves an offer to dedicate and a corresponding acceptance by a[***31] local government. Under common law dedication a developer is estopped from later questioning the acceptance. In subdivision regulation dedication, however, questions of legislative authority and constitutionality arise.
 
Julian Conrad Juergensmeyer & Thomas E. Roberts, Land Use Planning and Control Law 315 (1998).

   Generally, common-law dedications are voluntary offers to dedicate land to public use, and the subsequent acceptance, in an appropriate fashion, by a public entity. Common-law dedications are not mandated by statute. The offers are generally, although not exclusively, made by showing roads, parks or similar facilities on plats without any limitations on [*504] dedication, and the recording of those plats. Generally, acceptance is made by an express recorded document or by the appropriate entity assuming control and maintenance of the property offered. With acceptance, common-law dedication is complete. Referring to common-law dedication in Carr v. Hopkin, 556 P.2d 221, 224 (Wyo. 1976), the Wyoming Supreme Court stated, "there must be intent of the owner to devote the property to a public use . . . and there must be an acceptance. This last requirement is[***32] most important to protect municipalities from having someone impose upon them the responsibility for maintenance and repair of streets or highways." n8 (Citations omitted.) 

n8 In many instances, it is ultimately to a developer's sales advantage to offer to dedicate to the local government water and sewer facilities, streets, recreational areas or other sites because, if the offer is accepted, the local government, not the future residents of the subdivision, generally will be responsible for maintenance of the facilities. In "closed subdivisions," which limit public access, homeowners associations generally are responsible for maintaining such facilities.

   In Priolo v. City of Dallas, 257 S.W.2d 947, 953 (Tex. App. -- Dallas 1953, writ ref'd n.r.e.), the Texas Court of Appeals noted the difference between a statutory dedication and a common-law dedication:

   Prior [to the statute at issue], . . . an offer of dedication was accepted in one of the three well-recognized methods, (1) by the municipality[***33] through proper authorities; (2) estoppel created by sale of lots to persons relying on such plat dedicating streets; or (3) actual public user . . . . It is therefore with reference to a common law offer of dedication that the foregoing methods of acceptance are applicable in contrast to an offer under the statute. "A common-law dedication by a plat may be revoked in whole or in part by the filing of an instrument vacating the plat or a part of it. . . ."
 
The court noted further:
  
"'Dedication' is a setting apart of land for the public use, and may be either statutory or at common law, the distinction [*505] between a statutory and a common-law dedication being that the statutory dedication operates as a grant, while the [**1011] common-law dedication operates by way of estoppel in pais. . . ."
 
Id. at 953 n.2.

   "A subdivision exaction [including a "subdivision dedication"] is a type of subdivision regulation that requires developers to make public improvements or install public facilities (or to finance them) at their own expense." 13 Powell, supra, P873[2][d][ii], at 79D-33 (emphasis added). Subdivision exactions typically take two forms: (1) a statutory[***34] dedication or (2) a payment of a fee in lieu of such dedication. Id. P 873[3][c][i], at 79D-45.

   For example, the court in Coulter v. City of Rawlins, 662 P.2d 888 (Wyo. 1983), reviewed a subdivision regulation that imposed a dedication or fee requirement:
 
"a. All residential subdivisions shall provide for public parks and recreational sites by dedication of land . . . . Dedication of such sites and land areas to the City or . . . in lieu thereof . . . payment to the City of a sum of money equal to the value of the land which would otherwise be dedicated to the City. . . . Dedication of such sites and land areas shall be made at the time of final platting in one or any combination of the following ways:

   "1. By dedicating to the City . . . on the final plat.

   "2. By granting the land area in fee simple or general warranty deed to the City. . . ."
 
Id. at 893 (emphasis added).

   A "reservation[, a type of condition,] . . . is a setting aside of specified land for a specific public purpose. It effects no conveyance to the government, but it restricts the right of the subdivider to use the reserved land." 83 Am. Jur. 2d [***35] Zoning and Planning § 563, at 451 (1983). We noted this distinction in Howard County v. JJM, Inc., 301 Md. 256, 270, 482 A.2d 908, 915 (1984), when we quoted from D. Hagman, [*506] Urban Planning and Land Development Control Law § 140, at 259 (1975):

   "Dedication ordinarily involves the conveyance of an interest in land by the fee owner to the public; usually to the local government having jurisdiction over the land. Reservation, on the other hand, involves no conveyance but restricts the right of the subdivider and others to use the land for anything but the restricted purpose." [Emphasis added.]
 
River Birch Associates v. City of Raleigh, 326 N.C. 100, 108, 388 S.E.2d 538, 542 (1990), further explains this public versus private conveyance distinction:
 
A conveyance creates a "dedication" only when the conveyance benefits the public at large and not merely a portion of it, such as the property owners within a particular subdivision. "There is no such thing as a dedication between owner and individuals. The public must be a party to every dedication. In fact the essence of a dedication to public uses is that it shall be for the use [***36]of the public at large." Jackson v. Gastonia, 246 N.C. 404, 409, 98 S.E.2d 444, 447 (1957) (quoting authorities). The ordinance in this case states unequivocally that the conveyance of common areas shall be in fee simple to the home owners' association, which is composed of the property owners of the subdivision. [Alteration in original.] [Citation omitted.]

   The recreational area condition on appellees' subdivision request does not constitute a dedication because the proposed recreational space is not for general public use; it is intended only for the use of those residing within the Parkway development. The recreational space requirement is a condition.

   A subdivision dedication can be distinguished from a condition imposed on a subdivision approval (whether a reservation or otherwise) depending on the intended recipient. A subdivision dedication requires a developer to give the public the right to use a portion of his property or gives one of the incidents of ownership (e.g., an "in lieu" fee) to the public at [*507] large to use. A subdivision condition, like the provision at issue in this case, merely lim [**1012]its the method in which a property owner may thereafter use [***37]the property. A subdivision dedication is an exaction generally governed by the standards discussed by the Supreme Court in Dolan v. City of Tigard, 512 U.S. 374, 114 S. Ct. 2309, 129 L. Ed. 2d 304 (1994): (1) whether there is an essential nexus as described in Dolan; and, if so, (2) whether the property interest taken is roughly proportional with the demand on public services created by the development. A condition not equating to an exaction normally is governed by "regulatory takings" analysis: (1) whether, as with statutes in general, a public purpose exists, and, if so, (2) whether the regulation deprives the property owner of all viable economic use of the entire property at issue, n9 which in the case at bar is, at the least, the entire third phase of the development. n10 See Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1015-16, 112 S. Ct. 2886, 2894-95, 120 L. Ed. 2d 798 (1992).

n9 The primary focus in exactions cases will be whether the exaction is roughly proportionate; in "regulatory taking" cases the focus is on whether viable economic use remains.

[***38] 

n10 Recent "takings" analysis in the cases has tended to compartimentalize takings into two main areas: (1) actual physical takings including exactions, and (2) regulatory takings, i.e., the effect of a regulation leaving a property owner with no, or little, remaining viable economic use of the property. In the regulatory takings area, one important issue is the meaning of the term "viable" in the context of a specific case. There are in addition several subsets of takings jurisprudence that remain extant despite the apparent attempts to formalize the area of constitutional law into the two main areas. These subsets of constitutional analysis come primarily from earlier cases and generally have not been overruled or discarded by the more modern cases. We shall attempt to distinguish the older, but surviving concepts, infra.

 
The Nollan/Dolan [exaction] requirement takes the form of a two-part test: . . . a permit condition imposed by government: (1) must have an "essential nexus" to a legitimate state interest; and (2) be "roughly proportionate" to the projected impacts of the[***39] proposed development . . . .

   Accordingly, the Nollan/Dolan unconstitutional conditions subset of regulatory takings law possesses its own legal [*508] standards, and is conceptually distinct from "partial," "total" or "temporary" regulatory takings principles.
 
Dwight H. Merriam, What is the Relevant Parcel in Takings Litigation?, in 1999 Zoning and Planning Law Handbook 353, 370 (Deborah A. Mans ed. 1999). For instance, the Oregon Court of Appeals in Clark, 137 Ore. App. at 301-02, 904 P.2d at 190, concluded that the condition [to create an on-site traffic-free area] is not an exaction; it is essentially a traffic regulation. Regulations of that kind are not "exactions" and are not subject to the Dolan test, as distinct from the tests for pure "regulatory takings." Condition 10 is a simple limitation on use, and petitioner makes no regulatory taking argument. [Citation omitted.]

   The two concepts are very different, although exactions and regulatory takings both may arise from statutes. Cf.  Lucas, 505 U.S. at 1015, 112 S. Ct. at 2893, 120 L. Ed. 2d 798. The statute in Lucas, for instance, prohibited Mr. Lucas from building anything[***40] on his property. It did not require him, for instance, to give any of the incidents of his property ownership, or any part of the property, to the State, nor did it require him to permit the public at large to use his property or exercise any of the incidents of ownership over his property. The Supreme Court said:
 
We have, however, described at least two discrete categories of regulatory action as compensable without case-specific inquiry into the public interest advanced in support of the restraint. The first encompasses regulations that compel the property owner to suffer a physical "invasion" of his property. In general (at least with regard to permanent invasions), no matter how minute the intrusion, and no matter how weighty the public purpose behind it, we have [**1013]required compensation. For example, in Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 102 S. Ct. 3164, 73 L. Ed. 2d 868 (1982), we determined that New York's law requiring landlords to allow television cable companies to emplace cable facilities in their apartment [*509] buildings constituted a taking, even though the facilities occupied at most only 1 1/2 cubic feet of the landlords' property. [***41] See also United States v. Causby, 328 U.S. 256, 265, 90 L. Ed. 1206, 66 S. Ct. 1062, and n.10 (1946) (physical invasions of air space); cf.  Kaiser Aetna v. United States, 444 U.S. 164, 100 S. Ct. 383, 62 L. Ed. 2d 332 (1979) (imposition of navigational servitude upon private marina).

   The second situation in which we have found categorical treatment appropriate is where regulation denies all economically beneficial or productive use of land. As we have said on numerous occasions, the Fifth Amendment is violated when land-use regulation "does not substantially advance legitimate state interests [essential nexus] or denies an owner economically viable use of his land."
 
505 U.S. at 1015-16, 112 S. Ct. at 2893-94, 120 L. Ed. 2d 798 (some citations omitted). The Lucas Court meant that in these two instances, even if there is a valid, connected public purpose, i.e., an essential nexus, there still must be compensation for the taking.

   There are two prongs to both exaction and regulatory takings. The first prong for both is generally the same, the essential nexus between the legitimate [***42]public purpose and the requirement. In practice, the essential nexus may need to be more specific in pure exaction cases because of the more specific nature of the taking, i.e., it may need to relate more specifically to the need for the exaction. The second prong for exactions is the rough proportionality analysis; the second prong for regulatory takings is whether there remains viable economic use of the entire tract involved. If the taking is an exaction, it is an actual taking and whether remaining viable economic use exists is irrelevant. n11 If it is a "regulatory taking," whether the limitation is "roughly proportional" to the demands for public services is irrelevant. This distinction is important because exactions now are scrutinized typically under Fifth Amendment Taking Clause jurisprudence pursuant [*510] to Dolan, 512 U.S. 374, 114 S. Ct. 2309, 129 L. Ed. 2d 304 (1994), while "regulatory takings" usually are examined under Lucas, 505 U.S. 1003, 112 S. Ct. 2886, 120 L. Ed. 2d 798, and related cases.

n11 Any exaction, no matter how small or large, must comply with the rough proportionality standard of Dolan.

[***43]

   While the trend of the cases in the last twenty years has been towards a formulaic approach tending to include all "takings" analysis within either the Lucas "regulatory takings" analysis or the Dolan "exactions" analysis, there remain other relevant "takings" issues that do not fit into current "mainstream" concepts. We stated as much in Maryland Port Administration v. QC Corp., 310 Md. 379, 388, 529 A.2d 829, 833 (1987): "To date courts have not developed a test which can be comprehensively and consistently applied to determine whether a government has taken property." While at the time of QC Corp. the impact of the "modern" takings cases, Lucas, Dolan, Nollan, and First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304, 107 S. Ct. 2378, 96 L. Ed. 2d 250 (1987), was not yet apparent, there is no indication in those more recent cases that they are to supplant completely the areas of "takings" law that, even with the broad limits of the modern cases, do not fit within their framework.

   Moreover, some of the early cases were based in substantial part on Maryland constitutional law. They include Grant v. Mayor & City Council, 212 Md. 301, 129 A.2d 363 (1957),[***44] where we noted that the property owner was challenging the ordinance [**1014] at issue there under state constitutional grounds: "the enforcement of Ordinance 711 . . . would take from them [rights of property] without compensation contrary to Art. 3, Sec. 40 of the Constitution of Maryland." See also Stevens, supra, "appellants insist that section 42 is an attempt to 'take' their property . . . which is proscribed by Article 23 of the Declaration of Rights, Article III, Section 40 of the Maryland Constitution and . . . ." See also Leet v. Montgomery County[, 264 Md. 606, 287 A.2d 491] and Richmond Corp. v. Board of County Comm'rs, infra[, 254 Md. 244, 255 A.2d 398]. We have not limited the consideration of Maryland constitutional issues to the "regulatory takings" (loss of viable economic use) analysis of the Supreme Court's Mahon/Lucas [*511] line of cases or the federal standard for exactions under Nolan/Dolan (although our Howard County v. JJM. Inc., infra, case, in essence, was a precursor of the Nolan/Dolan rough proportionality standard).

   An example of one type of case that generally would not fit within the Lucas/ Mahon or Nollan/Dolan lines of cases would be when a governmental entity desires [***45] to prohibit altogether the operation of certain types of uses and enacts a statute that requires the cessation and subsequent demolition of an already existing use. In the absence of sufficient and proper amortization and nonconforming use provisions, constitutional "takings" issues could arise, even if remaining viable economic use would exist after the termination of the use and even if no exactions would result.

    Grant v. Mayor of Baltimore, 212 Md. 301, 129 A.2d 363 (1957), and Stevens, 240 Md. 556, 214 A.2d 775, illustrate one of our pre Nolan and pre Lucas approaches to regulatory takings. These two cases show that, given the appropriate circumstances, we have held certain restrictions on existing nonconforming uses to be unconstitutional regardless of whether they effected deprivations of all economically beneficial use of property. In Grant, billboard companies and two owners of land leased for billboard use sought to invalidate a zoning ordinance establishing a five-year amortization period at the expiration of which all billboards in residential districts had to be taken down. This Court remarked that state courts across the nation[***46] have held that "it is unreasonable and unconstitutional for a zoning law to require immediate cessation of nonconforming uses otherwise lawful," Grant, 212 Md. at 308, 129 A.2d at 365, and cited, inter alia, the prior Maryland decision of Amereihn v. Kotras, 194 Md. 591, 601, 71 A.2d 865, 869 (1950) ("Manifestly this cannot be done, because it would amount to a confiscation of the property, and nonconforming use is a vested right and entitled to constitutional protection"). 

   This Court, however, then distinguished between regulations requiring immediate cessation of nonconforming uses [*512] and those demanding cessation only after a reasonable amortization period. We reasoned that every regulation "impairs some vested rights because it affects property owned at its effective date"; therefore, the "distinction between an ordinance that restricts future uses and one that requires existing uses to stop after a reasonable time, is not a difference in kind but one of degree and, in each case, constitutionality depends on overall reasonableness, on the importance of the public gain in relation to the private loss." Grant, 212 Md. at 314, 315, 129 A.2d at 369.[***47] We further stated that the "significance and effect of difference in degree in any given case depends on circumstances, environment and length of the period allowed for amortization." Id. at 316, 129 A.2d at 370.

   In Grant, the Court then conducted an in-depth consideration of the facts and competing interests involved in the particular case. The Court held that the amortization period was not unconstitutional for a number of specific reasons. First, it noted the extensive legislative findings that billboards depreciated property values and otherwise contributed to the detriment of residential neighborhoods. This demonstrated that there was a valid public purpose behind the ordinance. Next, the [**1015] Court observed that the five-year amortization period was fair because the billboard companies themselves used a five-year depreciation rate for federal tax purposes. Even if the billboards proved to have a useful life beyond the five-year period, they could be transferred to commercial and industrial districts. Moreover, the billboards in residential districts constituted only 5% of the companies' total number of billboards in the City, and the companies' leases with landowners[***48] all contained clauses exempting the companies from liability for rent if the municipal ordinance required the billboards to be taken down. Thus, the Court concluded that, with regard to the billboard companies, the character of the governmental action was fair and reasonable and the economic impact on the companies was not severe.  Id. at 316-21, 129 A.2d at 370-73.

   In Grant, this Court also similarly considered the ramifications of the ordinance with respect to the two landowners who [*513] leased their land to the billboard companies, finding that "any loss or harm that they suffer . . . is not sufficiently substantial compared to the public good to make the ordinance invalid as to them." Grant, 212 Md. at 321, 129 A.2d at 373. Although we stated that "if the ordinance imposed such restrictions that the land could not be used for any reasonable purpose, it would, of course, be invalid," we did not limit our analysis to a finding that there had been no deprivation of all economically beneficial use.  Grant, 212 Md. at 321, 129 A.2d at 373. Instead, the Court again considered such factors as the reasonable length of the amortization period[***49] and certain other factors, finding, inter alia, that their leases were only for one-year terms and that for the entire five-year amortization period they were able to earn revenue from the leases while seeking other uses for their property.  Id. at 321-22, 129 A.2d at 373.

   In Stevens, 240 Md. 556, 214 A.2d 775, we held that a purported amortization period did not prevent sections of an ordinance eliminating nonconforming uses from amounting to an unconstitutional taking. What distinguished the improper amortization in Stevens from the "true" amortization in Grant was that the nonconforming uses in Stevens did not pertain to commercial uses that lent themselves to amortization in order to protect the owner's investment.  Stevens, 240 Md. at 570-71, 214 A.2d at 783. Rather, the ordinance compelled the removal or reduction of shrubbery, walls, other fixtures, and even soil above a certain height from portions of residential corner lots in order to serve the public purpose of improved traffic safety. As the Court noted, the City was attempting to force a few landowners to bear the burden of providing the public benefit of [***50]improved traffic safety "possibly to avert the necessity of erecting, at public expense, a stop sign or other traffic signal." Stevens, 240 Md. at 569, 214 A.2d at 782. In considering the fairness and reasonableness of the ordinance in detail, we again stressed that distinguishing a valid regulation of land use from an unconstitutional taking does not always lend itself to the application of sharply defined categories: [*514]
 
[A] careful examination of the authorities discloses that when a "regulation" approaches the line of demarcation between it and a "taking" (and we think this is such a case), it sometimes does so by almost imperceptible gradations, so that it is difficult to determine where "regulation" ends and a "taking" is effectuated.
 
Id. at 564-65, 214 A.2d at 779. We held that the prospective sections of the ordinance were valid, as was the requirement that landowners trim their shrubbery and trees so long as the usefulness of the objects was not destroyed and no substantial losses were incurred. We held, however, that insofar as the ordinance required the reduction, removal, or destruction of existing property at the owners' expense, [***51] it was a taking, even though the owners would clearly not suffer from a deprivation of all economically beneficial or reasonable use of their property.  Id. at 572-73, 214 A.2d at 784.

   [**1016] In several other cases, we have held that government action constituted a taking when the owners in question were not denied all beneficial uses of their property. For example, in Leet v. Montgomery County, 264 Md. 606, 287 A.2d 491 (1972), we held unconstitutional the application of trash-removal ordinances requiring a landowner to remove, at his own expense, automobiles abandoned on his property by trespassers against his will and without his knowledge. This Court held that, although there was no physical invasion or legal taking by the government, nonetheless the landowner was compelled to expend substantial private resources to serve the public good and therefore was deprived of his property without just compensation.

   Several of our cases have also found unconstitutional takings when the government has attempted to use its regulatory powers to keep depressed, or even to depress, the value of property it anticipates it might need to acquire in the future. We have[***52] held that the government cannot use its regulatory powers to depress values in order to acquire the property at the lower values. Whether the regulations deprived the owner of all use for a temporary period, or reduced use over a longer period, we have held, generally, that when the purpose [*515] is to depress values a "taking" can occur. See Hoyert v. Board of County Comm'rs, 262 Md. 667, 278 A.2d 588 (1971); Carl M. Freeman Assocs., Inc. v. State Rds. Comm'n, 252 Md. 319, 250 A.2d 250 (1969). We quoted Freeman, 252 Md. at 329-30, 250 A.2d at 255, in Mayor of Baltimore v. Kelso Corp., 281 Md. 514, 519-20, 380 A.2d 216, 220 (1977):

   In a case where the direct and sole purpose of the ordinance is to depress property values, . . . we must weigh the public purpose sought to be advanced and the means taken to achieve it, in light of the constitutional right of the property owner to receive just compensation for his property taken by eminent domain. In such a situation the Walls of Jericho must fall and the property owner be permitted to defend himself against the ordinance. The ordinance is directly involved and is directly[***53] impinging upon one of his constitutional guarantees. The property owner must be protected from prejudicial evidence as to value based on restrictions on the use of his property unconstitutionally impressed as part of a design to freeze or depress its value. To hold otherwise is to deprive him of the opportunity to receive just compensation for his property guaranteed by section 40 of Article III of the Constitution of Maryland. [Alteration in original.]

   Another area of "takings" law in which the cases have found unconstitutional takings not involving exactions, and in which remaining viable economic use arguably remains, are "vesting" cases. "Vesting" occurs when property owners have made significant steps in the development of a project prior to the enactment of statutes that prohibit what formerly was permitted. Even in Maryland, where the concept seems to be limited to situations in which some progress under the prior statutes is required, we have recognized the potential for unconstitutional takings to occur, even though a property owner might be permitted an economically viable use under the new statute. Although we held the ordinance valid in Rockville Fuel & Feed Co. v. City of Gaithersburg, 266 Md. 117, 291 A.2d 672 (1972),[***54] and held that Rockville Fuel's actions had not been substantial enough to vest in it the right to [*516] proceed under the old ordinance, we acknowledged by implication that, had its actions been substantial enough, the new ordinance's impact on Rockville Fuel might have amounted to an unconstitutional taking, even though remaining viable economic use might have remained and any exaction from the property owner might not have occurred. In Richmond Corp. v. Board of County Comm'rs, 254 Md. 244, 255-56, 255 A.2d 398, 404 (1969), we said:
 
In Maryland it is established that in order to obtain a "vested right" in the existing zoning use which will be constitutionally [**1017] protected against a subsequent change in the zoning ordinance prohibiting or limiting that use, the owner must (1) obtain a permit or occupancy certificate where required by the applicable ordinance and (2) must proceed under that permit or certificate to exercise it on the land involved so that the neighborhood may be advised that the land is being devoted to that use.
 
That type of constitutional protection would be available in the absence of exactions and even if remaining viable economic use might remain. [***55]

   These cases and situations which we discuss next above -- and there may be other situations as well (we have not discussed actual physical takings outside an "exaction" context, for instance nor have we here discussed the concept of zoning estoppel) -- indicate that, while many "takings" situations may be categorized into "regulatory takings" as defined in the Lucas/Mahon line of cases, or into "exactions" as defined in the Nollan/Dolan line of cases, there are other categories that simply do not fit into these analyses of "takings" law. Accordingly, the Court will need, on occasion, to address the constitutionality of statutes outside the structure of the regulatory takings and viable economic use standards applied in most instances.

   There are cases in which, even though viable economic use remains under the Lucas standard, further constitutional analysis is appropriate. In other words, if no viable economic use remains, and traditional nuisance issues are absent, an [*517] unconstitutional taking generally will have occurred. If economic use remains, the additional analyses of the earlier cases, including our own, or even of current cases as they develop over time[***56] may, in a given instance, be necessary.

   In Penn Central Transportation Co. v. City of New York, 438 U.S. 104, 124, 98 S. Ct. 2646, 2659, 57 L. Ed. 2d 631 (1978), the United States Supreme Court, prior to Lucas, First English Evangelical, Nollan, Dolan, and Del Monte Dunes, infra, opined: "this Court, quite simply, has been unable to develop any 'set formula' for determining when 'justice and fairness' require that economic injuries caused by public action be compensated by the government, rather than remain disproportionately concentrated on a few persons." In City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 119 S. Ct. 1624, 143 L. Ed. 2d 882 (1999), aff'g 95 F.3d 1422 (9th Cir. 1996), the Court returned to the dilemma it recognized in Penn Central (if it had ever departed, given some of the language used in the previous cases). The Del Monte Dunes Court said:

   Almost from the inception of our regulatory takings doctrine, we have held that whether a regulation of property goes so far that "there must be an exercise of eminent domain and compensation to sustain the act . . . depends [***57]upon the particular facts." Consistent with this understanding, we have described determinations of liability in regulatory takings cases as "'essentially ad hoc, factual inquiries,'" requiring "complex factual assessments of the purposes and economic effects of government actions."
 
526 U.S. at 720, 119 S. Ct. at 1644, 143 L. Ed. 2d 882,     (citations omitted). 

   In the case at bar, however, appellees have presented no evidence or compelling reason, nor did they proffer any constitutional questions other than the Lucas and Dolan issues. Indeed, under the circumstances of this case, it is difficult to contemplate other constitutional issues. The issue, as presented in the case sub judice, involves only a question of whether all viable economic use has been taken by the regulation, [*518] whether there has been an exaction, and whether the trial court applied the correct concepts.

   Continuing our consideration of the present case, the Supreme Court recently noted the inapplicability of the Dolan "rough proportionality" test to general "regulatory takings" issues in Del Monte Dunes. There, in a six-year effort, the developer originally had submitted subdivision[***58] plans for 344 residential units on a [**1018] parcel where more than 1,000 units were permitted. When the planning commission disapproved that plan and informed the developer that a subdivision of 264 units would be approved, he submitted plans for a subdivision of 264 units. The planning commission disapproved that plan and asked the developer to resubmit a plan for 224 units, which the developer submitted. When the planning commission disapproved the 224-unit subdivision, the developer appealed to the city council, which referred the project back to the planning commission to consider a 190-unit subdivision. The developer resubmitted a plan for a 190-unit subdivision to the commission. The commission rejected that plan and the developer appealed to the city council. The council overruled the commission and granted the developer an eighteen-month conditional use permit. Several conditions were imposed on the permit including open space and environmental limitations, one of which was to preserve habitat for "Smith's Blue Butterflies," only one larva of which had ever been seen on the property. The developer then resubmitted his plans to the commission as required by the city council. The commission's[***59] staff found that the developer had complied with all of the city's conditions and recommended approval. The commission then rejected its staff's recommendation and again rejected the plan, leaving less than two months on the developer's conditional use permit. The developer again appealed to the city council and requested a twelve-month extension on the life of his conditional use permit. The city council finally denied the developer any extension and disapproved his plan. By this time, a sewer moratorium was in place. The Supreme Court noted "after five years, five formal decisions, and 19 different site plans, respondent Del Monte Dunes decided the [*519] city would not permit development of the property under any circumstances. Del Monte Dunes commenced suit against the city . . . ." 526 U.S. at 698, 119 S. Ct. at 1633, 143 L. Ed. 2d 882 (citation omitted). The developer filed a 42 U.S.C. § 1983 action and ultimately was awarded $1,400,000.00 in damages. His property, in the meantime, had been bought by the State of California for use as a park.

   The primary issues related to the developer's right to a jury trial. The Supreme Court, however, took notice[***60] that the United States Court of Appeals for the Ninth Circuit, in affirming the district court, had stated: "even if the City had a legitimate interest in denying Del Monte's development application, its action must be 'roughly proportional' to furthering that interest . . . . That is, the City's denial must be related 'both in nature and extent to the impact of the proposed development.'" 526 U.S. at 702, 119 S. Ct. at 1635, 143 L. Ed. 2d 882 (quoting 95 F.3d at 1430) (alteration in original). The Supreme Court rejected the Ninth Circuit's attempt to apply the rough proportionality analysis to a "regulatory takings" case, stating:

   Although in a general sense concerns for proportionality animate the Takings Clause, see Armstrong v. United States, 364 U.S. 40, 49, 80 S. Ct.1563, 4 L. Ed. 2d 1554 (1960) ("The Fifth Amendment's guarantee . . . was designed to bar the Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole"), we have not extended the rough-proportionality test of Dolan beyond the special context of exactions -- land-use decisions conditioning[***61] approval of development on the dedication of property to public use. See Dolan, supra, at 385, 114 S. Ct. 2309; Nollan v. California Coastal Comm'n, 483 U.S. 825, 841, 107 S. Ct. 3141, 97 L. Ed. 2d 677 (1987). The rule applied in Dolan considers whether dedications demanded as conditions of development are proportional to the development's anticipated impacts. It was not designed to address, and is not readily applicable to, the much different questions arising where, as here, the landowner's challenge is based not on excessive exactions [**1019] but on denial of development. We believe, accordingly, that [*520] the rough-proportionality test of Dolan is inapposite to a case such as this one.
 
526 U.S. at 703, 119 S. Ct. at 1635, 143 L. Ed. 2d 882. n12

n12 The Supreme Court was unanimous in its rejection of using the "rough proportionality" test in regulatory limitation cases, although other parts of the majority opinion were challenged in concurring or dissenting opinions.

[***62]

   We further note that in Messer v. Town of Chapel Hill, 59 N.C. App. 692, 297 S.E.2d 632 (1982), review denied, 307 N.C. 697, 301 S.E.2d 390 (1983), a case cited by appellant and almost exactly on point, a state statute allowed local ordinances to require either a dedication or reservation of recreation areas. The developer in that case wished to place open space on the northeast corner of the parcel to be subdivided. The local Planning Board disagreed with the proposed shape and location of that parcel. The North Carolina Court of Appeals noted the importance of the disjunctive "dedication or reservation" requirement "because dedication of private property contemplates public use." Id. at 695, 297 S.E.2d at 634. The reservation, by contrast, did not amount to eminent domain because that power typically "is defined as 'the power of the sovereign or some agency authorized by it to take private property for public use.'" Id. at 696, 297 S.E.2d at 635 (quoting Virginia Elec. & Power Co. v. King, 259 N.C. 219, 220, 130 S.E.2d 318, 320 (1963)). The court concluded that "merely changing the location of a recreation[***63] area as a condition of approval of a subdivision plan does not amount to a taking so as to require compensation." Id. 

   As in Messer, the case sub judice does not involve an exaction because no dedication has occurred. A rough proportionality review as to whether the need for recreational space is generated by the demands of the development is unnecessary because nothing has been exacted for the general public. Presuming that a valid public purpose exists, the test described in Lucas, whether the regulatory impact is so severe as to leave the property owner with no remaining viable economic use of the totality of his land, is the type of taking alleged in the case at bar. [*521]

   We note that in its opinion, the trial court utilized the term "dedication" indiscriminately. It used "dedication" to describe what actually were conditions, and then attempted to apply the Dolan "rough proportionality" standard. In doing so, the trial court erred.

   In his opinion, the trial judge commented on Judge Williams' findings in the previous case, which we describe in part, supra. The trial judge below stated that Judge Williams had "ordered that the Commission was to approve the Section [***64]III Proposal and then send it to the Annapolis City Council to consider the limited issue of whether there was a need for recreational space, and if so, where it was to be located." Ultimately, the City Council approved Section III, attaching certain conditions that did not include any dedication to public use or any exactions relevant to this appeal. The pertinent conditions were that the preliminary Plat entitled "Parkway, Section III", be approved subject to the following conditions . . . :
 
1. The developer shall provide a minimum of 2,375 square feet of recreational space for common use at Lot One located on the corner of Hilltop Lane and Tyler Avenue;
 
2. Lot One located on the corner of Hilltop Lane and Tyler Avenue shall not be improved with any residential dwelling unit . . . .
 
Resolution R-47-95 (emphasis added). These conditions are not exactions. The usual and customary meaning of the phrase "for common use" in a subdivision context is that all of the subdivision residents have the right to use the area. n13 [**1020] Generally, it does not, without more, extend any rights to the public at large to use the area. n14 The condition does not limit [*522] the right of appellees[***65] to exclude nonresidents of the subdivision from new Lot 1. It does not prohibit the posting of "no trespassing" signs for instance or other ways to deny access to the public. The second condition merely limits the uses appellees can make of new Lot 1. This, accordingly, is not an exactions case; thus, under the issues presented in this case, our review of the constitutionality of the conditions is governed by whether the conditions deny appellees all viable economic use of the property.

 n13 Under the circumstances of this case, the condition could also be construed to mean that the residents of all three phases have the right to use the area.

n14 It may well be possible for a regulation to be so extensive that it might amount to an exaction or a "taking," even without any express provision for actual physical public use.

   The trial judge further commented in reference to the first condition that "the use of [appellees'] property as a mini-park would deprive [appellees] of their right to exclude others. [***66] " He then cites two cases that describe the "right to exclude others" as an essential element of property ownership. As we have noted, the condition in the case at bar does not interfere with appellees' rights to exclude others. The condition does not require them to confer any rights of access to members of the general public, only to the owners of the subdivision and their successors in interest as appellees agreed to do in 1976.

   The lower court then cited two "regulatory takings" cases, Agins v. City of Tiburon, 447 U.S. 255, 100 S. Ct. 2138, 65 L. Ed. 2d 106 (1980), and Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S. Ct. 158, 67 L. Ed. 322 (1922), for the proposition that if a regulation deprives a property owner of all economically viable use of his land, it is an unconstitutional taking of property. The trial court compounded its previous mistake by adding a third step:

   the final step of a takings analysis requires the Court "to determine whether the degree of the exactions demanded by the City's permit conditions bear the required relationship to the projected impact of the Plaintiffs' proposed development."  Dolan v. City of Tigard, 512 U.S. 374, 129 L. Ed. 2d 304, 114 S. Ct. 2309 (1994).[***67] In Dolan, the Supreme Court adopted the "rough proportionality test" for determining the question above.

   . . . . [*523]

   Having articulated the standard of law applicable in an analysis of a takings case, the Court can now apply the standard to the facts in the case at bar.

   At this point the lower court had improperly mixed two different concepts: regulatory takings and exactions. As we stated, supra, a regulatory taking claim does not allege an actual physical taking. It is merely a claim that a regulation so limits the use of an owner's property that it leaves him with no viable economic use. n15 Initially, the concept of an exaction has been held to include, although they are not necessarily limited to, actual takings, albeit done by regulatory action. Exactions have been held to include such things as lateral beach easements, see, e.g., Nollan, 483 U.S. 825, 107 S. Ct. 3141, 97 L. Ed. 2d 677, flood plain and public bicycle easements, see, e.g., Dolan, 512 U.S. 374, 114 S. Ct. 2309, 129 L. Ed. 2d 304, a cable television easement, see Loretto, 458 U.S. 419, 102 S. Ct. 3164, 73 L. Ed. 2d 868, a $280,000 mitigation fee and $33,220[***68] "in lieu of art" fee, see Ehrlich v. City of Culver City, 15 Cal. App. 4th 1737, 19 Cal. Rptr. 2d 468 (1993), vacated, 512 U.S. 1231, 114 S. Ct. 2731, 129 L. Ed. 2d 854 (1994), n16 dedication of land for canals, see, e.g., Wald Corp. v. Metropolitan Dade County, 338 So. 2d 863 (Fla. Dist. Ct. App. 1976), cert. denied, 348 [**1021] So. 2d 955 (Fla. 1977), impact fees, see, e.g., Board of County Comm'rs v. Bainbridge, Inc., 929 P.2d 691 (Colo. 1996); Southern Nev. Homebuilders Ass'n, Inc. v. Las Vegas Valley Water Dist., 101 Nev. 99, 693 P.2d 1255 (1985), dedication of parks, [*524] playgrounds and schools to the public at large, or fees in lieu thereof, see, e.g., Associated Home Builders v. City of Walnut Creek, 4 Cal. 3d 633, 484 P.2d 606, 94 Cal. Rptr. 630, appeal dismissed, 404 U.S. 878, 92 S. Ct. 202, 30 L. Ed. 2d 159 (1971); Krughoff v. City of Naperville, 68 Ill. 2d 352, 369 N.E.2d 892, 12 Ill. Dec. 185 (1977); Pioneer Trust & Sav. Bank v. Village of Mount Prospect, 22 Ill. 2d 375, 176 N.E.2d 799 (1961); Collis v. City of Bloomington, 310 Minn. 5, 246 N.W.2d 19 (1976);[***69]  Home Builders Ass'n v. City of Kansas City, 555 S.W.2d 832 (Mo. 1977); Billings Properties, Inc. v. Yellowstone County, 144 Mont. 25, 394 P.2d 182 (1964); Bayswater Realty & Capital Corp. v. Planning Bd., 76 N.Y.2d 460, 560 N.E.2d 1300, 560 N.Y.S.2d 623 (1990); Jenad, Inc. v. Village of Scarsdale, 18 N.Y.2d 78, 218 N.E.2d 673, 271 N.Y.S.2d 955 (1966); Frank Ansuini, Inc. v. City of Cranston, 107 R.I. 63, 264 A.2d 910 (1970); City of College Station v. Turtle Rock Corp., 680 S.W.2d 802 (Tex. 1984); Call v. City of West Jordan, 606 P.2d 217 (Utah 1979), rev'd on other grounds in reh'g , 614 P.2d 1257 (Utah 1980); Jordan v. Village of Menomonee Falls, 28 Wis. 2d 608, 137 N.W.2d 442 (1965), appeal dismissed, 385 U.S. 4, 87 S. Ct. 36, 17 L. Ed. 2d 3 (1966), mandatory dedications of streets, see, e.g., City of Bellefontaine Neighbors v. J.J. Kelley Realty & Bldg. Co., 460 S.W.2d 298 (Mo. Ct. App. 1970); Vogel v. Board of County Comm'rs, 157 Mont. 70, 483 P.2d 270 (1971); Simpson v. City of North Platte, 206 Neb. 240, 292 N.W.2d 297 (1980);[***70] McKain v. Toledo City Plan Comm'n, 26 Ohio App. 2d 171, 270 N.E.2d 370 (1971), dedication of geothermal rights, see Parks v. Watson, 716 F.2d 646 (9th Cir. 1983), dedication of drainage facilities, see, e.g., Petterson, 9 Ill. 2d 233, 137 N.E.2d 371; Divan Builders, Inc. v. Planning Bd., 66 N.J. 582, 334 A.2d 30 (1975), and the imposition of navigational servitudes, see Kaiser Aetna, 444 U.S. 164, 100 S. Ct. 383, 62 L. Ed. 2d 332. Nothing similar to the exactions described in the cases above, and in many others, has happened here.

n15 As we have explained, supra, in some situations regulatory "takings" claims may not be limited to cases in which no remaining economical use remains. In this case, however, the only allegations involved a loss of all economical use or an exaction.

n16 The Supreme Court sent this case back to the state court for reconsideration in light of Dolan. On remand, the intermediate appellate court affirmed its prior holding that the exactions were permissible even under Dolan and Nollan. On appeal, the Supreme Court of California determined that the record did not contain sufficient evidence to satisfy the rough proportionality test, but remanded the case to the trial level to enable the city to again address rough proportionality. See Ehrlich v. City of Culver City, 12 Cal. 4th 854, 911 P.2d 429, cert. denied, 519 U.S. 929, 117 S. Ct. 299, 136 L. Ed. 2d 218 (1996).

[***71]

   In the present case, the trial court stated that the city had overstepped its authority when it imposed the condition that proposed Lot 1 could not have a dwelling constructed on it. Apparently, the trial court made the mistake of considering [*525] only the portion of the third-phase subdivision directly affected by the building and recreational space limitations, new Lot 1. After finding that both conditions met the essential nexus test, "the city has satisfied the requirements for the essential nexus test as specified by the U.S. Supreme Court in Nollan v. California Coastal Comm'n, 483 U.S. 825, 97 L. Ed. 2d 677, 107 S. Ct. 3141 (1987)," n17 the trial court went on to apply the Dolan rough proportionality test to the condition that no dwelling be built on Lot 1, saying there must be "' . . . some sort of individualized determination that the required dedication is related both in nature and extent to the impact of the proposed development.'" (Quoting Dolan, 512 U.S. at 391, 114 S. Ct. at 2319-20, 129 L. Ed. 2d 304.) The trial court found "that [the] City Council's condition ordering that Lot One of the Section III Proposal be dedicated as recreational [***72]space to serve as a mini-park is not reasonably related to the needs that would be created by the subdivision should it be built." n18 The trial court applied the wrong standard because there was no dedication or other exaction. [**1022] There was a condition that the open space area previously agreed to be placed at that location for the "common use" of the subdivision residents. The trial court should have applied the regulatory takings standard, i.e., under the issues, as presented in this case, whether there was loss of all viable economic use.

n17 Again the trial court utilized an exactions case. The Nollans were required to give a lateral beach access easement to the general public. That is an exaction and an actual taking. The essential nexus or public purpose standards, however, apply generally to both exactions and regulatory takings cases.

n18 "Reasonably related" is a term used by this Court in Howard County v. JM, Inc., 301 Md. 256, 482 A.2d 908. The Supreme Court in Dolan, 512 U.S. at 391, 114 S. Ct. at 2319, 129 L. Ed. 2d 304, stated:

   We think the "reasonable relationship" test adopted by a majority of the state courts is closer to the federal constitutional norm . . . . But we do not adopt it as such, partly because the term "reasonable relationship" seems confusingly similar to the term "rational basis" . . . . We think a term such as "rough proportionality" best encapsulates what we hold to be the requirement of the Fifth Amendment [in respect to exactions].

[*526] [***73]

    The trial court also erred by not including at least the entire third-phase property (all of Lot 4, including the duplex lots). n19 In considering whether a regulatory taking has left remaining viable economic use of the property, the property to be assessed for economically viable use is, as we have said, the entire tract of land, not just the proposed new corner Lot 1. The Supreme Court began to establish limits when considering property in such a takings context in Penn Central, 438 U.S. 104, 98 S. Ct. 2646, 57 L. Ed. 2d 631. In Penn Central, the Supreme Court was considering the effect of "landmark preservation" ordinances that had resulted in Penn Central being unable to erect a high rise in the airspace above its train station in New York City. Penn Central admitted that viable economical uses remained in the existing uses of the train station. It argued that the total denial of the ability to build above the train station was a complete limitation of its right to that segment of its property -- the air rights. The Court noted that they argued that the Landmarks Law has deprived them of any gainful use of their "air rights". . . and that, irrespective [***74]of the value of the remainder of their parcel, the city has "taken" their right to this superadjacent air space, thus entitling them to "just compensation" measured by the fair market value of these air rights.

n19 As there clearly remains viable economic use in the remainder of Lot 4, the entire phase now being subdivided, we do not have to decide whether in assessing economic viability all three phases should be considered. We note that this property has been considered from the beginning as a three-phase project, and appellees have retained ownership of the future phases throughout the length of the project. They presumably have already received viable economic benefits from the sales of the first two phases. An assessment of economic viability may well require a consideration of the whole three-phase project.

 
Id. at 130, 98 S. Ct. at 2662, 57 L. Ed. 2d 631. The Supreme Court declined to adopt Penn Central's theory that the air rights could be separated for "takings" considerations. [***75]

   "Taking" jurisprudence does not divide a single parcel into discrete segments and attempt to determine whether rights in a particular segment have been entirely abrogated. In [*527] deciding whether a particular governmental action has effected a taking, this Court focuses rather both on the character of the action and on the nature and extent of the interference with rights in the parcel as a whole--here, the city tax block designated as the "landmark site."
 
Id. at 130-31, 98 S. Ct. at 2662, 57 L. Ed. 2d 631. The Court noted that Penn Central's assertion that it could "establish a 'taking' simply by showing that [it] has been denied the ability to exploit a property interest that they . . . believed was available . . . is quite simply untenable." Id. at 130, 98 S. Ct. at 2662, 57 L. Ed. 2d 631. In its discussion of the air rights issue, the Court discussed a claim that the city was taking Penn Central's air rights for use of the public. The Court said:

   The Landmark Law's effect is simply to prohibit [Penn Central] or anyone else from occupying portions of the airspace above the Terminal, while permitting [Penn Central] to use the remainder of[***76] the parcel in a gainful fashion. This is no more an appropriation of property by [**1023] government for its own uses than is a zoning law prohibiting, for "aesthetic" reasons, two or more adult theaters within a specified area, or a safety regulation prohibiting excavations below a certain level.
 
Id. at 135, 98 S. Ct. at 2665, 57 L. Ed. 2d 631 (citations omitted).

   The more recent case of Keystone Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. 470, 107 S. Ct. 1232, 94 L. Ed. 2d 472 (1987), involved a Pennsylvania statute that required companies mining subsurface coal to leave a certain portion of the coal in place to support the surface above, avoiding subsidence problems. n20 The statute required the companies to leave in place 27 million tons of coal. The companies argued, in a takings context, that in determining whether there was any [*528] remaining viable economic use in the property only that 27 million tons of coal should be considered as the property. The State of Pennsylvania argued that all of the coal should be considered in assessing remaining viable economic use. The 27 million tons of coal required to remain in place constituted less than 2%[***77] of the total amount of coal. The Supreme Court said:

   The parties have stipulated that enforcement of the [statute] will require petitioners to leave approximately 27 million tons of coal in place. Because they own that coal but cannot mine it, they contend that Pennsylvania has appropriated it for the public purposes described in the Subsidence Act.

n20 In Pennsylvania, property law "subsurface" rights, under certain circumstances, were considered separate property. Many original owners, when subsurface and surface rights were combined as one property, had conveyed their subsurface mineral rights without reserving surface support rights. See id. at 478, 107 S. Ct. at 1238, 94 L. Ed. 2d 472.

   This argument fails for the reason explained in Penn Central and Andrus. The 27 million tons of coal do not constitute a separate segment of property for takings law purposes. Many zoning ordinances place limits on the property owner's right to make profitable use of some segments of his property. [***78]A requirement that a building occupy no more than a specified percentage of the lot on which it is located could be characterized as a taking of the vacant area as readily as the requirement that coal pillars be left in place. Similarly, under petitioners' theory one could always argue that a setback ordinance requiring that no structure be built within a certain distance from the property line constitutes a taking because the footage represents a distinct segment of property for takings law purposes. There is no basis for treating the less than 2% of petitioners' coal as a separate parcel of property. 

   . . . .
 
   When the coal that must remain beneath the ground is viewed in the context of any reasonable unit of petitioners' coal mining operations and financial-backed expectations, it is plain that petitioners have not come close to satisfying their burden of proving that they have been denied the economically viable use of that property. The record indicates that only about 75% of petitioners' underground coal can be profitably mined in any event, and there is no [*529]showing that petitioners' reasonable "investment-backed expectations" have been materially affected by the additional duty[***79] to retain the small percentage that must be used to support the structures protected by [the statute].
 
Id. at 498-99, 107 S. Ct. at 1248-49, 94 L. Ed. 2d 472 (citation omitted). n21

n21 The Supreme Court also distinguished regulatory takings from exactions:

   We do not suggest that the State may physically appropriate relatively small amounts of private property for its own use [(an exaction)] without paying just compensation. The question here is whether there has been any taking at all when no coal has been physically appropriated, and the regulatory program places a burden on the use of only a small fraction of the property that is subjected to regulation.
 
Id. at 499 n.27, 107 S. Ct. at 1249 n.27, 94 L. Ed. 2d 472.

   [**1024] In Concrete Pipe & Products v. Construction Laborers Pension Trust, 508 U.S. 602, 113 S. Ct. 2264, 124 L. Ed. 2d 539 (1993), the company argued that the provisions denying it the ability to withdraw from pension plans constituted an[***80] unconstitutional taking of its property. There the Supreme Court relied on both Penn Central and Keystone Bituminous in holding
 
While Concrete Pipe tries to shoehorn its claim into this analysis by asserting that "the property of [Concrete Pipe] which is taken, is taken in its entirety," we rejected this analysis years ago in Penn Central . . . where we held that a claimant's parcel of property could not first be divided into what was taken and what was left for the purpose of demonstrating the taking of the former to be complete and hence compensable. To the extent that any portion of property is taken, that portion is always taken in its entirety; the relevant question, however, is whether the property taken is all, or only a portion of the parcel in question. Accord, Keystone Bituminous . . . . [Alterations in original.] [Citations omitted.]
 
Id. at 643-44, 113 S. Ct. at 2290, 124 L. Ed. 2d 539; accord Clajon Prod. Corp. v. Petera, 70 F.3d 1566, 1577 (10th Cir. [*530] 1995) ("Regulatory taking jurisprudence 'does not divide a single parcel into discrete segments and attempt to determine whether rights in a particular segment[***81] have been entirely abrogated.'" (quoting Penn Central, 438 U.S. at 130, 98 S. Ct. at 2662, 57 L. Ed. 2d 631)); Tabb Lakes, Ltd. v. United States, 10 F.3d 796, 802 (Fed. Cir. 1993) ("Clearly, the quantum of land to be considered is not each individual lot containing wetlands . . . . If that were true, the Corps' protection of wetlands via a permit system would, ipso facto, constitute a taking in every case where it exercises its statutory authority."); cf.  Andrus v. Allard, 444 U.S. 51, 65-66, 100 S. Ct. 318, 327, 62 L. Ed. 2d 210 (1979) ("The denial of one traditional property right does not always amount to a taking. At least where an owner possesses a full 'bundle' of property rights, the destruction of one 'strand' of the bundle is not a taking, because the aggregate must be viewed in its entirety." n22 

n22 The Supreme Court in Concrete Pipe has mixed principles it created for some federal "takings" cases relating to real property with a personal property "takings" case. We believe, however, that there could well be different principles applicable in respect to personal property "takings" issues. The case sub judice relates to the regulation of real property and we need not address the "taking" of personal property.

[***82]

   The town in Quirk v. Town of New Boston, 140 N.H. 124, 663 A.2d 1328 (1995), amended its zoning ordinance while Quirk was in the process of seeking subdivision approval for additions to an existing camping ground. One amendment required a 200-foot "buffer" for campgrounds, prescribing that the outer 100 feet of the buffer stay in its natural condition. Quirk challenged the provision on several bases including "takings" claims.

   The New Hampshire Constitution contained a provision, not specifically found in the Maryland Constitution or the United States Constitution, which provided that "no part of a man's property shall be taken from him, or applied to public uses, without his own consent, or that of the representative body of the people." Id. at 130, 663 A.2d at 1332. After noting that "[a] reasonable zoning ordinance, therefore, effects an unconstitutional [*531] taking only if its application 'to a particular parcel denies the owner an economically viable use of his or her land,'" the New Hampshire Supreme Court noted that the owner considered only the 200-foot wide "buffer" area to be the property affected for unconstitutional taking purposes.  Id. at 130-31, 663 A.2d at 1332[***83] (quotation omitted). The court disagreed:

   Focusing on a discrete portion of a larger tract may be appropriate where the land owner has fragmented the property for distinct development or uses. See, e.g., Penna. Coal Co. v. Mahon, [**1025] 260 U.S. 393, 414-15, 43 S. Ct. 158, 160, 67 L. Ed. 322 (1922) (surface rights distinguished from mining rights); Loveladies Harbor, Inc. [v. United States, 28 F.3d [1171] at 1174 (land developed or sold before regulatory environment existed not considered part of property affected by permit denial). . . .

   In the present case, we find no compelling reason to view the perimeter as a discrete segment of the campground. . . .

   . . . Accordingly, we uphold the trial court's determination that no constitutional taking occurred.
 
Id. at 131, 663 A.2d at 1332-33. See also State Dep't of Envtl. Reg. v. Schindler, 604 So. 2d 565 (Fla. Dist. Ct. App.), review denied, 613 So. 2d 8 (Fla. 1992); K & K Constr., Inc., v. Department of Natural Resources, 456 Mich. 570, 575 N.W.2d 531, cert. denied, 525 U.S. 819, 119 S. Ct. 60, 142 L. Ed. 2d 47 (1998); American Dredging Co. v. State Dep't of Envtl. Protection, 169 N.J. Super. 18, 404 A.2d 42 (App. Div. 1979);[***84] Zealy v. City of Waukesha, 201 Wis. 2d 365, 548 N.W.2d 528 (Wis. 1996); Richard C. Ausness, Regulatory Takings and Wetland Protection in the Post-Lucas Era, 30 Land & Water L. Rev. 349, 409- 11 (1995); Merriam, supra, at 374 ("With the exception of the Scalia dictum in Lucas, the Court has uniformly taken the view that the denominator in regulatory takings cases should be viewed expansively, both to afford government regulators deference and to avoid a mode of analysis in which virtually every government regulation could be viewed as a [*532] taking."). n23 The creation of the "rough proportionality" standard for exactions in Dolan did not affect the "nonsegmentation" principles established by Penn Central, Keystone Bituminous, Concrete Pipe and their progeny, which limit the geographic extent of regulatory takings analysis. The trial court in the case sub judice should have applied the regulatory takings analysis to at least the entire final phase of appellees' subdivision, rather than only the part affected by the conditions incorporated in Resolution R-47-95.

n23 For a history of statutory dedication, exaction and impact fees, see David L. Callies & Malcolm Grant, Paying for Growth and Planning Gain: An Anglo-American Comparison of Development Conditions, Impact Fees, and Development Agreements, in Exactions, Impact Fees and Dedications 357 (Robert H. Freilich & David W. Bushek eds., 1995).

[***85]
 
III. Conclusion

   The trial judge utilized an "exactions" standard from Dolan in reversing the decision of the City Council. In doing so, he erred. As we have indicated, supra , the facts of the present case do not support that the City has exacted anything from appellees by subdivision dedication or otherwise. The conditions imposed on the subdivision as a part of the City's subdivision approval process were, for the most part, agreed upon in 1976, and were, as finally imposed in 1995 pursuant to the design review provisions then in effect, limitations on the use of a part of the entire final phase of the three-phase subdivision project. There is no evidence that appellees were deprived of all remaining economically viable uses for the third phase of the subdivision. n24 Based on the facts of this case, and the issues, as presented, we perceive no unconstitutional taking of appellees' property. Accordingly, we reverse.

n24 See supra note 19.

    JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL [***86]  COUNTY REVERSED; COSTS TO BE PAID BY APPELLEES. 

ROBERT E. KOCH et al. v. RICHARD D. STRATHMEYER et al. 
No. 126, September Term, 1997
 
COURT OF APPEALS OF MARYLAND
 
357 Md. 193; 742 A.2d 946; 1999 Md. LEXIS 815

 December  21, 1999, Filed

   PRIOR HISTORY:  [***1]
Certiorari to the Court of Special Appeals (Circuit Court for  Anne Arundel  County). Lawrence H. Rushworth, JUDGE.

DISPOSITION: JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED. PETITIONERS TO PAY COSTS. 
CASE SUMMARY 

PROCEDURAL POSTURE:  Appellants, in an action for declaratory judgment, injunction and damages, sought review of the judgment of the Court of Special Appeals (Maryland), which affirmed the judgment of the trial court that appellees had an implied easement over a road from their properties to a public waterway.

OVERVIEW:  The parties common grantor created a road through the center of all of the lots conveyed. The road was used as a boundary in every original conveyance, and every lot conveyed abutted the road. The road extended from the county road down to the edge of the creek. The creek was a public navigable waterway. The trial court held that appellees had an implied easement from the public road to the creek, enjoined the appellants from interfering therewith and rendered judgment in favor of the appellants on the issue of damages. The appellate court affirmed. The issue presented on further appeal was whether the grantor's creation of a road bounding all lots in a waterfront subdivision which led from the public road directly to the water was sufficient evidence of the grantor's intent to establish an implied easement to the water. Judgment affirmed because the general rule of implied easements extended to the next street or public way and the creek was a public way which was an essential in a waterfront community in order to support the full use and enjoyment of the property.

OUTCOME:  Judgment affirmed because the general rule of implied easements extended to the next street or public way and the creek was a public way which was an essential in a waterfront community in order to support the full use and enjoyment of the property.

 CORE TERMS:  foot road, waterfront, grantor, water, street, easement, plat, interior, implied easement, right-of-way, conveyed, deed, general rule, contiguous, present-day, public way, roadway, unrecorded, beach, east side, recorded, purchasers, waterway, closest, metes, designated, assurances, bordering, original grantees, right of way

CORE CONCEPTS -  

Real Property Law: Estates, Titles & Rights: Easements & Rights of Way
The standard of proof necessary to establish an implied easement, under circumstances like these, is the clear manifestation of the intent of the common grantor. Intention is a question of fact, and the surrounding circumstances of the case must be analyzed in order to truly understand an unexpressed intention concerning the intention to adopt a general scheme of development.

Real Property Law: Estates, Titles & Rights
By operation of law, when the grantor conveyed the property by a metes and bounds description naming the road as a boundary, each lot owner acquired fee simple title up to the center of the road contiguous to his or her property. Md. Ann. Code art. 21, § 114 (1939). The statute merely extends a presumption that was recognized at common law.

Real Property Law: Estates, Titles & Rights: Easements & Rights of Way
When a property owner subdivides property and makes or adopts a plat designating lots as bordering streets, and then sells any of those lots with reference to the plat, an implied easement of way passes from the grantor to the grantee over the street contiguous to the property sold.

Real Property Law: Estates, Titles & Rights: Easements & Rights of Way
The general rule regarding implied easements over roads bordering property conveyed is that the easement only exists until it reaches some other street or public way.

Real Property Law: Estates, Titles & Rights: Easements & Rights of Way
When a common grantor sells land designated as lots and streets within a municipality, there is a rebuttable presumption that the grantor intended two results: (1) to offer to dedicate the streets to public use; (2) regardless of whether or not the offer of dedication is accepted by the municipality, to grant the purchasers an implied right-of-way over the streets contiguous to their lots to the next closest street or public way.

Real Property Law: Estates, Titles & Rights: Easements & Rights of Way
Under the general rule of implied easements over roads contiguous to lots conveyed, the scope of the easement is limited to the next street or public way. 

Real Property Law: Estates, Titles & Rights: Water Rights
There is a unique relationship between a waterfront development and the water, because there is naturally a dependence, if indeed we should not say that access to the water is an essential, for in that access lies the purpose of the settlement and the purchase of lots in it.

Real Property Law: Estates, Titles & Rights: Easements & Rights of Way
The purpose of the general rule of implied easements over contiguous ways is to assure each property owner full use and enjoyment of his property. The limitation of this rule, to the next street or public way, was designed to protect the retained property of the common grantor from both the purchasers as well as the general public.

COUNSEL: ARGUED BY Frederick C. Sussman (Council, Baradel, Kosmerl & Nolan, P.A., on brief) of Annapolis, MD, FOR PETITIONERS.
 
ARGUED BY Thomas J. Kennedy of Baltimore, MD, FOR RESPONDENT.

JUDGES: ARGUED BEFORE Bell, C.J.; Eldridge, Rodowsky, * Chasanow, Raker, Wilner, and Cathell, JJ. Opinion by Eldridge, J. 

* Chasanow, J., now retired, participated in the hearing and conference of this case while an active member of this Court but did not participate in the decision and adoption of this opinion.

OPINIONBY: ELDRIDGE

OPINION: [*194] [**946]
 
Opinion by Eldridge, J.
 
Filed: December 21, 1999

   We granted a petition for writ of certiorari in this case to decide whether two interior lot owners enjoy an implied easement over a 16 foot road which bisects the property of two waterfront lot owners.
 
I.

   In the Anne Arundel County waterfront subdivision formerly known as "Lerch's [**947] Point," there are four lots. On the west side of the subdivision, there are two waterfront lots owned by [*195] the petitioners (Mr. and Mrs. Koch and Mr. Brewer). Behind the petitioners' waterfront lots, on the east side of the community, there are two interior lots owned by the respondents (Mr. and Mrs. Strathmeyer and Mr. and Mrs. Hantske). A road, sixteen feet in width, runs between the Strathmeyer and Hantske lots on the east side of the community and [***2]continues between the Koch and Brewer lots leading west all the way to the water. The respondents, owners of the interior lots, claim that they have an easement over that road, between the two waterfront lots, so that they can access the water. The petitioners assert that the interior lot owners' easement does not extend west to the water, but that it is limited to ingress and egress from the interior lots to the public road on the east side of the community.

   The land that became this waterfront subdivision originally belonged to George Hazard. Hazard created the subdivision which he called "Lerch's Point" by having a plat of the property prepared in 1940. Although this plat was never recorded, Hazard began conveying away the land piecemeal according to the unrecorded plat. Hazard's original subdivision consisted of seven lots. Over time, those seven lots have been consolidated into the four lots presently owned by the parties in this case. The present-day waterfront lots, owned by the Koches and Mr. Brewer, were originally conveyed as four lots. The two lots directly abutting the water were conveyed first in 1940, and the two directly behind them were conveyed in 1941. The present-day[***3] interior lots, owned by the Strathmeyers and the Hantskes, were originally conveyed as three lots: two in 1948 and one in 1950.

   All four of the original deeds conveying the land which became the waterfront Koch and Brewer properties describe the lots in metes and bounds using the "16 foot road" as a boundary. From reading all four of the deeds, it is clear from the metes and bounds descriptions that the road runs between the present-day Koch and Brewer lots, leading from the shore of Lerch's Creek (formerly Gales Creek) on the west to the remainder of the property retained by Hazard on the east. [*196] All of the deeds refer to "the unrecorded plat of Lerch's Point."

   Today, the Koch and Brewer properties (the waterfront lots) are bisected by the 16 foot road, covered in gravel, up to a point 85 feet from Lerch's Creek. The shoreline in front of both properties is bulkheaded. From the bulkhead up to the gravel portion, the "road" is covered in grass, with the Koch and Brewer properties visibly blending into one another.

   Behind the Koch and Brewer lots, on the interior of the community, the 16 foot road then bisects what are now the two interior lots, owned by the Strathmeyers and the[***4] Hantskes. The Strathmeyers' lot, which is directly behind the Koches' lot, was originally conveyed as two lots by a single deed in 1948. This deed also uses the 16 foot road as a boundary in the metes and bounds description, separating the present-day Strathmeyer lot on the north from the present-day Hantske lot on the south. Finally, this deed also refers to "the unrecorded plat of Lerch's Point."

   After conveying away the land that became the Strathmeyer lot, Hazard conveyed his remaining interest in the property in 1950. This remainder, the present-day Hantske lot, is located directly behind Mr. Brewer's lot and directly across from the Strathmeyers' lot. Although this deed does not reference the unrecorded plat, it uses the 16 foot road as a boundary separating the present-day Hantske lot from the present-day Strathmeyer lot. The wording of the deed is unique in that it describes the road as "a 16 foot right of way (with use in common)." Finally, it is clear from the language of this deed that the 16 foot road ends on the east edge of the Strathmeyer and Hantske properties, where it intersects with a 20 foot-wide [**948] road. The 20 foot road runs north and south along the east edge of[***5] the community and leads to the "County Road" (presently named Church Lane).

   The Strathmeyers and Hantskes filed a two count complaint in the Circuit Court for Anne Arundel County against the Koches and Mr. Brewer. Count I sought a declaratory judgment that the plaintiffs enjoyed an implied easement over the [*197] 16 foot road extending all the way to Lerch's Creek. Count I also sought to enjoin Mr. and Mrs. Koch and Mr. Brewer from interfering with the plaintiffs' right-of-way, including the compelled removal of obstructions which existed in the right-of-way. Count II sought damages from Mr. and Mrs. Koch and Mr. Brewer for alleged interference with the plaintiffs' use of the right-of-way.
 
   The trial court held that the Strathmeyers and Hantskes had an implied easement over the 16 foot road extending from their properties all the way to Lerch's Creek. The court also enjoined Mr. and Mrs. Koch and Mr. Brewer from interfering with the Strathmeyers' and Hantskes' use of the right-of-way, and ordered the removal of obstructions from the right-of-way. As to Count II of the complaint, the trial court entered judgment in favor of the defendants.

   The Koches and Mr. Brewer appealed the adverse[***6] judgment under Count I to the Court of Special Appeals, which, in an unreported opinion, affirmed. Mr. and Mrs. Koch and Mr. Brewer filed in this Court a petition for a writ of certiorari which we granted.  Koch v. Strathmeyer, 348 Md. 525, 704 A.2d 1245 (1998). In the certiorari petition, the following questions were presented:

   "1. Must the existence of an implied easement be established by clear and convincing evidence or similar standard of proof?

   "2. Did the Court of Special Appeals err in not reversing the Trial Court's judgment as to Count I of the Complaint when the Trial Court was clearly erroneous in finding that Plaintiffs had proven the 'clear manifestation' of the intent of the common grantor and the expectations of the original grantees necessary to establish that Plaintiffs now enjoy an implied easement to obtain access to Lerch Creek over an unimproved portion of a 16' right-of-way?"

   II.

   We shall answer the two questions as one. The real issue presented to this Court is whether the creation of a "16 foot [*198] road" bounding all seven original lots in a waterfront subdivision, and leading from the public road directly to the water, is sufficient evidence[***7] of the "clear manifestation" of the common grantor's intent necessary to establish that the present interior lot owners enjoy an implied easement to the water over that 16 foot road. We shall hold that it is.

   The standard of proof necessary to establish an implied easement, under circumstances like these, is the "clear manifestation" of the intent of the common grantor. Williams Realty Co. v. Robey, 175 Md. 532, 539, 2 A.2d 683, 686 (1938). As this Court stated in Scholtes v. McColgan, 184 Md. 480, 489, 41 A.2d 479, 483-484 (1945), intention "is a question of fact," and the surrounding circumstances of the case must be analyzed in order to truly understand an unexpressed intention.  Turner v. Brocato, 206 Md. 336, 351, 111 A.2d 855, 863 (1955) (concerning the intention to adopt a general scheme of development).

   The facts are undisputed. When George Hazard, the common grantor, conveyed the land then known as "Lerch's Point," he created a 16 foot road through the center of all seven lots. The road was used as a boundary in every original conveyance, and every lot conveyed abutted the road. The lots and the road were depicted in a plat[***8] adopted by the common grantor and referenced in all but one of the original conveyances. The road itself extended [**949] from a 20 foot road which led to the "County Road," through all the lots, and down to the edge of the water, then known as "Gales Creek." The existence, location, and size of this road is undisputed.

   By operation of law, when Hazard conveyed the property by a metes and bounds description naming the 16 foot road as a boundary, each lot owner acquired fee simple title up to the center of the road contiguous to his or her property. Maryland Code (1939), Art. 21, § 114 n1; Callahan v. Clemens, 184 Md. 520, 526, 41 A.2d 473, 476 (1945) ("the [*199] statute merely extends a presumption that was recognized at common law"). In addition, the law in this State is well settled that, when a property owner subdivides property and makes or adopts a plat designating lots as bordering streets, and then sells any of those lots with reference to the plat, an implied easement of way "passes from the grantor to the grantee . . . over the street contiguous to the property sold." Mullan v. Hochman, 157 Md. 213, 221, 145 A. 554, 557 (1929). See Atlantic Constr. Corp. v. Shadburn, 216 Md. 44, 52, 139 A.2d 339, 343-344 (1958); [***9]Beale v. Takoma Park, 130 Md. 297, 306, 100 A. 379, 382 (1917); Baltimore v. [**950] Frick, 82 Md. 77, 83, 33 A. 435, 436 (1895); Hawley v. Baltimore, 33 Md. 270, 280 (1870); Moale v. Baltimore, 5 Md. 314, 321 (1854); White v. Flannigain, 1 Md. 525, 540 (1852). The parties do not deny that an easement over the road in favor of all lot owners exists. Their dispute lies in the scope of that easement. The petitioners assert that it is limited to ingress and egress between the individual lots and the public road, and the respondents insist that it also exists to provide their property with water access.

n1 Presently Maryland Code (1974, 1996 Repl. Vol.), § 2-114 of the Real Property Article.

   The general rule regarding implied easements over roads bordering property conveyed is that the easement only exists "until it reaches some other street or public way." Hawley v. Baltimore, supra, 33 Md. 270, 280. See Hackerman v. Baltimore, 212 Md. 618, 624-625, 130 A.2d 732, 736 (1957);[***10] Mullan v. Hochman, supra, 157 Md. 213, 221, 145 A. 554, 558; Baltimore v. Frick, supra, 82 Md. 77, 85, 33 A. 435, 436.

   In order to understand the general rule and its intended application, it is necessary to discuss the facts surrounding this Court's previous cases applying the rule. In Hawley v. Baltimore, the common grantor sold several lots bordering on Mosher Street, lying between Madison and McCulloh Streets in Baltimore City, but he retained property along Mosher Street on the other side of McCulloh up to the intersection of Mosher and Druid Hill Avenue. When the City condemned Mosher Street between Madison and Druid Hill Avenue, the [*200] common grantor sought damages from the City. The City argued that the common grantor was entitled to nominal damages only because he had dedicated his entire interest in Mosher Street when he conveyed the lots between Madison and McCulloh Streets. This Court held in favor of the common grantor because, "based upon the doctrine of implied covenants," the purchasers of the lots had acquired a right of way over Mosher Street only between Madison and McCulloh Streets, and to that extent only was there a dedication[***11] of Mosher Street to public use.  Hawley, 33 Md. at 280. In every other case cited above, the facts were similar.

   In each case applying the general rule, the common grantor sold land designated as lots and streets within a municipality. By doing so, there was a rebuttable presumption that the grantor intended two results: (1) to offer to dedicate the streets to public use; (2) regardless of whether or not the offer of dedication was accepted by the municipality, to grant the purchasers an implied right-of-way over the streets contiguous to their lots to the next closest street or public way. See Hackerman, 212 Md. at 624-625, 130 A.2d at 735- 736; Mullan, 157 Md. at 220-221, 145 A. at 557-558; Frick, 82 Md. at 83-85, 33 A. at 436- 437; Hawley, 33 Md. at 280. The cases do not discuss any limitation on the direction of the implied right-of-way, but only limit its length. For example, in Hawley, the lot owners could use Mosher Street to access either McCulloh or Madison Street, because they were both the next closest public streets, on either side of their lots. See Hawley, 33 Md. 270;[***12] Hackerman, 212 Md. 618, 130 A.2d 732, Mullan, 157 Md. 213, 145 A. 554; Frick, 82 Md. 77, 33 A. 435.

   In accord with our previous holdings, if "Lerch's Creek" were actually "Lerch Street," there would be no doubt that all lot owners would enjoy an easement over the 16 foot road in order to access the "County Road" on one side and "Lerch Street" on the other. See Hawley, 33 Md. 270; Frick, 82 Md. 77, 33 A. 435. The question before this Court becomes what is the effect of the existence of the navigable waterway, as opposed to a roadway, at one end of the community. The petitioners claim the effect of the waterway is to cut off the [*201] interior lot owners' easement at the border of the waterfront lots. They argue that the County Road, being on the east side of the community, closest to the interior lots, is the next closest "street or public way." Hawley, 33 Md. at 280. Therefore, they argue, the easement should be limited to ingress and egress between the individual lots and the County Road. The respondents claim that Lerch's Point, as a waterfront community, is not within the general rule [***13]applied in the above-cited cases, but is, instead, within an exception to that rule under this Court's previous holdings in Klein v. Dove, 205 Md. 285, 107 A.2d 82 (1954), and Williams Realty Co. v. Robey, 175 Md. 532, 2 A.2d 683 (1938).

   The implied easement in this case does extend all the way to the water, not because it fits within any exception to the general rule, but because it follows the general rule. Under the general rule of implied easements over roads contiguous to lots conveyed, the scope of the easement is limited to the next "street or public way." Hawley, 33 Md. at 280. Lerch's Creek, a public navigable and tidal waterway, is owned and maintained by the State. Unlike private land owned by a third party, Lerch's Creek is a "public way." As a result, the fact that "Lerch's Point" is bounded on one side by a public waterway rather than a roadway does not affect the operation of the rule. All lot owners with property abutting the 16 foot road enjoy an implied easement over that road in order to access the County Road on the east side and to Lerch's Creek on the west side.

   Klein and Williams, the cases cited by the[***14] respondents in favor of the existence of the right-of-way to the water, are somewhat distinguishable. In Klein, the interior lots did not abut the right-of-way at issue. As a result, the Court looked beyond the general rule of implied easements over contiguous roadways in order to understand the intent of the common grantor. In that case, the evidence showed that the original grantees relied upon a recorded plat in which the original owner expressly reserved ownership and control of all of the streets and roads within the development against dedication to the public and "for the exclusive and mutual use and benefit of [*202] the owners of the lots abutting on said Streets and Roads." Klein, 205 Md. at 289, 107 A.2d at 84. The right-of-way at issue ran from the "main road" of the development to the "lake area," all of which was clearly designated on the recorded plat. 205 Md. at 291, 107 A.2d at 85. Although the "lake area" was not designated as a "community beach" on the recorded plat, this Court found that there was no other purpose for the 10 foot right-of-way other than to provide owners of the interior lots "access to boating, bathing, swimming, and fishing. [***15] " 205 Md. at 291, 107 A.2d at 85. The intention of the common grantor to grant access to the beach for the "mutual use and benefit" of the entire community was clear, based upon the recorded plat and the nature of the [**951] property itself. After all, this Court said, a waterfront development can only be a waterfront development with a waterfront. Klein, 205 Md. at 292, 107 A.2d at 86. 

   Williams also did not involve a right of way contiguous to the plaintiffs' property. In Williams, the property at issue was the beach contiguous to the water. As a result, the rule regarding implied easements over roadways was irrelevant. Based upon the elements of equitable estoppel, this Court affirmed an injunction to prevent the repudiation of both verbal and written assurances made to the lot purchasers. Williams, 175 Md. at 540, 2 A.2d at 686. Testimony was presented in the trial court establishing that the original grantees bought their property in reliance upon an unrecorded plat shown to them by the sales agent. This unrecorded plat contained a "Community Beach and Park," which the sales agent represented would be kept open for the exclusive[***16] use of lot owners in the community. The deeds also made reference to the "community beach." Based upon the verbal assurances of the sales agents, as well as the reference to the community beach in the lot owners' deeds, this Court found that access to the water was the reason the owners purchased the lots in that community.  175 Md. at 539, 2 A.2d at 686. As a result, equity prevented the "repudiation" of such assurances, and the owners of the park were enjoined from creating a public [*203] resort and night club on the land.  175 Md. at 540, 2 A.2d at 686.

   Although the development at issue in the case at bar is also a waterfront community, there is no need to depart from the general rule of implied easements over ways bounding property conveyed. In fact, the nature of the property encourages the application of the rule rather than a departure from it. As this Court made clear in Williams, 175 Md. at 539, 2 A.2d at 686, there is a unique relationship between a waterfront development and the water, because "there is naturally a . . . dependence, if indeed we should not say that access to the water is an essential, for in that access lies the purpose[***17] of the settlement and the purchase of lots in it."

   The purpose of the general rule of implied easements over contiguous ways is to assure each property owner "full use and enjoyment of his property." Boucher v. Boyer, 301 Md. 679, 694, 484 A.2d 630, 638 (1984). The limitation of this rule, to the next "street or public way," was designed to protect the retained property of the common grantor from both the purchasers as well as the general public. See Hackerman, 212 Md. 618, 130 A.2d 732; Mullan, 157 Md. 213, 145 A. 554; Frick, 82 Md. 77, 33 A. 435; Hawley, 33 Md. 270. In the case at bar, the next "public way" on the west side of the community is a waterway. As this Court explained in Williams, access to the water may be "an essential" in a waterfront community. Although such access may not always be the intent of the common grantor, the facts in this case unequivocally support the only reasonable interpretation of the actions of the common grantor. George Hazard conveyed every lot in the community as bounding on the roadway. The roadway bisected the development and extended all the way to the[***18] water. In order to support the "full use and enjoyment" of the property at issue, it is only logical to conclude that the interior lot owners enjoy an implied easement over the 16 foot road all the way to the water.

   JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED. PETITIONERS TO PAY COSTS. 

PETER P. HERRERA v. STATE OF MARYLAND 
No. 46, September Term, 1998
 
COURT OF APPEALS OF MARYLAND
 
357 Md. 186; 742 A.2d 517; 1999 Md. LEXIS 813

 December  20, 1999, Filed

   PRIOR HISTORY:  [***1] Appeal from the Circuit Court for  Anne Arundel  County. Robert H. Heller, JUDGE.

DISPOSITION: JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AFFIRMED. 
CASE SUMMARY 

PROCEDURAL POSTURE:  Appellant challenged an order of the Circuit Court for Anne Arundel County (Maryland) denying appellant's motion for modification or reduction of his sentence for first degree murder.

OVERVIEW:  The lower court denied appellant's motion for modification or reduction of his sentence for first-degree murder. Appellant alleged error, claiming that actions taken by state parole agencies and officials changed his sentence of life imprisonment to a sentence of life imprisonment without the possibility of parole, violating the ex post facto clauses of the federal and state constitutions. Specifically, the Commissioner of Correction's 1994 directive that any inmate serving a life sentence not be confined below medium security would not have allowed appellant to complete the work release and family visitation programs necessary before being eligible for parole. Also, the Governor's 1995 directive to the Maryland Parole Commission (Commission) not to recommend to him the parole of inmates serving life imprisonment left appellant ineligible for parole. The court affirmed the lower court's judgment because corrective orders from the federal district court and state statutes, respectively, corrected these two problems.

OUTCOME:  Denial of appellant's motion to modify sentence was affirmed because state parole officials' actions effectively denying parole to inmates serving life sentences were corrected by operation of state statute and by federal district court order. There was no implication of the ex post facto clause requiring relief.

CORE TERMS:  parole, inmate, sentence, serving, sentenced to life imprisonment, eligible, life sentence, modification, visitation, reduction, guidelines, announced, recommend, paroled, approve, sentence of life imprisonment, life imprisonment, revisory power, ex post facto, motion filed, announcement
 
CORE CONCEPTS -  

Criminal Law & Procedure: Sentencing: Correction, Modification & Reductions
Md. R. 4-345(b) provides as follows: (b) Modification or reduction -- Time for. The court has revisory power and control over a sentence upon a motion filed within 90 days after its imposition (1) in the District Court, if an appeal has not been perfected, and (2) in a circuit court, whether or not an appeal has been filed. Thereafter, the court has revisory power and control over the sentence in case of fraud, mistake, or irregularity, or as provided in section (d) of this Rule. The court may not increase a sentence after the sentence has been imposed, except that it may correct an evident mistake in the announcement of a sentence if the correction is made on the record before the defendant leaves the courtroom following the sentencing proceeding.

Criminal Law & Procedure: Postconviction Proceedings: Parole
In Maryland, an inmate is required to complete a program of work release and family visitation before being paroled or recommended for parole.

Criminal Law & Procedure: Postconviction Proceedings: Parole
The Maryland Parole Commission must apply the pertinent statutory factors and recommend to the Governor for parole those inmates sentenced to life imprisonment who are eligible for parole and who, in the Commission's judgment, should be paroled.

Criminal Law & Procedure: Sentencing: Correction, Modification & Reductions
Criminal Law & Procedure: Appeals
Maryland's Post Conviction Procedure Act, Md. Ann. Code, art. 27, § 645A(e)(1957, 1996 Repl. Vol.), does not prohibit an appeal from a denial of a motion under Md. R. 4-345.

COUNSEL: ARGUED BY Alan Hilliard Legum (Alan Hilliard Legum, P.A. on brief) of Annapolis, MD, FOR APPELLANT.
 
ARGUED BY Richard B. Rosenblatt, Assistant Attorney General on brief) of Baltimore, MD, FOR APPELLEE.

JUDGES: ARGUED BEFORE Bell, C.J.; Eldridge, Rodowsky, Chasanow *, Raker, Wilner, and Cathell, JJ. 

* Chasanow, J., now retired, participated in the hearing and conference of this case while an active member of this Court but did not participate in the decision and adoption of this opinion.

OPINION: [*186] [**517]
 
Per Curiam

   On May 14, 1987, in the Circuit Court for Anne Arundel County, Peter P. Herrera pled guilty to first degree murder and certain lesser offenses. He was sentenced to life imprisonment on July 30, 1987. Under the law, he was eligible for [*187] parole after serving 15 years or the equivalent of 15 years considering the allowances for diminution of an inmate's term. A Parole Commission recommendation in favor of parole would be subject to the Governor's approval.

   Within 90 days of his sentence, Herrera filed a motion under Maryland Rule 4-345(b) for modification or reduction of his sentence. n1 No action on this motion was [**518] taken for over 10 years. Finally, on December 15, 1997, a hearing on the motion was held. The Circuit Court for Anne Arundel County denied the motion on January 19, 1998. Herrera took a timely appeal from the denial [***2]of the motion, and, before any proceedings in the Court of Special Appeals, this Court issued a writ of certiorari.  Herrera v. Stae, 350 Md. 279, 711 A.2d 871 (1998).

n1 Rule 4-345(b) provides as follows:

   "(b) Modification or reduction -- Time for. The court has revisory power and control over a sentence upon a motion filed within 90 days after its imposition (1) in the District Court, if an appeal has not been perfected, and (2) in a circuit court, whether or not an appeal has been filed. Thereafter, the court has revisory power and control over the sentence in case of fraud, mistake, or irregularity, or as provided in section (d) of this Rule. The court may not increase a sentence after the sentence has been imposed, except that it may correct an evident mistake in the announcement of a sentence if the correction is made on the record before the defendant leaves the courtroom following the sentencing proceeding."

   Herrera argues that certain actions by the Commissioner of Correction, the [***3]Maryland Parole Commission, and the Governor have effectively changed his sentence of life imprisonment to a sentence of life imprisonment without the possibility of parole, and that such change violates the ex post facto clauses of the federal and state constitutions. See Article 1, § 10, cl. 1, of the Constitution of the United States, and Article 17 of the Maryland Declaration of Rights.

   The challenged acts by the Parole Commission and the Commissioner of Correction were as follows. It was the policy of the Parole Commission and the Commissioner that an inmate was required to complete a program of work release and family visitation before being paroled or recommended for [*188] parole. The Commissioner of Correction in December 1994 directed that any inmate serving a life sentence should not be confined below medium security, which meant that such an inmate was not eligible for a work release program or family visitation. Consequently, an inmate serving a life sentence would not be considered for parole. As we discussed in State v. Kanaras, 350 Md. 280, 711 A.2d 871 (1998), which was filed today, the United States District Court for the District of Maryland, in [***4] Knox v. Lanham, 895 F. Supp. 750 (D. Md. 1995), aff'd, 76 F.3d 377 (4th Cir. 1996), ordered the Parole Commission and the Commissioner of Correction to adopt a program so that inmates, who are sentenced to life imprisonment with eligibility for parole, are given parole consideration.
 
   The action by the Governor, of which Herrera complains, is that the Governor in 1995 announced guidelines which he would use in determining whether he would approve parole for inmates serving life sentences. The Governor stated that he would not approve parole for any inmates sentenced to life imprisonment unless they were very old or terminally ill. The Governor also announced that he had directed the Parole Commission not to recommend to him the parole of inmates serving life imprisonment. Recently in Lomax v. Warden, 356 Md. 569, 741 A.2d 476, 1999 Md. LEXIS 652, this Court held that the Governor's announcement of his guidelines, for approving the parole of inmates serving terms of life imprisonment, did not constitute a change in the law within the meaning of the ex post facto clauses of the federal and state constitutions. We further held, however, that the Governor's directive to[***5] the Parole Commission could not be given effect. We took the position that the Parole Commission must apply the pertinent statutory factors and recommend to the Governor for parole those inmates sentenced to life imprisonment who are eligible for parole and who, in the Commission's judgment, should be paroled.

   The State has moved to dismiss Herrera's appeal, arguing that under Valentine v. State, 305 Md. 108, 501 A.2d 847 (1985), the Maryland Post Conviction Procedure Act, Code [*189] (1957, 1996 Repl. Vol.), Art. 27, § 645A(e), precludes an appeal from a circuit court's decision on a motion filed under Rule 4-345. The State further argues that, if the order is appealable, the Circuit Court did not abuse its discretion in denying the motion under Rule 4-345(b).

   We shall deny the State's motion to dismiss the appeal. In State v. Kanaras, [**519] supra, we have just held that the Post Conviction Procedure Act does not prohibit an appeal from a denial of a motion under Rule 4-345, and we have overruled Valentine v. State, supra.

   Turning to the merits, however, we shall affirm the judgment of the Circuit Court for Anne Arundel County. Although[***6] the Circuit Court judge, in his discretion under Rule 4-345(b), could have modified Herrera's sentence, he chose not to do so. Under our holdings in Lomax v. Warden, supra, and State v. Kanaras, supra, there was no illegality or infirmity in Herrera's sentence which required the Circuit Court to grant relief under Rule 4-345.

   JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AFFIRMED. 

Gateway Group v. Millham 
Pet. Docket No. 444, September Term, 1999
 
COURT OF APPEALS OF MARYLAND
 
356 Md. 635; 741 A.2d 1096; 1999 Md. LEXIS 847

 December  10, 1999, Decided

NOTICE: 

  [*1]  DECISION WITHOUT PUBLISHED OPINION 

PRIOR HISTORY:  (No. C-1999-54976, Circuit Court for  Anne Arundel  County).

OPINION: Petition for Writ of Certiorari denied. 

CHARLES S. JONES et ux. v. HYATT INSURANCE AGENCY, INC., etal. 
No. 67, September Term, 1997
 
COURT OF APPEALS OF MARYLAND
 
356 Md. 639; 741 A.2d 1099; 1999 Md. LEXIS 800

 December  8, 1999, Filed

   PRIOR HISTORY:  [***1] Certiorari to the Court of Special Appeals (Circuit Court for  Anne Arundel  County). Bruce C. Williams, JUDGE.

DISPOSITION: JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED. PETITIONERS TO PAY COST. 
CASE SUMMARY 

PROCEDURAL POSTURE:  Petitioner tort claimants filed for writ of certiorari to Maryland Court of Special Appeals, which entered judgment against petitioners in their third-party beneficiary contract and tort claims against respondents insurance company and insurance agent.

OVERVIEW:  After judgment was entered in petitioners' tort suit against respondents' client for injuries suffered in an automobile accident, petitioners sued respondent insurance agency in contract as third-party beneficiaries of the contract to procure liability insurance and in tort for negligent failure to procure the insurance. Petitioners' contract action was barred because the statute of limitations began to run as soon as respondent insurance agent's failure to procure insurance for the client was discovered. Petitioners' tort claim was dismissed because petitioners' assumed status as third-party beneficiaries of the contract between respondents and their client to provide insurance did not warrant judicial recognition of a tort duty, an insurer that mistakenly denied coverage did not breach a tort duty owed to either the insured or third-party beneficiaries, and petitioners' suffered only economic loss, but there was no intimate nexus between petitioners and respondent insurance agent.

OUTCOME:  Judgment affirmed because statute of limitations had run on petitioners' third-party beneficiary contract action before they filed suit and petitioners had no viable tort causes of action because respondents owed petitioners no duty independent of contract.

CORE TERMS:  procure, third-party, beneficiary, claimant, duty, insurer, cause of action, insured, statute of limitations, motor vehicle, liability insurance, duty owed, breach of contract, underlying tort, negligently, owed, assignee, broker, tort action, insurance coverage, insurance agent, liability insurer, denies coverage, breached, tort cause of action, insurance policy, contractual, coverage, discovery rule, property damage

CORE CONCEPTS -  

Torts: Insurance Claims: Liability Insurance Coverage
Torts: Procedure: Commencement
Once there is a verdict or judgment in a tort action, a direct action may be maintained against the liability insurer by an injured tort claimant.

Civil Procedure: Pleading & Practice: Defenses, Objections & Demurrers: Affirmative Defenses
See Md. Code Ann., Cts. & Jud. Proc. § 5-101 (1974, 1998 Repl. Vol.).

Civil Procedure: Pleading & Practice: Defenses, Objections & Demurrers: Affirmative Defenses
Contracts Law: Third Parties: Beneficiaries: Claims & Enforcement
It is a well-settled principle that a third-party beneficiary to a contract takes subject to the same defenses against the enforcement of the contract, as such, as exist between the original promisor and promisee. Such defenses include the expiration of the statute of limitations period.

Contracts Law: Breach
In contract cases, the general rule is that the period of limitations begins to run from the date of the breach, for it is then that the cause of action accrues and becomes enforceable. This discovery rule is now generally applicable in civil actions.

Contracts Law: Breach
The determination of when a breach of contract occurs usually depends on the nature of the promises made in the contract and the times for performing those promises. There is a significant difference between an agent's or broker's breach of an agreement to procure insurance and an insurer's breach of a liability insurance policy.

Civil Procedure: Pleading & Practice: Defenses, Objections & Demurrers: Affirmative Defenses
Insurance Law: Automobile Insurance: Defense Obligations
Insurance Law: General Liability Insurance: Coverage Trigger
Determining when a typical liability insurance policy has been breached depends on which promise under the policy the insurer has broken. An insurer's contractual duty to indemnify an insured is ordinarily not breached until an injured tort claimant has obtained a determination of liability and damages in an underlying tort action, and the insurer refuses to pay. The insurer's promise is to indemnify or to pay what its insured is legally obligated to pay. The time for performance is when there is a settlement or a judgment against the insured, and the breach is the insurer's refusal to pay that settlement or judgment. The statute of limitations does not begin to run until that time.

Insurance Law: Automobile Insurance: Defense Obligations
A liability insurer's contractual duty to defend an insured is a continuing duty that runs throughout the course of the underlying tort litigation against the insured. Moreover, a breach of the duty to defend can be cured at any time prior to termination of the underlying litigation.

Torts: Insurance Claims
Insurance Law: Automobile Insurance: Defense Obligations
A contract to obtain insurance is ordinarily breached immediately upon the agent's or broker's failure to procure the insurance in a timely manner. The promise of the agent or broker is not to provide a defense or to pay a judgment. Instead, the promise is to obtain an insurance policy, and the breach occurs when the agent or broker does not timely obtain that policy. This breach cannot be cured after the insurance applicant commits a tort for which he or she rightfully believes that insurance coverage has been obtained. The consequence of the agent's failure to procure the insurance prior to the accidental tort is that the client will not be insured. There will be no insurer-furnished defense or indemnity.

Torts: Insurance Claims
Torts: Negligence: Actions
An assignment of rights does not confer upon the assignee any greater right than the right possessed by the assignor. An assignee is subject to all defenses against the assignor's claim, for obviously, the rights of the assignee are no greater than those of his assignor. Thus, the statute of limitations applies.

Torts: Negligence: Actions
Torts: Negligence: Duty: Determinations
In order to maintain a tort cause of action based on negligence, the plaintiff must first establish that the defendant was under a duty to protect the plaintiff from injury. The existence of a legally cognizable duty owed by the defendant to the plaintiff or a class of persons of which the plaintiff is a member is essential to a cause of action for negligence.

Torts: Negligence: Duty: Determinations
A contractual obligation, by itself, does not create a tort duty. Instead, the duty giving rise to a tort action must have some independent basis.

Torts: Negligence: Duty: Determinations
The mere negligent breach of a contract, absent a duty or obligation imposed by law independent of that arising out of the contract itself, is not enough to sustain an action sounding in tort. For it is only when a breach of contract is also a violation of a duty imposed by law that the injured party has a choice of remedies.

Contracts Law: Breach
Torts: Negligence: Duty: Determinations
Under Maryland law, an insurer which mistakenly denies coverage does not breach a tort duty owed either to the insured or to third-party claimants. Instead, the duty owed to both the insured and to a third-party claimant is entirely contractual. The actions which the insured or the third party claimant are entitled to bring against the insurer denying coverage are ex contractu declaratory judgment actions to determine coverage under the policy or breach of contract actions. In other words, a liability insurer's breach of the insurance contract by erroneously disclaiming coverage gives rise only to a breach of contract action. A liability insurer breaches no tort duty when, upon learning of a claim, it erroneously denies coverage and refuses to undertake any defense against the claim. The court has not recognized any independent tort duty in this situation. Instead, the only action against the insurer is for breach of contract.

Torts: Negligence: Standards of Care: Reasonable Care
Torts: Negligence: Actions
An insurance agent must exercise reasonable care and skill in performing his duties. The agent may become liable in tort to the principal who suffers a loss by the agent's failure to use standard care.

Torts: Negligence: Duty: Determinations
In determining whether a tort duty should be recognized in a particular context, two major considerations are the nature of the harm likely to result from a failure to exercise due care and the relationship that exists between the parties. Where the failure to exercise due care creates a risk of economic loss only, courts have generally required an intimate nexus between the parties as a condition to the imposition of tort liability. This intimate nexus is satisfied by contractual privity or its equivalent. By contrast, where the risk created is one of personal injury, no such direct relationship need be shown, and the principal determinant of duty becomes foreseeability.

Torts: Negligence: Duty: Determinations
Under certain circumstances a third-party beneficiary of a contract between principal and agent, who is identified when the contract is entered into, may bring a tort action against the agent who has made representations to the beneficiary or otherwise assumed a duty owed to the beneficiary.

COUNSEL: ARGUED BY Phillips P. O'Shaughnessy (Robin Frazier Kandel, Phillips P. O'Shaughnessy, P.A., of Baltimore, MD; Joseph A. Miklasz of Glen Burnie, MD) all on brief, FOR PETITIONERS.
 
ARGUED BY David J. McManus, Jr. (Joanne B. Jarquin, Baxter, Baker, Sidle & Conn, P.A., on brief) of Baltimore, MD, FOR RESPONDENTS.

JUDGES: ARGUED BEFORE Bell, C.J.; Eldridge, Rodowsky, Chasanow *, Raker, Wilner, and Cathell, JJ. 

* Chasanow, J., now retired, participated in the hearing and conference of this case while an active member of this Court but did not participate in the decision and adoption of this opinion.

OPINIONBY: ELDRIDGE

OPINION: [**1100] [*641]
 
Opinion by Eldridge, J.

   This is an action by tort claimants against an insurance agency based upon the agency's negligent failure to procure motor vehicle liability insurance for its client. The action arose from an underlying tort suit filed by the claimants against the agency's client, whose employee was involved in a motor vehicle accident during the period in which the client had been uninsured because of the insurance agency's negligence. After judgment was entered against the client in the tort suit, the tort claimants sued the insurance agency in contract as third-party beneficiaries of the contract to procure liability insurance and in tort for negligent failure to procure the insurance. [*642]

   The primary issue before us is whether the statute of limitations for the claimants' cause of action in contract runs[***2] from the time when the claimants and/or the client discovered or should have discovered the agency's negligent breach of contract, or from the time when the claimants obtained a tort judgment against the agency's client. We shall hold that the limitations period for the contract action began to run from the discovery of the agency's breach of contract. In addition, we shall hold that the tort claimants had no viable direct cause of action in tort against the insurance agency because the agency owed them no duty independent of the contract.

   I.

   The petitioners in this case are the tort claimants Charles S. Jones and his wife, Eleanor Jones. The respondents are the Hyatt Insurance Agency, Inc., and John Swem, an employee of Hyatt.

   On July 25, 1985, a motor vehicle driven by Mr. Jones was struck by a motor vehicle driven by Robert Smith, an employee of K&D Auto, Inc. K&D, an automobile parts store located in Anne Arundel County, Maryland, leased the vehicle which Smith was driving. Mr. Jones's vehicle sustained only minor damage, but Mr. Jones claimed that he suffered various personal injuries, including progressively deteriorating neurological damage.

   Twenty days before the accident, [***3] K&D had arranged with Hyatt to obtain liability insurance to meet its various business needs. The negotiations with Hyatt had been conducted over the telephone by Wayne Silfies at the request of K&D's principal officers. Silfies was a life insurance agent who did business with both Hyatt and K&D's principal officers. Silfies referred K&D to Hyatt for a fee paid by the latter. Based on Silfies' conversations with Hyatt's employee Swem, K&D believed that Hyatt had secured motor vehicle liability insurance effective in early July 1985. Soon after notifying Hyatt of Mr. Jones's claim, however, K&D discovered that motor vehicle liability insurance had not been obtained, with [*643] the result that K&D's motor vehicle was not insured until mid-August 1985, three weeks after the accident.

   [**1101] In a letter dated August 12, 1985, Hyatt informed Mr. Jones that "we do not and have not ever carried insurance on commercial vehicles" for K&D and that Hyatt was therefore returning Mr. Jones's estimates of property damage. Allstate Insurance Company, with which Mr. Jones had collision and uninsured motorist coverage, notified K&D in a letter dated August 27, 1985, that because K&D had no insurance at the time[***4] of the accident, Allstate would seek reimbursement for Mr. Jones's pending property damage and personal injury claims directly from K&D. In a letter dated March 6, 1986, Allstate informed K&D that it had paid Mr. Jones for property damage and that it was still awaiting reimbursement from K&D as Hyatt "has given us a definite no in regard to your insurance coverage." At first K&D refused to pay Mr. Jones's claim for property damage, taking the position that Hyatt should pay the claim. Eventually, K&D settled the property damage claim with Allstate for approximately $650.

   On February 8, 1988, Mr. and Mrs. Jones filed in the Circuit Court for Baltimore City a personal injury action against K&D and Robert Smith. Hyatt was not made a party to the action. The Joneses obtained a default judgment against Smith, and K&D stipulated to its liability for Smith's accident on the ground of respondeat superior. On June 21, 1989, after a nonjury trial on damages, a judgment in the amount of $450,000 was entered in favor of Mr. Jones. An additional award of $450,000 was entered in favor of Mr. and Mrs. Jones for loss of consortium. On the same day judgment was entered, K&D assigned to the Joneses[***5] its claim against Hyatt for failing to procure motor vehicle liability insurance in the insurance package which K&D had requested from the agency. Thereafter, Allstate paid Mr. Jones $20,000 under his uninsured motorist coverage.

   On October 6, 1989, about four months after the judgment and assignment, and more than four years after the accident, K&D and the Joneses as assignees filed suit in the Circuit [*644] Court for Anne Arundel County against Hyatt. The complaint alleged that Hyatt was liable for breach of contract and for negligence in failing to procure the insurance which K&D had requested. Allstate intervened as plaintiff, seeking to recover from Hyatt the $20,000 uninsured motorist damages which it had paid to the Joneses. Hyatt filed a third-party complaint against Silfies, alleging that Silfies negligently induced K&D to believe falsely that Hyatt had procured motor vehicle liability insurance. Hyatt moved for summary judgment on the ground that the suit was barred by the three-year statute of limitations governing civil actions set forth in Maryland Code (1974, 1998 Repl. Vol.), § 5-101 of the Courts and Judicial Proceedings Article.

   On December 30, 1991, the circuit court[***6] granted Hyatt's motion for summary judgment against K&D and against the Joneses as K&D's assignees. The court held that K&D was aware of Hyatt's breaches of contractual and tort duties, and had first sustained harm resulting from Hyatt's negligence more than three years before K&D filed suit against Hyatt on October 6, 1989. Moreover, the court held that the Joneses, as K&D's assignees, were subject to the same limitations bar as K&D. The court, however, stated that if the Joneses pursued a "direct action" against Hyatt, instead of relying upon the assignment, their cause of action might not accrue and the statute of limitations might not begin to run until June 21, 1989, the date judgment was entered against K&D in the underlying tort suit.

   Thereupon the Joneses, on January 22, 1992, amended their complaint, claiming that Hyatt was liable to them because the Joneses were third-party beneficiaries of the agreement between K&D and Hyatt to procure motor vehicle liability insurance. The Joneses also asserted that Hyatt was liable to them directly for its negligence in failing to procure the insurance policy. In addition, the Joneses added two defendants: Silfies, whom Hyatt [**1102] had already [***7]sued as a third-party defendant, and Swem, the Hyatt employee who allegedly failed to procure the insurance package which K&D had requested. The defendants moved to dismiss the amended [*645] complaint, arguing that the Joneses had no direct causes of action against them and that, even if they did, such direct causes of action were nonetheless barred by the statute of limitations. The circuit court denied the motions to dismiss in July 1992, holding that "whatever rights the Joneses may have, either as third party beneficiary or otherwise, accrued only after judgment was obtained against K&D."

    The parties then pursued discovery and filed numerous pre-trial motions. n1 In September 1995, the case proceeded to trial solely on the issue of the defendants' liability. The jury returned a special verdict that Hyatt and Swem had negligently broken their promise to procure automobile liability insurance. In addition, the jury found that the independent agent Silfies had not acted negligently. The circuit court entered judgment in favor of the Joneses for $1,440,500, consisting of the $900,000 judgment which the Joneses had obtained against K&D plus pre-judgment interest. n2

n1 Hyatt filed several discovery requests regarding the damages which Mr. Jones allegedly suffered as a result of the accident. When these requests were not answered, Hyatt filed a motion to compel discovery. On January 26, 1994, the circuit court denied Hyatt's motion on the ground that the judgment which the Joneses had obtained against K&D in the underlying tort suit was binding in the litigation between the Joneses and Hyatt.

   Hyatt then filed a motion in limine seeking to exclude evidence of the judgment in the underlying tort suit. The trial judge denied this motion. The judge, however, proposed that if Hyatt and the Joneses stipulated to the amount of the judgment against K&D, the judge would not present the $900,000 amount of the judgment before the jury and thus would avoid the risk of influencing the jury's decision regarding Hyatt's possible liability to the Joneses. Attorneys for both parties agreed to this stipulation at the outset of trial, with the attorney for Hyatt stating that he was reserving his right to raise on appeal the court's decision that the judgment against K&D would be binding on Hyatt if the jury were to find Hyatt liable.

[***8] 

n2 Before the trial court gave the case to the jury, Hyatt requested that the court submit to the jury the issues of whether the Joneses were intended beneficiaries of Hyatt's contractual undertaking with K&D and whether Hyatt owed a duty to Mr. Jones as an unknown future tort victim of K&D. The court declined to submit these requested issues. After the jury returned the special verdicts, Hyatt objected that the stipulated judgment against it should be reduced to $300,000, in the light of undisputed evidence at trial establishing that K&D had asked Hyatt to procure only $300,000 worth of coverage. The court declined to reduce the judgment.

   [*646] The defendants Hyatt and Swem timely noted an appeal to the Court of Special Appeals which, in an unreported opinion, reversed. n3 The intermediate appellate court assumed, without deciding, that the Joneses, as third-party beneficiaries, did at one time have a viable contractual cause of action against Hyatt but held that such cause of action was barred by the statute of limitations. The intermediate appellate court rendered no holding on the Joneses' asserted[***9] negligence cause of action, as its reading of the record suggested that the Joneses' cause of action was entirely contractual, founded upon the third-party beneficiary theory. The Joneses filed a petition for writ of certiorari in this Court, and Hyatt and Swem filed a cross-petition, both of which we granted.  Jones v. Hyatt Insurance, 346 Md. 632, 697 A.2d 915 (1997).

n3 After intervening as a plaintiff, Allstate entered into an agreement with the other parties whereby it would recoup its $20,000 from any judgment in favor of the Joneses. Consequently, Allstate was not mentioned in the special verdict or judgment, and was not a party to the appeal.

   Although both petitioners and respondents raised many issues in their certiorari petitions, we need decide only two of them. We shall affirm the judgment of the Court of Special Appeals and hold that the statute of limitations had run on the third-party [**1103] beneficiary contract action before the Joneses filed suit against Hyatt in October 1989. In addition, [***10]although we read the record as indicating that the Joneses did assert direct tort causes of action against Hyatt and Swem based on negligence, we shall hold that the Joneses had no viable tort causes of action because the defendants owed them no duty independent of the contract.

   II.

   We shall assume, arguendo, that the Joneses had a viable cause of action in contract as third-party beneficiaries of the agreement between Hyatt and K&D for Hyatt to procure motor vehicle liability insurance. We have recognized a similar [*647] third-party beneficiary cause of action in contract when a tort claimant sues the tortfeasor's liability insurer for a declaratory judgment concerning coverage or for breach of the contractual duty to indemnify. See, e.g., Mesmer v. M.A.I.F., 353 Md. 241, 267, 725 A.2d 1053, 1065 (1999); Harford Mutual v. Woodfin, 344 Md. 399, 412-413, 687 A.2d 652, 658-659 (1997), and cases there discussed; Washington Transit v. Queen, 324 Md. 326, 332, 597 A.2d 423, 426 (1991) ("Once there is a verdict or judgment in the tort action, a direct action may be maintained against the liability insurer" by an injured tort claimant). n4[***11] Nevertheless, we agree with the Court of Special Appeals that any contract action which the Joneses had against Hyatt and Swem was barred by limitations. n5

n4 Under the same public policy and contract law analyses underlying the third-party beneficiary cause of action against the insurer, some jurisdictions have recognized a third-party beneficiary cause of action against an agent for breach of the contract to procure liability insurance. See, e.g., Gothberg v. Nemerovski, 58 Ill. App. 2d 372, 385-386, 208 N.E.2d 12, 20 (1965) ("Because of the peculiar significance of automobile liability insurance as well as the provisions of the policy contemplated by the parties . . .," the "plaintiffs can be considered third party beneficiaries of the contract to procure insurance entered into between [the tortfeasor and the agent], that is, they had a sufficient interest in such a contract to bring suit directly for its breach. In entering into this contract to procure insurance, it is a fair and reasonable inference that [the tortfeasor was] contemplating possible injury to unidentified third parties, and the insurance coverage was for the direct benefit of third parties who might be injured through [his] negligence"); Flattery v. Gregory, 397 Mass. 143, 150, 151, 489 N.E.2d 1257, 1262 (1986) (state law "displays the Legislature's view that injured highway travelers are intended beneficiaries of . . . automobile liability insurance"; moreover, "the parties to the insurance policy, or, as in this case, to a contract to procure such a policy, intend the injured third-party . . . to benefit from their contract."). 

[***12] 

n5 The statute of limitations generally applicable to civil actions is Code (1974, 1998 Repl. Vol.), § 5-101 of the Courts & Judicial Proceedings Article, which states:

   "A civil action at law shall be filed within three years from the date it accrues unless another provision of the Code provides a different period of time within which an action shall be commenced."

   It is a well-settled principle that a third-party beneficiary to a contract "takes subject to the same defenses against [*648] the enforcement of the contract, as such, as exist between the original promisor and promisee." Shillman v. Hobstetter, 249 Md. 678, 690, 241 A.2d 570, 577 (1968). See also Assurance Corporation v. Perkins, 169 Md. 269, 284, 181 A. 436, 443 (1935) (tort claimants who have obtained judgments against the insured "have no right superior to that of the assured. They stand in his place, and the same defenses which the insurance carrier had against the right of action on the part of the assured on the policy of insurance are available to the assurer" against the tort claimants). That[***13] such defenses include the expiration of the limitations period was established by this Court in Spates v. Spates, 267 Md. 72, 296 A.2d 581 (1972), which held that the defense of limitations barred suit by a son who was the third-party beneficiary of a separation and property settlement agreement between his parents.

   The statute of limitations on the Joneses' contract claim began to run when the cause of action for breach of contract [**1104] accrued. Under the principles set forth in our cases, the cause of action accrued when Hyatt breached its contract to procure insurance and when the breach was or should have been discovered. See, e.g., Himelfarb v. American Express Co., 301 Md. 698, 703, 484 A.2d 1013, 1015 (1984), quoting Federalsburg v. Allied Con., 275 Md. 151, 157, 338 A.2d 275, 280, cert. denied, 423 U.S. 1017, 96 S. Ct. 452, 46 L. Ed. 2d 389 (1975) ("In contract cases, the general rule is that the period of limitations begins to run from the date of the breach, for it is then that the cause of action accrues and becomes enforceable'"); Wlodarek v. Thrift, 178 Md. 453, 461, 467, 13 A.2d 774, 778, 781 (1940)[***14] ("For every breach of a contract, there is a right of recovery of at least nominal damages. * * * The right of action accrues immediately on the breach"). Since the discovery rule is now generally applicable in civil actions, accrual of the cause of action was postponed until K&D and/or the Joneses knew or should have known of the breach. See Poffenberger v. Risser, 290 Md. 631, 636, 431 A.2d 677, 680 (1981) (holding the discovery rule "applicable generally in all actions and the cause of action accrues when the claimant in fact knew or reasonably should have known of the wrong").

   [*649] The determination of when a breach of contract occurs usually depends on the nature of the promises made in the contract and the times for performing those promises. There is a significant difference between an agent's or broker's breach of an agreement to procure insurance and an insurer's breach of a liability insurance policy. In relying on this Court's past decisions in cases involving insurers' alleged breaches of liability insurance policies, the circuit court and the Joneses ignored this distinction.

   Determining when a typical liability insurance policy has been breached depends[***15] on which promise under the policy the insurer has broken. An insurer's contractual duty to indemnify an insured is ordinarily not breached until an injured tort claimant has obtained a determination of liability and damages in an underlying tort action, and the insurer refuses to pay. The insurer's promise is to indemnify or to pay what its insured is legally obligated to pay. The time for performance is when there is a settlement or a judgment against the insured, and the breach is the insurer's refusal to pay that settlement or judgment. The statute of limitations does not begin to run until that time.  Washington Transit v. Queen, supra, 324 Md. at 333-334, 597 A.2d 423, 426 ("The statute of limitations against the insurer would ordinarily not begin running until the insurer, after a judgment in the underlying tort case, breaches the policy by refusing to pay"). See Vigilant v. Luppino, 352 Md. 481, 487-488, 723 A.2d 14, 17 (1999); Lane v. Nationwide Mut. Ins. Co., 321 Md. 165, 176-177, 582 A.2d 501, 506-507 (1990).

   A liability insurer's contractual duty to defend an insured, however, is a continuing duty that runs throughout[***16] the course of the underlying tort litigation against the insured. Vigilant v. Luppino, supra, 352 Md. at 489, 723 A.2d at 18 (1999) ("the duty to defend, by its very nature, is a continuing one that extends throughout the tort suit by the third party against the insured"). Moreover, a breach of the duty to defend can be cured at any time prior to termination of the underlying litigation.  352 Md. at 492, 723 A.2d at 19 ("An [*650] insured should be allowed to expect the insurer to step in and cure its breach so long as the underlying action is continuing").

   In contrast, a contract to obtain insurance is ordinarily breached immediately upon the agent's or broker's failure to procure the insurance in a timely manner. The promise of the agent or broker is not to provide a defense or to pay a judgment. Instead, the promise is to obtain an insurance policy, and the breach occurs when the agent or broker does not timely obtain that policy. This breach cannot be cured after the insurance applicant commits a tort for which he or she rightfully believes that insurance coverage has been obtained. The consequence of [**1105] the agent's failure to procure the insurance prior to[***17] the accidental tort is that the client will not be insured. There will be no insurer-furnished defense or indemnity.

   Thus, the Joneses' reliance on our cases involving breaches of insurance policies, most notably Washington Transit v. Queen, supra, and Vigilant v. Luppino, supra, is misplaced. The essential difference between the nature of the two contracts, i.e., an insurance policy and an agreement to procure such a policy, necessitates our holding that the statute of limitations on the Joneses' third-party beneficiary cause of action in contract began to run as soon as Hyatt's failure to procure insurance for K&D was discovered. The contract was clearly breached long before the Joneses obtained a judgment against K&D.

   Moreover, both K&D and the Joneses discovered or should have discovered Hyatt's breach of its contract to procure insurance more than three years before the present action was filed. n6 The record shows that within a few days after the July [*651] 25, 1985, accident, John Swem of the Hyatt Insurance Agency informed K&D that its "vehicles were not covered." The Joneses were aware that K&D was uninsured as early as August 1985. For example, [***18] in a letter dated August 12, 1985, Hyatt advised Mr. Jones that "we do not and have not ever carried insurance on commercial vehicles" for K&D and that Hyatt was therefore returning the estimates and letter which Mr. Jones had sent to Hyatt. In an August 27, 1985, letter from Allstate Insurance Company to K&D, Allstate informed K&D that the insurer had paid a property damage claim resulting from the accident, that "since there is no insurance to cover this loss we are looking to you or Mr. Smith personally to pay" Allstate, and that, as to Mr. Jones's larger claim, Mr. Jones wished to "wait a few days and see if your insurance is straightened out" before seeking uninsured motorist coverage from Allstate. Mr. Jones received a check from Allstate issued on September 19, 1985. By letter of March 6, 1986, Allstate told K&D that "Hyatt Insurance has given us a definite no in regard to your insurance coverage." Certainly by this point (more than three years before filing suit against Hyatt in October 1989), K&D and the Joneses were aware, or at least were on inquiry notice, concerning Hyatt's failure to procure motor vehicle liability insurance coverage for K&D.

n6 If K&D had discovered the breach at a significantly earlier time than the Joneses, this Court's holding in Spates v. Spates, 267 Md. 72, 296 A.2d 581 (1972), suggests that limitations would begin to run against the Joneses when K&D discovered the breach. Nevertheless, Spates did not involve the discovery rule, as it was decided before our general adoption of the discovery rule in Poffenberger v. Risser, 290 Md. 631, 431 A.2d 677 (1981). There is case law under the discovery rule holding that the cause of action does not accrue until the third-party beneficiary discovers the breach. See Bemis v. Estate of Bemis, 114 Nev. 1021, 967 P.2d 437 (1998). We need not and shall not resolve this question in the present case because both K&D and the Joneses discovered or should have discovered the breach more than three years before this suit was filed.

[***19]

   The Court of Special Appeals correctly held that the Joneses' third party beneficiary contract cause of action was barred by limitations. n7

 n7 The Joneses argue in their brief in this Court that the issue "of what the Joneses knew or should have known" was for the jury, and that Hyatt "failed to produce . . . proof" on this issue at the jury trial. (Petitioners' brief at 26). Nevertheless, the record, including the documents submitted in connection with the motion for summary judgment and the motion to dismiss, is uncontradicted that K&D and the Joneses, more than three years before this action, were aware or should have been aware that Hyatt had failed to procure motor vehicle liability insurance. There were no factual disputes regarding this matter.

   Furthermore, in the trial court, in response to the motion to dismiss the amended complaint on the ground of limitations, the Joneses' position, relying on Washington Transit v. Queen, 324 Md. 326, 597 A.2d 423 (1991), was "that the statute did not begin to run until the tort plaintiffs obtained their judgment against the tort defendants, here some 2 and one-half years before the filing of the Amended Complaint. * * * Queen exactly fits . . . ." As treated by the parties in the circuit court, and by the circuit court itself, the limitations issue was "solely one of law," Poffenberger v. Risser, 290 Md. 631, 634, 431 A.2d 677, 679 (1981).

[***20]

   [**1106] [*652] III.

   As previously indicated, we agree with the Joneses that, in their amended complaint, they did assert direct tort causes of action against Hyatt and Swem. Hyatt and Swem, however, argue that Maryland law does not recognize such tort causes of action under the circumstances here and that, even if such causes of action are recognized, they were barred by limitations.

   The Joneses respond by arguing that their status as third-party beneficiaries of the contract between K&D and Hyatt warrants recognition of a direct tort cause of action. In addition, according to the Joneses, they "seek a rule of law that the agent who fails to provide the insurance coverage is liable to the injured motorist under the same terms and in the same amount as the insurer would have been, had the agent met his or her duty and provided the insurance coverage requested by the client." (Petitioners' brief at 11). The Joneses further assert that Maryland law recognizes that a client has a tort cause of action against an insurance agent when the agent negligently breaches its agreement to obtain an insurance policy for the client; they contend that tort claimants should similarly be entitled to maintain a[***21] tort action against the agent. The Joneses also rely upon the foreseeability of harm to persons in their position resulting from an insurance agent's breach of the contract with the client. Finally, the Joneses contend that the statute of limitations with [*653] regard to such direct tort cause of action did not begin to run until, in the underlying tort suit against K&D, the Joneses recovered a judgment. n8

 n8 In their certiorari petition, the Joneses did not raise the issue of when the statute of limitations began to run on their cause of action as assignees of K&D. As the trial court correctly held, however, any negligence action, which K&D might have had, accrued when K&D first sustained harm as a result of Hyatt's alleged breach of tort duty, i.e., when K&D learned that, because it had no insurance coverage, it had to pay for the property damage to its own vehicle, reimburse Allstate for the damage to Mr. Jones's car, and defend itself against the Joneses' personal injury causes of action. As assignees, the Joneses were bound to the same limitations period as their assignor, K&D. See, e.g., James v. Goldberg, 256 Md. 520, 527, 261 A.2d 753, 757 (1970) (an assignment "does not confer upon the assignee any greater right than the right possessed by the assignor"); Webb v. Balto. Commercial Bank, 181 Md. 572, 580, 31 A.2d 174, 179 (1943) (an assignee is "subject to all defenses against [the assignor's] claim, for obviously, the rights of the assignee are no greater than those of his assignor * * * the statute of limitations . . . applied").

[***22]

   In our view, Hyatt and Swem owed no tort duty directly to the Joneses under the circumstances here. Because there was no direct tort cause of action, the case presents no issue concerning the running of the statute of limitations in such a tort action.

   A.

   In order to maintain a tort cause of action based on negligence, the plaintiff must first establish that "the defendant was under a duty to protect the plaintiff from injury." Rosenblatt v. Exxon, 335 Md. 58, 76, 642 A.2d 180, 188 (1994). "The existence of a legally cognizable duty owed by the defendant to the plaintiff or a class of persons of which the plaintiff is a member is essential to a cause of action for negligence." Ibid. See, e.g., Coates v. Southern Md. Electric, 354 Md. 499, 509, 731 A.2d 931, 936 (1999); Matthews v. Amberwood, 351 Md. 544, 553, 719 A.2d 119, 123 (1998); Shields v. Wagman, 350 Md. 666, 672, 714 A.2d 881, 883-884 (1998); BG&E v. Flippo, 348 Md. 680, 700, 705 A.2d 1144, 1153-1154 (1998); Erie Ins. Co. v. Chops, 322 Md. 79, 84, 585 A.2d 232, 234 (1991); Jacques v. First Nat'l Bank, 307 Md. 527, 531-535, 515 A.2d 756, 758-760 (1986),[***23] and authorities there cited. Thus, the Joneses must show that Hyatt owed them a duty to avoid any injury they may [**1107]have sustained as a result of Hyatt's failure to procure insurance for its client, K&D.

   As previously mentioned we have assumed, arguendo, that the Joneses were third- party beneficiaries of the contract between Hyatt and K&D and that, as such, the Joneses could have maintained a breach of contract action against Hyatt if the action had been timely filed. Contrary to the Joneses' position, however, any status which they might have as third- party beneficiaries under the contact is not by itself sufficient to create a duty in tort owed by Hyatt to the Joneses. As we reiterated earlier this year, Mesmer v. M.A.I.F., supra, 353 Md. at 253, 725 A.2d at 1058, "[a] contractual obligation, by itself, does not create a tort duty. Instead, the duty giving rise to a tort action must have some independent basis." See, e.g., Erie Ins. Co. v. Chops, supra, 322 Md. at 84, 585 [*654] A.2d at 234 ("a 'tort duty' does not necessarily coexist . . . with a duty imposed by contract, or even with a duty imposed by statute"); Jacques v. First Nat'l Bank, supra, 307 Md. at 534, 515 A.2d at 759[***24] ("Nor does a duty assumed or implied in contract by that fact alone become a tort duty"); Wilmington Trust Co. v. Clark, 289 Md. 313, 328-329, 424 A.2d 744, 754 (1981) ("the duty giving rise to the tort cause of action must be independent of the contractual obligation. * * * Mere failure to perform a contractual duty, without more, is not an actionable tort").

   This principle is applicable even when the failure to perform the contract results from the defendant's negligence.  Mesmer v. M.A.I.F., supra, 353 Md. at 253, 725 A.2d at 1059, and cases there cited; Heckrotte v. Riddle, 224 Md. 591, 595-596, 168 A.2d 879, 882 (1961) ("The mere negligent [*655] breach of a contract, absent a duty or obligation imposed by law independent of that arising out of the contract itself, is not enough to sustain an action sounding in tort. * * * For it is only when a breach of contract is also a violation of a duty imposed by law that the injured party has a choice of remedies").

   Consequently, the assumed status of the Joneses as third-party beneficiaries of the contract between Hyatt and K&D does not, standing alone, warrant judicial recognition of a[***25] tort duty owed by Hyatt to the Joneses.

   B.

   The Joneses rely upon several cases in this Court recognizing that tort claimants, injured by the negligence of an insured tort defendant, may under some circumstances bring actions against the tort defendant's liability insurer when the latter has denied coverage. See, e.g., Washington Transit v. Queen, supra, 324 Md. at 331-334, 597 A.2d at 426; Allstate Ins. Co. v. Atwood, 319 Md. 247, 259-264, 572 A.2d 154 (1990). See also, e.g., Mesmer v. M.A.I.F., supra, 353 Md. at 266-267, 725 A.2d at 1065-1066; Harford Mutual v. Woodfin, supra, 344 Md. at 412-413, 687 A.2d at 658-659; Valliere v. Allstate Ins. Co., 324 Md. 139, 596 A.2d 636 (1991). The Joneses argue that an insurance agent who fails to procure a policy should be liable to injured claimants to the same extent as the insurance company which mistakenly denies coverage.

   As discussed in Part II of this opinion, however, there are major differences between the obligation to obtain a policy undertaken by an insurance agent or broker and the typical obligations undertaken by a liability insurance company. [***26] Nonetheless, even if we were to assume, for purposes of this case, that an insurance agency which negligently breaches its contract to procure a liability insurance policy should owe the same duty to claimants like the Joneses as is owed by a liability insurer which negligently denies coverage, there would be no duty in tort owed to the Joneses.

   Under Maryland law, an insurer which mistakenly denies coverage does not breach a tort duty owed either to the insured or to third-party claimants such as the Joneses. Instead, the duty owed to [**1108] both the insured and to a third-party claimant is entirely contractual. The actions which the [*656] insured or the third party claimant are entitled to bring against the insurer denying coverage are ex contractu declaratory judgment actions to determine coverage under the policy or breach of contract actions. See Mesmer v. M.A.I.F., supra, 353 Md. at 257, 725 A.2d at 1061, where we recently held that "a liability insurer's breach of the insurance contract by erroneously disclaiming coverage . . . gives rise only to a breach of contract action . . . ." We continued in the Mesmer case, 353 Md. at 258, 725 A.2d at 1061:[***27]
 
   "[A] liability insurer breaches no tort duty when, upon learning of a claim, it erroneously denies coverage and refuses to undertake any defense against the claim. Our cases have not recognized any independent tort duty in this situation. Instead, the only action against the insurer is for breach of contract."
 
See also, e.g., Vigilant v. Luppino, supra, 352 Md. at 488-494, 723 A.2d at 17-20, and cases there cited; Bailer v. Erie Insurance, 344 Md. 515, 520, 687 A.2d 1375, 1377 (1997); Belcher v. Gov't Employees Ins. Co., 282 Md. 718, 724, 387 A.2d 770, 774 (1978).

   Accordingly, if we were to agree with the Joneses that Hyatt's duty owed to third-party claimants should be the same as the duty owed by a liability insurer which denies coverage, a breach of that duty would not, under Maryland law, give rise to liability in tort. n9 

n9 The Joneses rely upon a New Jersey case which does hold that an insurance agency, which negligently breaches its promise to procure a motor vehicle liability insurance policy, may be liable in tort to an injured third-party claimant.  Eschle v. Eastern Freight Ways, Inc., 128 N.J. Super. 299, 319 A.2d 786 (1974). See also Carter Lincoln-Mercury, Inc. v. Emar Group, Inc., 135 N.J. 182, 638 A.2d 1288 (1994) (involving a different factual situation, but the New Jersey Supreme Court cited with approval the Eschle case). The court in Eschle, however, seemed to hold that, under New Jersey law, the insurer which negligently denies coverage may be liable in tort to the injured third-party claimant, and it further held that the "agent stands in the shoes of the company which would have issued the policy . . . had [the agent] not been negligent . . . ." 128 N.J. Super. at 306, 319 A.2d at 790. As explained above, however, under Maryland law, an insurer which negligently disclaims coverage has not breached a tort duty owed to the insured and to an injured third party claimant. Rather, such insurer may be liable only in contract.

[***28] [*657]

   C.

   The Joneses assert that Maryland law recognizes a "cause of action by the insured against the agent/broker sounding in negligence" and that an "'agent or broker is liable to his principal if by his fault or neglect he fails to procure or renew insurance as he had contracted to do . . . . Such liability exists . . . as a tort in negligently failing to perform a duty imposed by contract.'" (Petitioners' brief at 18-19). The Joneses contend that the tort duty owed by an insurance agent to the agent's principal should extend to third-party beneficiaries such as the Joneses.

   We have held that "'an insurance agent must exercise reasonable care and skill in performing his duties'" and that the agent may become liable in tort to the principal who suffers "'a loss by [the agent's] failure to use standard care.'" Popham v. State Farm, 333 Md. 136, 153, 634 A.2d 28, 36 (1993), quoting Bogley v. Middleton Tavern, 288 Md. 645, 650, 421 A.2d 571, 573 (1980). See also Canatella v. Davis, 264 Md. 190, 206, 286 A.2d 122, 130 (1972); Lowitt v. Pearsall Chemical, 242 Md. 245, 253, 219 A.2d 67, 72 (1966). The cases in this Court[***29] holding insurance agents liable in tort to their principals involved negligent acts other than a mere breach of a contract to procure an insurance policy. Nevertheless, we shall assume that, on the facts of the present case, Hyatt and Swem would have been liable to K&D in tort if K&D had timely brought a tort action against them. Under our cases, however, the tort duty owed by an [**1109] agent to the principal would not extend to third parties such as the Joneses.

   The basis for the tort duty to use due care, owed by an insurance agent or broker to its client, is that the client "employed the services of [the agent], and placed confidence and trust in it as an experienced and knowledgeable insurance broker [or agent]." The agent "violated this trust and confidence, [*658]when it" failed to use due care.  Lowitt v. Pearsall Chemical, supra, 242 Md. at 253, 219 A.2d at 72. This principal-agent relationship, involving confidence and trust, did not exist between Hyatt and the Joneses.

   This Court in Jacques v. First Nat'l Bank, supra, 307 Md. at 534-535, 515 A.2d at 759-760, set forth some of the considerations in determining generally when tort duties should be[***30] recognized:

   "In determining whether a tort duty should be recognized in a particular context, two major considerations are: the nature of the harm likely to result from a failure to exercise due care, and the relationship that exists between the parties. Where the failure to exercise due care creates a risk of economic loss only, courts have generally required an intimate nexus between the parties as a condition to the imposition of tort liability. This intimate nexus is satisfied by contractual privity or its equivalent. By contrast, where the risk created is one of personal injury, no such direct relationship need be shown, and the principal determinant of duty becomes foreseeability." (Footnote omitted).

   In the case at bar, the Joneses incurred "a risk of economic loss only" as a result of Hyatt's negligent breach of contract. The Joneses' personal injuries did not result from Hyatt's negligence but were caused by the negligence of K&D's employee. The only injury possibly incurred by the Joneses as a result of Hyatt's negligence is that their judgment against K&D may not be satisfied. n10 This is economic loss only.

n10 Even this injury is somewhat speculative, as the record does not show whether K&D could satisfy the judgment in the underlying tort case.

[***31]

   Moreover, there was no "intimate nexus" or "direct relationship" between Hyatt and the Joneses. At the time of the contract between Hyatt and K&D, the Joneses were not even identified third-party beneficiaries of that contract. It was not until the motor vehicle accident that the Joneses fell into a class whose members were among the intended beneficiaries of the contract. See Napier v. Bertram, 191 Ariz. 238, 954 [*659] P.2d 1389 (1998), where the Supreme Court of Arizona held that an insurance agent may not be held liable in negligence to a taxicab passenger for failure to procure uninsured motorist coverage for the agent's client, a taxicab company required by state law to have such coverage on behalf of its passengers. The Arizona court noted that, for it to hold a professional liable for negligence, it traditionally required "a duty of care" founded upon the "relationship between the non-client and professional" that "exceeded mere general foreseeability." Napier, 191 Ariz. at 242-243, 954 P.2d 1393-1394. n11

n11 Under certain circumstances a third-party beneficiary of a contract between principal and agent, who is identified when the contract is entered into, may bring a tort action against the agent who has made representations to the beneficiary or otherwise assumed a duty owed to the beneficiary. Flaherty v. Weinberg, 303 Md. 116, 135-137, 492 A.2d 618, 627-628 (1985) (agent allegedly made negligent representations directly to the plaintiff, who was the identified third-party beneficiary of the agency contract, and who was allegedly not in an adversarial position to the principal, and the agent intended that the plaintiff would act upon the representations). The opinion in Flaherty v. Weinberg, however, clearly leads to the conclusion that the Joneses would not be entitled to bring a direct tort action against Hyatt.

[***32]

   Consequently, under the principles set forth in Jacques v. First Nat'l Bank, supra, and other cases, the defendants' breach of their contract with K&D violated no tort duty owed to the Joneses.

   [**1110] JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED. PETITIONERS TO PAY COST. 

ROBERTA KAHN v. MAX GOTTESMAN 
No. 54, September Term, 1999
 
COURT OF APPEALS OF MARYLAND
 
356 Md. 540; 741 A.2d 55; 1999 Md. LEXIS 661

 November  16, 1999, Filed

   PRIOR HISTORY:  [**1]

   Appeal from the Circuit Court for  Anne Arundel  County pursuant to certiorari to the Court of Special Appeals. Eugene M. Lerner JUDGE.

COUNSEL: ARGUED BY: Steven J. Parrott (Edward J. Stone, Parrott & Donahue, on brief) all of Annapolis, Maryland, FOR APPELLANT.
 
ARGUED BY: Maureen F. Mackey of Baltimore, Maryland, FOR APPELLEE.

JUDGES: ARGUED BEFORE: Bell, C.J.; Eldridge, Rodowsky, Raker, Wilner, Cathell, and Harrell, JJ. ROBERT M. BELL, CHIEF JUDGE.

OPINIONBY: ROBERT M. BELL

OPINION: [*540]

   ORDER

   The Court having considered at oral argument the Appellee's motion to dismiss appeal, the Appellee's supplemental motion to dismiss appeal and the Appellant's replies filed thereto in the above-captioned case, it is this 16th day of November, 1999,

   ORDERED, by the Court of Appeals of Maryland, that the judgment of the Circuit Court for Anne Arundel County be, and it is hereby, vacated, and the case is remanded to the Circuit Court for Anne Arundel County with directions to dismiss the action on grounds of mootness. See Mayor v. [*541] Committee on Legislative Investigations, 341 Md. 23, 668 A.2d 33 (1995); Attorney Gen. v. A.A. Co. School Bus, 286 Md. 324, 327, 407 A.2d 749, 752 (1979),[**2] and Maryland Rule 8-602 (a) (10). Costs to be paid by the Appellant, Roberta Kahn.

   /s/ROBERT M. BELL

   CHIEF JUDGE 

JAMORE VAN JOHNSON v. STATE OF MARYLAND 
No. 135, September Term, 1998
 
COURT OF APPEALS OF MARYLAND
 
356 Md. 498; 740 A.2d 615; 1999 Md. LEXIS 658

 November  15, 1999, Filed

   PRIOR HISTORY:  [***1] Certiorari to the Court of Special Appeals (Circuit Court for  Anne Arundel  County). Case No. K-97-909. Clayton Greene, Jr., JUDGE. 

DISPOSITION: JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED. PETITIONER TO PAY COSTS. 
CASE SUMMARY 

PROCEDURAL POSTURE:  Petitioner appealed his conviction from the Circuit Court for Anne Arundel County (Maryland) for the offenses of possession of a controlled dangerous substance with intent to distribute and simple possession.

OVERVIEW:  Petitioner appealed from his conviction for the offenses of possession of a controlled dangerous substance with intent to distribute and simple possession. On appeal, petitioner challenged the trial court's denial of his motion to suppress evidence seized pursuant to a search incident to his arrest for trespass on public housing property in violation of Md. Ann. Code art. 27, § 577(a)(2) (1957). Petitioner argued that the police did not have probable cause to believe that he was trespassing because the prior notification that petitioner received to stay off the property was stale. The court affirmed the judgment, holding that due notification under the statute need not be contemporaneous. Thus, the officer could reasonably conclude that petitioner was duly notified not to remain upon, enter, or cross over the property of the housing authority.

OUTCOME:  Judgment was affirmed. The statute did not require contemporaneous notice for trespass on public housing property. Thus, the officer could reasonably conclude that petitioner was duly notified not to remain upon, enter, or cross over the property of the housing authority.

CORE TERMS:  notification, public housing, trespass, arrest, contemporaneous, housing authority, trespassing, notice, criminal trespass, probable cause, notified, housing, police officer, misdemeanor, effective, posted, public building, dispatcher, banned, stale, forbid, public agency, regularly, banning, investigate, sanitary, safe, See Maryland Laws, motion to suppress, statutory scheme

CORE CONCEPTS -  

Criminal Law & Procedure: Criminal Offenses: Miscellaneous Offenses
See Md. Ann. Code art. 27, § 577 (1957) (amended 1998).

Governments: Legislation: Construction & Interpretation
The definition of the word "duly" includes in due or proper form or manner; according to legal requirements. Regularly; properly; suitable; upon a proper foundation, as distinguished from mere form; according to law in both form and substance. This definition shows that the word does not necessarily have a timeliness connotation, especially in legal contexts.

Criminal Law & Procedure: Arrests: Warrantless Arrest
Criminal Law & Procedure: Appeals: Reviewability
Criminal Law & Procedure: Appeals: Standards of Review: General Rules
An appellate court's review of the trial court's denial of a motion to suppress evidence under U.S. Const. amend. IV is based solely upon the record of the suppression hearing.

Criminal Law & Procedure: Arrests: Probable Cause
Criminal Law & Procedure: Arrests: Warrantless Arrest
The legality of a warrantless arrest is determined by the existence of probable cause at the time of the arrest.

Criminal Law & Procedure: Arrests: Probable Cause
The rule of probable cause is a non-technical conception of a reasonable ground for belief of guilt, requiring less evidence for such belief than would justify conviction but more evidence than that which would arouse a mere suspicion.

Criminal Law & Procedure: Arrests: Probable Cause
Probable cause exists where the facts and circumstances within the officer's knowledge and of which he had reasonably trustworthy information would justify the belief of a reasonable person that a crime has been or is being committed.

Criminal Law & Procedure: Arrests: Probable Cause
In dealing with probable cause, one deals with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.

Criminal Law & Procedure: Arrests: Warrantless Arrest
See Md. Ann. Code art. 27, § 594B (1957).

Criminal Law & Procedure: Criminal Offenses: Miscellaneous Offenses
See Md. Ann. Code art. 27, § 577A (1957) (amended 1998).

Criminal Law & Procedure: Criminal Offenses: Miscellaneous Offenses
Although Md. Ann. Code art. 27, § 577A (§ 577A) makes refusing or failing to leave a public building or grounds upon being requested to do so by an authorized employee a criminal offense, there is no provision whereby mere entrance into a public building, following a prior notification, amounts to a criminal trespass under § 577A. Unlike owners of posted property who can forbid entry by posting, or owners of non-posted private property who can forbid entry by notifying specific persons in advance that they may not have access to their property, public officials under § 577A can only notify people, in specified circumstances, that they may not remain.

Criminal Law & Procedure: Criminal Offenses: Miscellaneous Offenses
Under Maryland's regime for trespass on public buildings and grounds, a notification to stay off property given on one occasion does not remain effective for future occasions. Under the Maryland regime for trespass on private property and public housing project property, by contrast, a notification to stay off property given on one occasion remains effective for future occasions. This means that contemporaneous notification is required in the former case and not in the latter.

Criminal Law & Procedure: Criminal Offenses: Miscellaneous Offenses
Due notification under Md. Ann. Code art. 27, § 577 (1957) (amended 1998), covering trespass on private property and public housing projects, need not be contemporaneous.

COUNSEL: ARGUED BY Claudia A. Cortese, Assistant Public Defender (Stephen E. Harris, Public Defender, on brief) all of Baltimore, Maryland FOR PETITIONER.
 
ARGUED BY Annabelle L. Lisic, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General of Maryland, on brief) all of Baltimore, Maryland FOR RESPONDENT.

JUDGES: ARGUED BEFORE Bell, C.J.; Eldridge, Rodowsky, Chasanow, * Raker, Wilner, and Cathell, JJ. Opinion by Raker, J. 

* Chasanow, J., now retired, participated in the hearing and conference of this case while an active member of the Court but did not participate in the decision and adoption of this opinion. 

OPINIONBY: RAKER

OPINION: [*500] [**616]
 
Opinion by Raker, J.

   Jamore Van Johnson appeals from his conviction in the Circuit Court for Anne Arundel County for the offenses of possession of a controlled dangerous substance with intent to distribute and simple possession. The sole issue he raises before this Court is the trial court's denial of his motion to suppress evidence seized pursuant to a search incident to his arrest for trespass on public housing property in violation of Maryland Code (1957, 1996 Repl. Vol.) Article 27, § 577(a)(2) n1 . Johnson contends that the police did not have probable cause to believe that he was trespassing because the notification that he received in 1995 to stay off the property was stale in 1997; thus, the arresting officer, knowing the date[***2] of the notification, could not reasonably have believed that Johnson was committing a crime. The Court of Special Appeals found no merit in his argument and affirmed the judgments. We agree, and shall affirm.

 n1 Unless otherwise indicated, all subsequent statutory references shall be to Maryland Code (1957, 1996 Repl. Vol.) Art. 27, § 577.

   At the time of this offense n2, § 577 stated in pertinent part:

n2 Section 577, effective at the time of the arrest, has been repealed and a new § 577 enacted, effective October 1, 1998. See 1998 Maryland Laws ch. 498, at 2361. The current version of § 577 includes those offenses previously found in former §§ 576, 577, 578, 579A, 579B and 580 of Article 27. The changes are not substantive but rather stylistic only.

   (a) In general. -- (1) Any person who remains upon, enters upon or crosses over[***3] the land, premises, or private property . . . of any person or persons in this State after having been [*501] duly notified by the owner or his agent not to do so is considered guilty of a misdemeanor, and upon conviction is subject to a fine not exceeding $500, or imprisonment not exceeding 3 months, or both.

   (2) The provisions of paragraph (1) of this subsection shall apply to property used as a housing project and operated by a housing authority . . . if a duly authorized agent of the housing authority . . . gives the required notification specified in paragraph (1) of this subsection.

   (3) This section may not be construed to include within its provisions the entry upon or crossing over any land when such entry or crossing is done under a bona fide claim of right or ownership of said land, it being the intention of this section only to prohibit any wanton trespass upon the private land of others.

   Petitioner was found guilty in the Circuit Court for Anne Arundel County, in a bench trial upon an agreed statement of facts, of the offenses of possession of a controlled dangerous substance with intent to distribute, namely heroin, and possession of a controlled dangerous substance, namely, [***4] cocaine. The court sentenced him on each count to a term of incarceration of three years, to run concurrently.

   Officer John Miller of the Annapolis Police Department was the only witness to testify at the suppression hearing. The evidence presented at the hearing is as follows. Shortly after midnight in the early morning hours of May 7, 1997, Officer Miller was patrolling the public housing community in Annapolis known as Annapolis Gardens. He testified that the area is a posted no trespass area and that these signs are affixed upon light posts throughout the community. Officer Miller explained [**617] that "the community oriented policing squad has been given the authority by Annapolis Housing Authority to issue banning notices to individuals that they feel have no proper reason for being in these communities." n3 In accordance [*502] with this authority, the police department maintained a trespass banning list. Officer Miller testified that when his check reveals that a person is on the banning list, the person is arrested.

n3 The agreement between the Housing Authority authorizing the police to act as its agent is not included in the record nor is the content of the banning notice.

[***5]

   Officer Miller testified that he noticed Petitioner driving on Bowman Drive, a street within the Annapolis Gardens community, recognized him, and recalled his name. He radioed the police dispatcher and requested a check for outstanding warrants and driver's license status. The dispatcher advised the officer that Petitioner had a valid driver's license and that there were no outstanding warrants for his arrest. Officer Miller then requested the dispatcher to check Petitioner's name against a "binder or folder . . . of names of people that have been banned from different Housing Authority properties throughout the City of Annapolis." The dispatcher advised the officer that Petitioner's name was listed "as being issued by Officer Berger on 5/5/95 as not to return to the property of Bowman Court/Annapolis Gardens" and that he had been "banned" from the property in 1995. Upon learning that Petitioner was banned from the property, the officer stopped Petitioner's car and arrested him for trespass. The officer searched the car and seized the drugs in question concealed within the vehicle, as well as $84.00 and a beeper.

   Petitioner filed a timely motion to suppress the evidence by the police [***6]on the grounds that his arrest was unlawful because the police officer lacked probable cause to support the arrest. Petitioner argued that the search incident to that arrest was unlawful and the items seized by the police were inadmissible.

   The trial court denied Johnson's motion to suppress. The State entered a nolle prosequi to the trespass charge and Petitioner proceeded to trial on an agreed statement of facts. Following his conviction and sentence, he noted a timely appeal to the Court of Special Appeals. In an unreported opinion, the court affirmed. We granted the petition for writ of certiorari.

   Petitioner presents a single argument before this Court--that the officer lacked probable cause for the arrest because [*503] he knew that the notification was two years old and thus could not have reasonably believed that Petitioner was duly notified not to enter upon the property. He maintains that notification proper in 1995 was stale in 1997; that Officer Miller, knowing the date of the notification, could not reasonably have believed that it was not stale and thus could not have believed that Petitioner was trespassing.

    Petitioner's premise is that a critical element of the crime[***7] of trespass after warning is that the person's presence on the property be after he or she was "duly notified" not to trespass. Before this Court, Petitioner does not dispute that Officer Miller knew that Petitioner had entered the property. Nor does Petitioner dispute that Officer Miller knew that Petitioner was notified earlier--on May 5, 1995--by another officer not to enter the property. Rather, he argues that this notification was not "due" notification on May 7, 1997, and that no reasonable officer could have believed that the notification given on May 5, 1995 was adequate notice under the statute. Without suggesting any guidelines, he maintains that the notice not to enter must be reasonably contemporaneous.

   Petitioner relies on dictionary definitions of the word "duly" to support his argument that the word has a connotation of [**618] timeliness. n4 Citing the American Heritage Dictionary (2d ed. 1992), defining "duly" as "in a proper manner; in the expected time," and Webster's New World Dictionary (2d College ed. 1978), defining "duly" as "in due manner," "when due; at the right time; on time," he concludes that only "reasonably contemporaneous" notification would be due[***8] notification and that a reasonable police officer would not think otherwise. Officer Miller knew that the notification was two years old, and therefore, according to this argument, could [*504] only have reasonably believed that the due notification element was negated; the possibility that a trespass had been committed in his presence was therefore negated as well. Consequently, he could not have had probable cause for the arrest.

n4 We note that Petitioner does not include the Black's Law Dictionary definition of the word "duly." See BLACK'S LAW DICTIONARY 501 (6th ed. 1990): "In due or proper form or manner; according to legal requirements. Regularly; properly; suitable; upon a proper foundation, as distinguished from mere form; according to law in both form and substance." This definition shows that the word does not necessarily have a timeliness connotation, especially in legal contexts.

   Our review of the trial court's denial of a motion to suppress under the Fourth Amendment is based solely upon the record[***9] of the suppression hearing. See Ferris v. State, 355 Md. 356, 735 A.2d 491 (1999). The arrest in this case was a warrantless arrest, based upon on a misdemeanor having been committed in the presence of the police officer. n5 The legality of a warrantless arrest is determined by the existence of probable cause at the time of the arrest. See  Collins v. State, 322 Md. 675, 679, 589 A.2d 479, 481 (1991). "The rule of probable cause is a non-technical conception of a reasonable ground for belief of guilt, requiring less evidence for such belief than would justify conviction but more evidence than that which would arouse a mere suspicion."  Doering v. State, 313 Md. 384, 403, 545 A.2d 1281, 1290 (1988). Probable cause exists where the facts and circumstances within the officer's knowledge and of which he had reasonably trustworthy information would justify the belief of a reasonable person that a crime has been or is being committed. See Beck v. Ohio, 379 U.S. 89, 91, 85 S. Ct. 223, 13 L. Ed. 2d 142 (1964); Collins, 322 Md. at 680, 589 A.2d at 481. We have recognized that in dealing with probable cause, we[***10] deal with probabilities. "These are not technical; they are the factual and practical [*505] considerations of everyday life on which reasonable and prudent men, not legal technicians, act." Doering, 313 Md. at 403, 545 A.2d at 1290 (quoting Brinegar v. United States, 338 U.S. 160, 175-76, 69 S. Ct. 1302, 93 L. Ed. 1879 (1949)). 

n5 Section 594B of Article 27 sets out Maryland law governing warrantless arrests, and provides in pertinent part:

   (a) Arrest for crime committed in presence of officer.-- A police officer may arrest without warrant any person who commits, or attempts to commit, any felony or misdemeanor in the presence of, or within the view of, such officer.

   (b) Arrest for crime apparently committed in presence of officer.-- A police officer who has probable cause to believe that a felony or misdemeanor is being committed in the officer's presence or within the officer's view, may arrest without a warrant any person whom the officer may reasonably believe to have committed such offense.
 
Maryland Code (1957, 1996 Repl. Vol., 1999 Supp.) Art. 27, § 594B.

[***11]

   Before the Court of Special Appeals, Petitioner presented two arguments. First, that there was no evidence that Johnson was ever on Annapolis Gardens property, and second, that the notification not to enter the property was not timely; it was not due; rather it was clearly stale. As to the first argument, the court held that because the argument was not made at the hearing on the motion to suppress, it was waived. n6 As to the second argument, [**619] Retired Chief Judge Robert C. Murphy, writing for the court, found that "there was no reason whatsoever to believe that the trespassing prohibition against [Johnson] had somehow expired or that [Johnson's] name had otherwise been removed from the list. There is [*506] simply no suggestion that the information that the dispatcher gave to Officer Miller was stale." The court also noted that the statute expressly permits a housing authority to notify a person not to enter upon housing project property, and that the statute contains no time limitation on such bans. We agree with the Court of Special Appeals.

n6 At the motions hearing in the circuit court, Petitioner argued that the officer lacked grounds to believe that Petitioner entered on or remained upon the Annapolis Gardens property. He also argued that the officer "didn't even investigate, he just arrested." Before the Court of Special Appeals, Johnson suggested that because Officer Miller testified only that he saw him driving on Bowman Drive, a public street, and there was no evidence that the officer ever saw him within the Annapolis Gardens community, his presence on the street could not be considered a trespass. The Court of Special Appeals held that because this argument was not made at the motions hearing, it was not properly before the court and hence, would not be considered. We likewise will not consider the issue. In addition, because Petitioner does not challenge the authority of the Annapolis City police to act as the agent of the Housing Authority or the authority of the police to immediately arrest rather than stop and investigate further, see Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), to determine whether Petitioner had a bona fide claim of right or ownership, we will not address either issue. See, e.g., State v. McCormack, 517 So. 2d 73, 75 (Fla. App. 1987) (finding that officer had reason to stop and inquire purpose for being on property, and when defendant failed to offer explanation for his presence, officer had probable cause to arrest); State v. Little, 116 Wn.2d 488, 806 P.2d 749, 754 (Wash. 1991) (holding that "officers had reasonable suspicion to believe that a criminal trespass was being committed and properly attempted to conduct an investigatory stop"); State v. Blair, 65 Wn. App. 64, 827 P.2d 356, 359 (Wash. App. 1992) (noting that officer's prior admonishment not to return, coupled with Blair's return, authorized officer to stop Blair and investigate to see if his presence was in fact legitimate).

[***12]

   The plain language of the statute does not create expressly any time limitation upon the notification requirement. Examination of the statutory scheme of criminal trespass as a whole, moreover, shows that while the General Assembly intended to create a requirement of contemporaneous notification for criminal trespass on certain types of property, it did not intend to do so for private property or public housing projects. Our review of the legislative history of the provision on public housing projects, added by amendment in 1994, reinforces this conclusion.

   Under the common law, trespass to real property is not a crime unless it amounts to a breach of the peace. Thus, for the most part, criminal trespass is a creature of statute. It is only the notification element of the statute that concerns us in this case.

   We begin our discussion by pointing out that Maryland's statutory scheme for criminal trespass divides property into two categories: private property, including public housing projects on the one hand, and public buildings and grounds on the other. The section pertaining to private property and public housing projects, recited above, provides that one may not "enter[] [***13] . . . after having been duly notified . . not to do so." Section 577(a)(1). The section criminalizing trespass on public buildings and grounds provides as follows:
 
(1) During regularly closed hours. -- Any person refusing or failing to leave a public building or grounds, or specific portion thereof, of a public agency or public institution during those hours of the day or night when the building, grounds, or specific portion thereof, is regularly closed to the public, upon being requested to do so by a regularly employed guard, watchman or other authorized employee of [*507] the public agency or institution owning, operating or maintaining the building or property if the surrounding circumstances are such as to indicate to a reasonable man that such person has no apparent lawful business [**620] to pursue at such place, shall be guilty of a misdemeanor. . . .
 
   (2) During regular business hours. -- Any person refusing or failing to leave a public building or grounds, or specific portion thereof, of a public agency or public institution during regular business hours, upon being requested to do so by an authorized employee of the public agency or institution owning, operating or maintaining[***14] the building or property if the surrounding circumstances are such as to indicate to a reasonable man that such person has no apparent lawful business to pursue at such place, or is acting in a manner disruptive of and disturbing to the conduct of normal business by such agency or institution, shall be guilty of a misdemeanor. . . .
 
Maryland Code (1957, 1996 Repl. Vol.) Art. 27, § 577A. n7 The statute on public buildings and grounds thus criminalizes remaining in a public building or on public grounds, upon being requested to leave. This contrasts with the prohibition on entering after being notified not to do so, in the section on private property and public housing projects. Interpreting the difference between the two sections, we have explained that

n7 Section 577A, effective at the time of the arrest, has been moved to § 578, with stylistic changes in language, effective October 1, 1998. See 1998 Maryland Laws ch. 498, at 2361. The changes are not substantive and are stylistic only.

   although[***15] the statute makes "refusing or failing to leave a public building or grounds . . . upon being requested to do so by . . . [an] authorized employee" a criminal offense, there is no provision whereby mere entrance into a public building, following a prior notification, amounts to a criminal trespass under § 577A. Unlike owners of posted property who can forbid entry by posting, or owners of non-posted private property who can forbid entry by notifying specific [*508] persons in advance that they may not have access to their property, public officials under § 577A can only notify people, in specified circumstances, that they may not remain.
 
In re Appeal No. 631, 282 Md. 223, 227, 383 A.2d 684, 686 (1978). Thus, under Maryland's regime for trespass on public buildings and grounds, a notification to stay off property given on one occasion does not remain effective for future occasions. Under the Maryland regime for trespass on private property and public housing project property, by contrast, a notification to stay off property given on one occasion remains effective for future occasions. n8 This means that contemporaneous notification is required in the former[***16] case and not in the latter. Our examination of the statutory scheme for criminal trespass as a whole thus leads us to the conclusion that due notification under § 577, covering private property and public housing projects, need not be contemporaneous.

 n8 We need not decide whether notification to stay off a property is valid for an indeterminate period of time. We decide only, under the circumstances presented herein, that two years is not unreasonable.

   The history of the General Assembly's recent decision to include public housing projects in § 577 reinforces our conclusion that notification to trespassers on public housing property need not be contemporaneous with the act of trespassing. House Bill 200 was introduced in the 1994 session to make § 577 apply specifically to public housing projects operated by a housing authority or other State public body, if an authorized agent of the housing authority or other State public body gives the required notice. See Senate Judicial Proceedings Committee, Bill[***17] Analysis on House Bill 200 (1994). The bill's sponsor, Delegate Joel Chasnoff, noted in the Bill Analysis and in the Floor Report that because some District Court judges had ruled that public housing was covered under § 577A, trespass on public buildings and grounds, legislation was necessary [**621] specifically to include trespass on public housing premises in § 577. He noted:

   Advocates of the bill argue that § 577A is inappropriate for public housing because the only way that a public official [*509] may give the required notice is by requesting an individual who is found already on the property to leave. Posted notices that warn people to keep out are insufficient. As the Court of Appeals stated in In re Appeal No. 631, 282 Md. 223, 227, 383 A.2d 684 (1978): "Unlike owners of posted property who can forbid entry by posting or owners of non-posted private property who can forbid entry by notifying specific persons in advance that they may not have access to their property, public officials under § 577A can only notify people, in specified circumstances, that they may not remain."
 
Senate Judicial Proceedings Committee, Floor Report on House Bill 200 (1994). [***18]The stated purpose of the bill was "to help public housing authorities to keep drug dealers and other undesirable persons away from public housing projects." Id. Accordingly, subsection (2) was added to § 577. See 1994 Maryland Laws ch. 231, at 1661.

   Two points are apparent from this history. First, the General Assembly understands the difference between requiring and not requiring contemporaneous notice. It understood in 1994 that it had chosen previously to require contemporaneous notice for trespassing on public buildings and grounds and not for trespassing on private property. Thus it is no accident that this requirement is present in § 577A and absent in § 577. Second, the General Assembly deliberately placed trespassing on public housing project property in § 577. It thereby put public housing in the same category as private property, specifically in response to a perceived need for durable notices to keep undesirable persons away from such housing.

   One notable feature of Maryland's criminal trespass scheme that emerges from our analysis is that the scheme reflects the General Assembly's view that public housing projects warrant the greater degree of protection[***19] from trespassing afforded to private property, not the lesser degree afforded to public buildings and grounds. This view is in keeping with the "policy of this State to develop safe, sanitary and decent housing for the citizens of this State," as declared in Article [*510] 44A, the Housing Authorities Law. See Maryland Code (1957, 1998 Repl. Vol., 1999 Supp.) Art. 44A, § 1-102 (8) and §§ 10-101 to 10-102 The General Assembly has declared that there is a shortage of safe and sanitary dwellings in the State available at rents which persons of low or moderate income can afford. To this end, housing authorities were created to develop and operate housing projects.  See Maryland Code (1957, 1998 Repl. Vol., 1999 Supp.) Art. 44 A, § 1-203. Housing authorities, in fulfilling their legislative mandate to provide safe and sanitary housing for low and moderate income people, act in the same manner as the management of privately-owned apartment complexes would act, and do not operate the premises as public buildings or as public agencies. Housing authorities may legitimately exclude those persons on the property for the purpose of engaging in illegal activities. See State v. Blair, 65 Wn. App. 64, 827 P.2d 356, 358 (Wash. App. 1992). [***20]

   There is some suggestion by Petitioner that an appropriate time limit could be something later than contemporaneous but sooner than the two years in this case, i.e., the one year statute of limitations. We decline to usurp the role of the legislature and create such a limit.

   In sum, we conclude that § 577 does not require any more contemporaneous notification than was provided here. We hold that it was reasonable for the officer to believe that Petitioner had due notice not to enter upon the property. The property was posted with signs indicating that trespassing is not permitted. The no trespass message on the posted [**622] sign was "contemporaneous notice" and would warn a reasonable person not to enter if his or her presence was unauthorized, or, as in this case, that he had been banned from the property. The officer saw the signs. The officer had reliable information that Petitioner had been informed by an Annapolis City police officer that he was on the trespass list and banned from the property. The officer had knowledge that Officer Berger told Petitioner on May 5, 1995, to stay off the property and personally saw Petitioner on the property. Officers on the street are not there[***21] to interpret or construe statutes microscopically [*511] or to make decisions in a hyper-technical fashion. The officer could reasonably conclude that Petitioner was duly notified not to remain upon, enter or cross over the property of the housing authority.
 
JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED. PETITIONER TO PAY COSTS. 

MVA v. Rork 
Pet. Docket No. 387
 
COURT OF APPEALS OF MARYLAND
 
356 Md. 496; 740 A.2d 613; 1999 Md. LEXIS 784

 November  15, 1999, Decided

NOTICE: 

  [*1]  DECISION WITHOUT PUBLISHED OPINION 

PRIOR HISTORY:  (No. C-1998-51639, Circuit Court for  Anne Arundel  County).

OPINION: Petition for Writ of Certiorari denied. 

SHELDON GARY McNEIL v. STATE OF MARYLAND 
No. 131, September Term, 1998
 
COURT OF APPEALS OF MARYLAND
 
356 Md. 396; 739 A.2d 80; 1999 Md. LEXIS 649

 October  19, 1999, Filed

   PRIOR HISTORY:  [***1] Certiorari to the Court of Special Appeals (Circuit Court for  Anne Arundel  County), Case No. K-97-56. Eugene M. Lerner, JUDGE.

DISPOSITION: JUDGMENT AFFIRMED; APPELLANT TO PAY THE COSTS. 
CASE SUMMARY 

PROCEDURAL POSTURE:  Petitioner appealed conviction of various sexual offenses and denial of his motion to suppress evidence in the Circuit Court for Anne Arundel County (Maryland) arguing that solicitation of a prostitute by a potential customer was not a crime under Md. Ann. Code art. 27, § 15(e).

OVERVIEW:  The evidence at trial indicated that defendant forced the victim into his car at the point of a knife, drove her into the woods against her will, and raped her. Defendant subsequently attempted to engage an undercover police officer, posing as a prostitute in a sting operation, in certain sexual activity. Evidence obtained as a result of his arrest for that endeavor incriminated him in the rape prosecution. Defendant moved to suppress the evidence obtained after his arrest, arguing that being a prospective customer of a prostitute did not constitute a crime under Md. Ann. Code art. 27, § 15(e). The motion was denied and defendant appealed rape conviction. The court held that the crime of soliciting for prostitution stated in Md. Ann. Code art. 27, § 15(e) covered the conduct both of the prostitute in soliciting potential customers and of the potential customer in soliciting the prostitute.

OUTCOME:  Judgment affirmed; court held that the crime of soliciting for prostitution covered the conduct of defendant potential customer in soliciting the prostitute, who was actually an undercover police officer. Defendant's arrest was thus based upon probable cause.

CORE TERMS:  prostitution, prostitute, customer, lewdness, solicit, arrest, soliciting, female, purpose of prostitution, assignation, solicitation, brothel, woman, male, common law, arrested, commit, potential customer, procure, girl, sex, sexual intercourse, hire, purposes of prostitution, probable cause, street, convicted, sexual, bawdy house, prospective customer

 CORE CONCEPTS -  

Criminal Law & Procedure: Criminal Offenses: Sex Crimes: Prostitution, Pimping & Pandering
See Md. Ann. Code art. 27, § 15.

Criminal Law & Procedure: Criminal Offenses: Sex Crimes: Prostitution, Pimping & Pandering
See Md. Ann. Code art. 27, § 16.

Governments: Legislation: Construction & Interpretation
In dealing with the issue of statutory construction, a court's goal is to discern and effectuate the intent of the legislature at the time it enacted the statute. If the statutory language is clear and unambiguous and is consistent with the purposes of the legislation in general and the particular provision being interpreted, the court's inquiry usually ends at that point. If the language is unclear or ambiguous, the court seeks to discern the intent of the legislature from surrounding circumstances, such as legislative history, prior case law, and the purposes upon which the statutory framework was based.

Governments: Legislation: Construction & Interpretation
Because the statutory language of Md. Ann. Code art. 27, § 15 has not changed since its enactment in 1920, consideration of the meaning of the language in the context of the statute's setting and objectives requires that a court recur to the history of the times when it was passed; and this is frequently necessary in order to ascertain the reason as well as the meaning of particular provisions in it.

Criminal Law & Procedure: Criminal Offenses: Sex Crimes: Prostitution, Pimping & Pandering
Governments: Legislation: Effect & Operation
Md. Ann. Code art. 27, § 15(e) makes it unlawful to procure or to solicit or to offer to procure or solicit for the purpose of prostitution, lewdness, or assignation. Read literally, giving the words their ordinary common meaning, that provision would seem, clearly, to apply to anyone who solicits for the purpose of prostitution -- the prostitute or his/her agents who solicit potential customers and potential customers who solicit the prostitute.

Criminal Law & Procedure: Criminal Offenses: Sex Crimes: Prostitution, Pimping & Pandering
The word "solicit," as used in Md. Ann. Code art. 27, § 15(e) is to be read in the terms of its ordinary meaning and not with reference to the common law offense of solicitation.

Criminal Law & Procedure: Criminal Offenses: Sex Crimes: Prostitution, Pimping & Pandering
A common definition of "solicit" is: (1) to ask or seek earnestly or pleadingly; to beg; to entreat; as, we solicit your support, he solicited them for help; (2) to tempt or entice (another) to do wrong; (3) to accost (another) for some immoral purpose, as a prostitute does; (4) to disturb; to disquiet. Any one of the first three definitions would suffice as an ordinary meaning understood and used by the general public. Even the third references a solicitation by a prostitute only as an example, not as a limitation. An entreaty, or offer, by a potential customer also qualifies as an accosting for some immoral purpose.
 
Criminal Law & Procedure: Criminal Offenses: Sex Crimes: Prostitution, Pimping & Pandering
Governments: Legislation: Effect & Operation
Given the historical background of Md. Ann. Code art. 27, § 15(e), and its prior construction, it is clear that the crime of soliciting for prostitution stated in that statute covers the conduct both of the prostitute (and his/her agents) in soliciting potential customers and of the potential customer in soliciting the prostitute.

COUNSEL: ARGUED BY John L. Kopolow, Assistant Public Defender (Stephen E. Harris, Public Defender, on brief) of Baltimore, MD, FOR PETITIONER.
 
ARGUED BY Ann N. Bosse, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General, on brief) of Baltimore, MD, FOR RESPONDENT.

JUDGES: ARGUED BEFORE Bell, C.J.; Eldridge, Rodowsky, Chasanow *, Raker, Wilner, and Cathell, JJ. Opinion by Wilner, J. in which Eldridge, J. concurs in the result only and Raker, J. concurs in the result. Concurring opinion by Raker, J. 

* Chasanow, J., now retired, participated in the hearing and conference of this case while an active member of this Court but did not participate in the decision and adoption of this opinion.

OPINIONBY: WILNER

OPINION: [**81] [*397]

   Petitioner, Sheldon McNeil, was convicted by a jury in the Circuit Court for Anne Arundel County of first degree rape, first degree sexual offense, kidnapping, and a number of lesser included offenses. He was given concurrent life sentences for [*398] the rape and sexual offense and a consecutive ten-year sentence for the kidnapping. The offenses arose from an encounter with a 17-year-old drug-addicted prostitute on the afternoon of May 17, 1996.

   We are not concerned here, directly, with the facts underlying the offenses committed against the instant victim. It will suffice to say that on ample evidence, the sufficiency of which is not challenged, the jury necessarily concluded that McNeil came across the victim in Baltimore City, forced her into his car at the point of a knife, [***2] drove her into Anne Arundel County against her will, took her into a wooded area, forced her at knifepoint to commit fellatio, raped her, and then abandoned her.

   The issues before us arise not from what happened to the victim but from McNeil's attempt two months later to engage an undercover Baltimore City police officer, posing as a prostitute in a sting operation, in certain sexual activity. Evidence obtained indirectly as a result of his arrest for that endeavor was used against him in the instant prosecution. The two issues presented to us, emanating from his unsuccessful effort to suppress that evidence, are (1) whether his conduct with respect to the undercover officer amounts to a crime under Maryland Code, Article 27, § 15(e), and (2) even if it does, whether there was probable cause for his arrest. We shall answer both questions in the affirmative and affirm the judgment entered below.

   BACKGROUND

   As noted, the offenses against the victim were committed on May 17, 1996. On June 20, a similar attack was reported against another young prostitute. The descriptions given by the two victims of the assailant, his conduct, and his car were similar. The police were thus looking[***3] for a white male with a heavy build, brown hair, and a mustache, driving a blue Toyota with a radio installed upside down -- the volume knob being on the right side -- and [**82]with tears in the interior roof lining, who preyed on young prostitutes. Both encounters began in Baltimore City and ended up in the same wooded [*399] area of Anne Arundel County. Sergeant Clark, of the Anne Arundel County Police Department, prepared a flyer and made contact with the Baltimore City police. He was informed that the City police were going to implement a major prostitution sting operation on July 9, and he was invited to observe.

   The operation involved several undercover police officers posing as prostitutes and "johns" -- potential customers. The officers were looking to arrest both real prostitutes and real customers. The immediate cause of McNeil's grief was Officer Bernadette Giblin, posing as one of the prostitutes. Dressed for the occasion, Officer Giblin was pacing the 1800 block of McHenry Street (where the second victim had been abducted) when McNeil, driving a blue Toyota with a torn roof lining and a radio having its volume knob on the right, stopped, made eye contact with her, and gestured for[***4] her to approach the driver's side of his car. When she came over, he asked if she "was working," which the officer understood to mean working as a prostitute. She responded that she was, and he asked her to get in the car. She agreed but first asked what he was "looking for." He responded "half and half," which, based on her training and her experience in this kind of operation, she took to mean half sexual intercourse and half fellatio. As she walked around the car to the passenger's side, she signaled the arrest team, and McNeil was arrested and taken to the police station.

   Sergeant Clark, waiting at the station, was allowed to interview McNeil. At some point, the sergeant took McNeil to a police station in Anne Arundel County and questioned him about the two rapes. McNeil denied any involvement and specifically denied having sex with anyone on May 17. He was photographed and, upon his written consent, was taken to a local hospital for hair, blood, and saliva testing. He was then driven to what he said was his cousin's home, where he wanted to go, and was released. McNeil does not contend that he was still under arrest after he left the City police station; it appears that he voluntarily[***5] accompanied Clark upon his release from custody in Baltimore City. A few days [*400] later, the instant victim identified McNeil from the photograph taken by Sergeant Clark, and, with that evidence, McNeil was eventually arrested. A later search of his apartment, pursuant to a search warrant, turned up a knife which the victim identified as the one used by her assailant. Tests conducted on the hair, blood, and saliva samples taken from him were also used at trial as identification evidence, as was the photograph. n1 The victim made a positive courtroom identification as well.

 n1 McNeil suggested in the trial court that his consent to the testing of his hair, blood, and saliva was invalid because he was unable to read the consent form. The court found otherwise. That issue is not before us in this appeal.

   McNeil's motion to suppress was very broad and devoid of details. He apparently meant it to encompass all evidence obtained by Sergeant Clark -- from his observation of the blue Toyota, from the search of that car and[***6] McNeil's apartment, from the forensic tests, and from any statements given by McNeil -- on the theory that all of that evidence emanated from his unlawful arrest by Officer Giblin. The State seems to accept that premise. It makes no argument that any of that evidence would survive suppression if the arrest was, indeed, unlawful, and we shall therefore proceed on that assumption.

   DISCUSSION

   Introduction

   Article 27, § 15 creates seven offenses against public morality:

   (a) to keep up, maintain, or operate any place, structure, building, or conveyance [**83] for the purpose of prostitution, lewdness, or assignation; 

   (b) to occupy any such place n2 for the purpose of prostitution, lewdness, or assignation or to permit any such place to be [*401] used for such a purpose with knowledge or reasonable cause to know that the place is being, or is to be, used for such a purpose;

n2 For convenience, we shall use the term "such place" as including places, buildings, structures, and conveyances, in order to avoid having to repeat those terms.

[***7]

   (c) to receive or offer or agree to receive any person into such a place for the purpose of prostitution, lewdness, or assignation or knowingly to permit any person to remain there for such a purpose;

   (d) to direct, take, transport, or offer or agree to take or transport any person to any such place or to any other person with knowledge or reasonable cause to know that the purpose of such directing, taking, or transporting is prostitution, lewdness, or assignation;

   (e) "to procure or to solicit or to offer to procure or solicit for the purpose of prostitution, lewdness or assignation";
 
   (f) to reside in, enter in any such place or remain in any such place for the purpose of prostitution, lewdness, or assignation; or
 
(g) to engage in prostitution, lewdness, or assignation by any means.

   The three relevant terms -- prostitution, lewdness, and assignation -- are defined in § 16, as follows:

   "The term 'prostitution' shall be construed to mean the offering or receiving of the body for sexual intercourse for hire. The term 'lewdness' shall be construed to mean any unnatural sexual practice. The term 'assignation' shall be construed to include the making of any appointment, or[***8] engagement for prostitution or lewdness or any act in furtherance of such appointment or engagement."

   Although the record before us does not specify, anywhere, the particular offense Officer Giblin charged McNeil with committing, he has assumed throughout that the charge was under Article 27, § 15(e) -- an assumption not contested by the State. n3 In the trial court, his argument on the motion to suppress was limited to the complaint that his conversation [*402] with Officer Giblin had not progressed to the point of criminality under that section because no compensation had been discussed or agreed upon. His point was that "just asking for sex alone" is not a crime. See Transcript of Motion Hearing, July 22, 1997, at 45-46.

n3 The closest that the record comes to characterizing the offense for which McNeil was arrested in Baltimore City is in two narrative statements by Sergeant Clark. In his application for Statement of Charges in the instant case, he stated that McNeil was arrested "for soliciting an undercover police woman for sex." In an investigative police report, he stated that the arrest was "for soliciting sex." Those characterizations were obviously not intended to identify precisely the charge, as there is no offense of soliciting "for sex." It is not clear whether McNeil was ever actually prosecuted for the offense.

[***9]

   At the appellate level, he narrowed his assumption even further and asserted that he was arrested for soliciting for prostitution. From that premise, he has added the new, and quite different, argument that only the prostitute or possibly her procuring agent can be convicted of that offense -- that it does not apply to a potential customer of the prostitute. In an unreported opinion, the Court of Special Appeals addressed that argument and affirmed. The court held that, under § 15(e), if the act of sexual intercourse had been completed, both parties to it could be convicted of prostitution, and thus both could also be convicted of soliciting for prostitution.

   In his petition for certiorari, McNeil raised the question whether evidence was "unconstitutionally obtained from Petitioner because the undercover officer posing as a prostitute lacked probable cause to [**84] believe Petitioner was committing the crime of soliciting for purposes of prostitution." As subsidiary issues, he asked whether "the crime of soliciting for purposes of prostitution applies to a prospective customer of a prostitute" and whether, assuming that a prospective customer "can commit the crime of soliciting [***10]for purposes of prostitution," the facts of this case establish probable cause to believe that he was committing that offense. The question, of course, assumes that McNeil was, in fact, arrested for soliciting for prostitution. In its answer to the petition, the State seemed to accept that assumption, arguing that the Court of Special Appeals "correctly concluded that a prospective customer [*403] of prostitution can commit the crime of solicitation." In its brief, however, though continuing to acknowledge that the arrest was pursuant to § 15(e), the State urges that McNeil's conduct at the very least constituted a solicitation for the purpose of lewdness, whether or not it also constituted a solicitation for the purpose of prostitution.

   Once again, because of a lack of care in the framing and acceptance of issues -- the failure to examine the record to make sure that there is a clear factual underpinning for the issue raised -- we are in the position of having accepted jurisdiction over a case to address an issue that may have no factual basis. The question raised by McNeil -- whether a prostitute's prospective customer can properly be charged with solicitation for the purpose[***11] of prostitution -- does not necessarily arise with respect to solicitation for the purpose of lewdness or assignation under § 15(e), much less with respect to some of the offenses created in other subsections of § 15, with which McNeil might also have been charged. n4

n4 Section 15(c), for example, makes it unlawful for a person to agree to receive another person in any conveyance for the purpose of prostitution, lewdness, or assignation. McNeil could very well have been arrested for agreeing to receive Officer Giblin in his car for one of those purposes. To the extent that it could be implied that he intended for the sexual acts to occur in his car, he might also have been charged under § 15(b) -- occupying a conveyance for the purpose of prostitution, lewdness, or assignation. He might have been charged under § 15(d) -- agreeing to transport a person to "any place" with knowledge that the purpose of the transporting was prostitution, lewdness, or assignation.

   Were we inclined to agree with McNeil that the[***12] offense of solicitation for the purpose of prostitution does not apply to the conduct of a prospective customer, we would most likely have recalled the writ of certiorari and dismissed the petition as improvidently granted. As we do not agree with that view, however, we shall address the issue framed by him and, at least in its answer to the petition, accepted by the State.

   Statutory Intent And Construction

   The principal issue before us is purely one of statutory interpretation -- the scope and meaning of § 15(e). As we [*404] have so often said, "in dealing with the issue of statutory construction, our goal is to discern and effectuate the intent of the legislature at the time it enacted the statute." In Re Adoption No. 12612, 353 Md. 209, 233, 725 A.2d 1037, 1049 (1999). If the statutory language is clear and unambiguous and is consistent with the purposes of the legislation in general and the particular provision being interpreted, our inquiry usually ends at that point. If the language is unclear or ambiguous, "we seek to discern the intent of the legislature from surrounding circumstances, such as legislative history, prior case law, and the purposes [***13]upon which the statutory framework was based." Id. at 233-34, quoting from Philip Electronics v. Wright, 348 Md. 209, 217, 703 A.2d 150, 153 (1997). McNeil concurs in this approach, noting that, because the statutory language has not changed since its enactment in 1920, consideration of the meaning of the language "in the context of the statute's setting and objectives requires that the Court 'recur to the history of the times when it [**85] was passed; and this is frequently necessary in order to ascertain the reason as well as the meaning of particular provisions in it.'" Petitioner's Brief at 6, 7, quoting in part from Barnes v. State, 186 Md. 287, 291, 47 A.2d 50 (1946).

   As noted, § 15(e) makes it unlawful "to procure or to solicit or to offer to procure or solicit for the purpose of prostitution, lewdness, or assignation." Read literally, giving the words their ordinary common meaning, that provision would seem, clearly, to apply to anyone who solicits for the purpose of prostitution -- the prostitute or his/her agents who solicit potential customers and potential customers who solicit the prostitute. If we were to look only at [***14]§ 15(e), therefore, we would conclude, as the California court did in Leffel v. Municipal Court, 54 Cal. App. 3d 569, 126 Cal. Rptr. 773 (Cal. App. 1976), that there is no ambiguity and that the statute applies to solicitations made by the potential customer of a prostitute. McNeil's argument hinges principally on the definition of "prostitution" in § 16, however -- "the offering or receiving of the body for sexual intercourse for hire." (Emphasis added.) His point is that, in a prostitute/customer [*405] relationship, only the prostitute's acts are done "for hire," i.e., for compensation of some kind. From this, he jumps to the conclusion that a person "solicits for the purpose of prostitution if his or her purpose is to offer or receive the body for sexual intercourse and to perform that act for hire, i.e., for payment or compensation for the services rendered" and that "that individual is the prostitute, not the customer."

   A second strand of his argument, based on the most cursory historical analysis, is the assumption that the 1920 Legislature that enacted the predecessor to § 15(e) -- §§ 19, 19A, and 19B of Article 27 as it appeared in the 1914 Code -- was[***15] so infected by a sexual double standard that it could not have intended the law to punish men who solicit women to engage in acts of prostitution, but only the female prostitutes themselves. n5 McNeil is wrong in both his statutory and his historical analysis, the two of which are intertwined.

n5 There are, and likely always have been, male prostitutes, but, at least in modern history, the great majority of professional prostitutes have been women with male clients, J. DECKER, PROSTITUTION REGULATION AND CONTROL (1979), at 16-17, and the principal focus of the anti- prostitution reform movement in this country has always been on the female prostitute.

   McNeil may well be correct in ascribing an unfortunate gender bias to members of the 1920 General Assembly, for it was in that session that the Legislature refused to ratify the 19th Amendment to the United States Constitution, affording women the right to vote. But whatever social or political perspective may have induced that result, the evidence does not suggest[***16] a pernicious double standard with respect to the law in question here; indeed, when the entire enactment is read together, in harmony with the zeitgeist in which it was enacted, the only reasonable inference is to the contrary.

   The 1920 law dealing with prostitution was not a legislative afterthought. It was, instead, part of a movement that was national in scope and that had a considerable history, both in Maryland and elsewhere. It is not necessary for us, in this Opinion, to recount the full history of efforts to combat [*406] prostitution and its related evils. Several excellent works have been done on that subject. n6 It is important to consider [**86] some of those efforts, however, for they have a bearing on what we perceive to have been the legislative intent.

n6 See, for example, J. DECKER, PROSTITUTION: REGULATION AND CONTROL, supra; R. ROSEN, THE LOST SISTERHOOD: PROSTITUTION IN AMERICA, 1900-1918 (1982); R. SYMANSKI, THE IMMORAL LANDSCAPE: FEMALE PROSTITUTION IN WESTERN SOCIETIES; H. BENJAMIN AND R. MASTERS, PROSTITUTION AND MORALITY (1964); D. LANGUM, CROSSING OVER THE LINE: LEGISLATING MORALITY AND THE MANN ACT; V. BULLOUGH AND B. BULLOUGH, WOMEN AND PROSTITUTION: A SOCIAL HISTORY (1987); B. HOBSON, UNEASY VIRTUE: THE POLITICS OF PROSTITUTION AND THE AMERICAN REFORM TRADITION (1990); T. MACKEY, RED LIGHTS OUT: A LEGAL HISTORY OF PROSTITUTION, DISORDERLY HOUSES, AND VICE DISTRICTS, 1870-1917 (1987); H. WOOLSTON, PROSTITUTION IN THE UNITED STATES (1921); M. CONNELLY, THE RESPONSE TO PROSTITUTION IN THE PROGRESSIVE ERA (1980).

[***17]

   We may begin by observing that, under English common law, although prostitution itself was not a crime, lewdness was punishable. Blackstone reports as an "offense" cognizable by the temporal courts "open and notorious lewdness: either by frequenting houses of ill fame, which is an indictable offense; or by some grossly scandalous and public indecency, for which punishment is by fine and imprisonment." He notes also that, in 1650, the "repeated act of keeping a brothel" and a second conviction for "committing fornication" were made felonies without benefit of clergy, but, at the restoration of Charles II, "it was not thought proper to renew a law of such unfashionable rigour," and those offenses were thereafter "left to the feeble coercion of the spiritual court, according to the rules of the canon law." WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND, Vol. IV, Ch. 4, XI, at 64 (1769). Under Blackstone's conception of "lewdness," which differs considerably and is far broader than as defined in § 16 of Article 27, it appears that customers of the brothels -- those who frequented houses of ill repute -- were, indeed, subject to criminal sanction. Hawkins confirms that[***18] view, noting that one of the duties of constables was to arrest those who "resort to bawdy-houses, or keep suspicious company." W. HAWKINS, PLEAS OF THE CROWN, Vol. II, § 304 at 98 (1824); also M. HALE, HISTORIA PLACITORUM CORONAE, Vol. 2, at 88-89 (1847). [*407]

   We may assume that those common law principles applied in Maryland during the colonial period and were incorporated into our State common law in 1776 pursuant to Article 5 of the Declaration of Rights. Unsatisfied with the common law offenses, however, in 1715, by ch. 27, the Governor, Council, and Assembly made it a separate criminal offense, directly or indirectly, to entertain, provide for, or "frequent" any "lewd" woman after being admonished by the local minister, vestry, or churchwarden. The penalty for that offense was initially set at 30 shillings of money or 600 pounds of tobacco, in default of which the offender was subject to as many as 39 lashes. Our colonial and early Statehood tradition, therefore, clearly subjected the male customers of women who would now be (and likely were then) regarded as prostitutes, to criminal sanctions.

   Although such women also could be prosecuted under a variety of laws, including those[***19] against adultery and fornication, n7 as a general rule prostitution itself was not prosecuted criminally in Maryland or other States prior to the end of the 19th Century. Rosen notes that "before the Progressive Era, Americans condemned prostitution but did not classify it as a criminal offense" and that "social disapproval of prostitution was expressed through sporadic and unofficial harassment." In the 18th and early 19th centuries, she reports, the harassment was carried out mainly by gangs that acted as a kind of informal police and that "punished prostitution as they punished other violations of community standards, by mob attacks." THE LOST SISTERHOOD, supra, at 4. She continues that, by the mid-19th Century, "the task of harassing prostitutes had been taken over by the professional police departments just then being formed in major cities" and that prostitutes, madams, and procurers could be arrested, at the [*408] discretion of the police, on charges of lewdness, vagrancy, or keeping a disorderly house. Id. See also THE IMMORAL LANDSCAPE, supra, at 83.

n7 Fornication, along with adultery, was an offense at common law and was recognized as such in Maryland as early as 1654. See ARCHIVES OF MARYLAND, Vol. I at 344-45. At least after 1749, if not before, the fornication law seemed to be invoked principally to deal with births out of wedlock. See Oldham v. State, 5 Gill 90 (1847); Owens v. State, 10 Md. 164 (1857). It was repealed in 1785.

[***20]

   [**87] Beginning near the end of the 19th Century, however, and continuing through the first two decades of the 20th, societal interest in prostitution sharpened, leading to the enactment of specific anti-prostitution laws of one kind or another in most of the States. The scholars, who are not always in agreement with one another, posit several causes and impetuses for the movement, some focusing on the plight of the women entering and populating that profession, others on the penumbral ills thought to emanate from its increasing commercialization. Decker suggests five spurs: (1) a zealous moralistic campaign against vice generally; (2) an offshoot of the growing temperance movement -- the linking of prostitution with the abuse of alcohol, especially in the brothels; (3) attempts, mostly on the part of women's organizations, to combat the double standard that demanded continence from women, but not from men; (4) concerns over the spread of venereal disease, which many attributed to prostitutes; and (5) a belief that there was organized trafficking in women for the purpose of prostitution. PROSTITUTION: REGULATION AND CONTROL, supra, at 67-69. There was also a concern over political corruption [***21] emanating from the brothels. A Vice Commission appointed in Maryland, of which we shall say more later, reported in 1915 "an incontestable fact that the disreputable saloons, gambling houses, houses of prostitution and disreputable furnished room houses [in Anne Arundel and Baltimore Counties] were all assured protection, provided they paid a certain sum of money or a certain pecuniary equivalent." MARYLAND VICE COMMISSION REPORT (1915), Vol. 4 at 1.

   Prostitution followed quickly on the heels of the European settlements on the East Coast, the expansion westward, and Chinese immigration to the West Coast. Though practiced in the rural areas, it became more prevalent and more noticeable with the urbanization and industrialization of America, as young women emigrated from Europe or left the villages and farms in the United States to find work in the burgeoning [*409] cities. Jane Addams noted in 1909 that "never before in civilization have such numbers of young girls been suddenly released from the protection of the home and permitted to walk unattended upon city streets and to work under alien roofs." CROSSING OVER THE LINE, supra, at 17, citing J. ADDAMS, THE SPIRIT OF YOUTH AND THE[***22] CITY STREETS (1909). Rosen points out that whereas in 1860 less than 10% of women worked in the labor force, by 1910 nearly 25% of the female population worked outside the home. THE LOST SISTERHOOD, supra, at 43.

   The lot of these women was not always an easy one. Many of those who did not marry well or were not otherwise adequately supported by their families worked long hours for bare or sub-subsistence wages in domestic service or as laundry or factory employees. Melding into the economic imperatives facing some of those women was what Langum has characterized as the "alarming liberalization in sexual habits and attitudes, at least among young people of the working class." CROSSING OVER THE LINE, supra, at 17; also THE RESPONSE TO PROSTITUTION IN THE PROGRESSIVE ERA, supra, at 28-47. Langum and the Bulloughs note the greater number of men over women in the cities, leading some women to "flock[] to the dance halls and other places of amusement, often as a means of finding male companionship, and the open sexuality of their behavior, the new and untraditional dance forms, the drinking, and the hugging and kissing in public, shocked middle-class Americans." CROSSING[***23] OVER THE LINE, supra, at 19-20; WOMEN AND PROSTITUTION, supra, at 216. The perceived loosening of the higher moral values then expected of women was noted in Maryland as well, particularly in Baltimore. As noted by PAMELA HAAG, "COMMERCE IN SOULS": VICE, VIRTUE, AND WOMEN'S WAGE WORK IN BALTIMORE, 1900- 1915, 86 Md. Hist. Mag. 292, 293 (1991):

   "Victorian conceptions of the 'scarlet woman,' foundered in the drastically transformed urban culture that reform-minded [**88] Baltimoreans confronted in the early twentieth century. With a population of 450,000 -- a 100 percent increase from 1870 -- Baltimore in 1913 displayed a panoply of cultures [*410]and 'public women,' female wage earners who walked the streets, socialized in dance halls and alleyways, adorned themselves with make-up and, with these traits, complicated the urban middle class's attempts to understand their morality with the anachronistic nineteenth century terms of virtue and vice. . . .

   Progressive reformers -- all college-educated, predominantly of the professional or entrepreneurial classes, dramatically represented in Baltimore's Social Register -- found Baltimore's newly incorporated economy and the 'lights and shadows' [***24] it generated profoundly disturbing and compelling."

   The jolt to Victorian values from this general activity may, itself, have generated some of the reform movement that eventually turned its attention to the more pernicious "social evil" of prostitution, but the increasing commercialization of that calling was a particular, and possibly the more significant, spur. n8 As Rosen observes:

n8 Some authors suggest that the shock over the apparent loosening of feminine moral values really stemmed from the view held by some at the time that men were innately unable to control their sex drive and that female sexuality was non-existent. See THE LOST SISTERHOOD, supra, at 5, 6. From that premise, it was a small step to regard prostitutes as truly "fallen women" -- an aberrant subclass of women with a depraved and irredeemably lost reputation. Rosen notes that "the belief that a virtuous woman could so easily become sexually depraved indicates an underlying male ambivalence about women's alleged asexuality." Id. at 6. There was a policy implication to that view, however, namely, the notion that prostitution actually served the useful purpose of providing an escape for the uncontrollable sexual appetite of men, and thus protected the more pure classes of womanhood. Rosen records the view expressed by W. LECKY, HISTORY OF EUROPEAN MORALS, 2:282-83, that "the prostitute thus functions as the 'protector of the home,'" and "ultimately the most efficient guardian of virtue" in "servicing men's sexual needs as other women could not . . . ." Those holding that view, which included many women prominent in the reform movement, were often averse to abolishing prostitution.

[***25]

   "Although prostitution had always been a commercial transaction, the striking changes in the scale of its commercialization just before the turn of the century made it seem especially dehumanizing and most flagrantly immoral. It [*411]had evolved from a small-scale, informal operation to a highly organized business that reaped vast profits and maintained connections with numerous third-party agents, including liquor interests, landlords, police, and politicians."
 
THE LOST SISTERHOOD, supra, at 42; see also PROSTITUTION AND MORALITY, supra, at 96.

   Reports began to surface -- some exaggerated, some well-founded -- of girls and young women being imported into the country from Europe and sold into economic and physical bondage as prostitutes; hence the notion of the "white slave." As early as 1875, the United States prohibited the importation of women for the purpose of prostitution (Act of Mar. 3, 1875, ch. 141, 18 Stat. 477 (repealed 1974)), and, in 1905, the Senate ratified an international treaty aimed at curtailing the trafficking of women for that purpose. International Agreement for the Suppression of the White Slave Traffic, May 18, 1904, 35 Stat. 426, 1 L.N.T. [***26] S. 83. Sensational stories, fanned by the news media, of the domestic interstate trafficking of women for prostitution and of young girls being held in confinement in brothels eventually led to enactment in 1910 of both State and Federal legislation aimed at curbing that activity. With only token opposition, Congress enacted the Mann Act, making it a felony, among other things, (1) to transport or aid in the transporting of a woman or girl in interstate commerce for the purpose of prostitution, debauchery, or any other immoral purpose, or (2) to persuade or assist in persuading a woman to travel in interstate [**89] commerce for such a purpose. n9 The Maryland [*412] Legislature, in the same year, enacted a comprehensive pandering law making it a felony to place a female in a house of ill fame or assignation against her will for purposes of prostitution, to place a female in a house of prostitution for immoral purposes (even if not against her will), to receive money for procuring or placing a female for the purpose of causing her to cohabit with a male person, to knowingly receive anything of value, without bona fide consideration, from the earnings of a woman or girl engaged in prostitution, to[***27] detain a girl or woman in a house of prostitution because of debts she contracted while living there, or to transport a woman or girl in any conveyance for the purpose of prostitution. See 1910 Md. Laws, ch. 25 at p. 92. Those provisions, as subsequently amended, now are codified as Article 27, §§ 426 - 433.

n9 Some scholars have expressed the view that, while there were instances of organized trafficking in women for purposes of prostitution, the incidence of it was exaggerated. Langum notes: "Subsequent historians have disagreed about white slavery. Many students of the period have attributed the entire hysteria to a moral panic. Others have accepted that a considerable number of women were coerced prostitutes, while still another estimates that the extent of unwilling prostitutes was only about ten percent." CROSSING OVER THE LINE, supra, at 35. Rosen agrees that "in their attempt to eliminate prostitution, reformers tended to exaggerate the extent of white slavery to prove the evils of uncontrolled and openly tolerated red-light districts." THE LOST SISTERHOOD, supra, at 114. Decker reports that later investigations showed that prostitution in the United States at the turn of the century "was not (1) very 'organized,' (2) part of an elaborate 'trafficking' scheme, (3) involving only 'white' persons, nor (4) except for remote instances, actually 'slavery.'" PROSTITUTION; REGULATION AND CONTROL, supra, at 69-70. Compare, however, IMPORTING WOMEN FOR IMMORAL PURPOSES, Partial Report to Sixty-first Congress of the Immigration Commission, Sen. Doc. 196 (1909).

[***28]

   Apart from the attempt to control the "white slave" traffic through the Mann Act, most of the Federal concern over prostitution was directed at controlling venereal disease among the troops during World War I. In 1918, Congress made it unlawful to engage in, aid, or abet prostitution, procure or solicit for the purposes of prostitution, set up or operate a brothel, or receive "any person" in any vehicle, conveyance, place, or structure for purposes of lewdness, assignation, or prostitution within a reasonable distance of any military encampment. See 40 Stat. 885-86 (1918). There is a reference in Symanski's work to a "model Standard Vice Repression Law" drafted in 1919 by "the federal government,"  see THE IMMORAL LANDSCAPE, supra, at 83, but, even with the assistance of the Maryland State Library and the Library of Congress, we have been unable to locate it. Most of the energy was expended at the State and local level. [*413]

   Maryland long recognized as common law offenses the keeping of a "disorderly house" and the keeping of a "bawdy house." A bawdy house was any place, including a room, a boat and a vehicle, kept open "for licentious commerce." Lutz v. State, 167 Md. 12, 16, 172 A. 354, 356 (1934).[***29] Keeping a disorderly house was the broader offense, and, indeed, included keeping a bawdy house. Reynolds v. State, 219 Md. 319, 325, 149 A.2d 774, 778 (1959); Curley v. State, 215 Md. 382, 390, 137 A.2d 640, 644 (1958). Until the last decade of the 19th Century, there were no fixed penalties for those offenses. In 1890 and 1892, the Legislature provided a penalty of six months and $300 for keeping a disorderly house and one year and $500 for keeping a bawdy house. See 1890 Md. Laws, ch. 523; 1892 Md. Laws, ch. 522. Available records show that those laws were enforced, at least in Baltimore City. n10 As noted, those laws were strengthened [**90] in 1910 with the enactment of the more comprehensive pandering law.

n10 The Reports of the Board of Police Commissioners of Baltimore City for 1917, 1918, and 1919 show 20, 25, and 8 arrests, respectively, for keeping a bawdy house. The majority of the persons arrested were women, which tends to confirm the findings of the Maryland Vice Commission that the brothels were run by madams. Although some of the defendants were dismissed at the station house level, most were prosecuted in criminal court. See REPORT OF THE BOARD OF POLICE COMMISSIONERS FOR THE CITY OF BALTIMORE (1917) at 29; (1918) at 28; (1919) at 30.

[***30]

   The reform movement was never of a single mind as to how best to control prostitution. Some were determined to abolish the practice entirely; others sought to adopt the system in vogue in some European cities of regulating prostitution by requiring that it be practiced in licensed brothels, where the women could be medically examined on a periodic basis; some desired to have the brothels concentrated in specific "red light" districts. Although the regulationists were initially in the ascendancy, by the end of the 19th Century the movement to regulate waned and the abolitionists predominated. THE LOST SISTERHOOD, supra, at 7-13; WOMEN AND PROSTITUTION, supra at 222-224. The attack on the brothels did not produce the desired result, however, and, in some respects, was counter-productive. [*414] For one thing, many prostitutes did not operate out of brothels, but plied the streets. The Maryland Vice Commission reported that only 10% of the professional prostitutes in Baltimore were housed in brothels. MARYLAND VICE COMMISSION REPORT, supra, Vol. 1 at 370. As brothels were closed, some of the women working in them simply moved to other cities; others were added to the ranks of the[***31] streetwalkers, often falling under the control of pimps and incurring greater risk of injury from their customers. Few, it is reported, gave up the profession. They simply searched for business on the streets and in public places, causing arrests for streetwalking to jump. THE LOST SISTERHOOD, supra, at 32-33.

   Between 1910 and 1920, cities and States throughout the country began creating vice commissions to examine the problem. At least 44 such commissions existed, including, as noted, one in Maryland, appointed by Governor Goldsborough in 1913. The Commission consisted of 14 persons, and it proceeded to make a comprehensive study of prostitution in Baltimore City, Anne Arundel and Baltimore Counties, and the cities of Frederick, Hagerstown, and Cumberland. In its 1915 five-volume, 800-page report, the Commission documented many of the circumstances and trends noted by similar commissions in other States and, ultimately, by the authors cited above. Although many of the doctors, lawyers, and other citizens the Commission surveyed recommended segregating, but tolerating, brothels, the Commission itself took a different approach, insisting that all brothels be closed and that the[***32] law target all third parties who profited from the work of the prostitutes. It summed up its view thusly:

   "The effort should consist in trying to suppress the third party concerned, -- that is, the person who is profiting by the immorality of others; who is commercializing it for his own gain; who is inducing men and women to have the sex relation in order that his[ n11 ] income may be increased; and [*415] who is stimulating the traffic beyond the bounds to which it would be carried by the natural sex instinct."

n11 Use of the masculine pronoun in this passage probably should be taken as including women as well. Throughout its Report, the Vice Commission made reference to the predominance of women -- madams -- who ran the brothels, and it regarded them as a particularly evil and predatory group.

 
Id. at 445-446.

   The Commission expressed the belief that "there is something fundamentally wrong with the character and mentality of the majority of women who accept the life of a prostitute" and doubted[***33] that there was "very little chance of reformation" for most of them (id. at 174), but its overall view seemed to be sympathetic to the prostitutes, if not to the madams, pimps, and other intermediaries. The Commission reported that poverty, low mentality, separation, immorality of one or both parents, [**91] and alcohol were the predominant factors in their family background, and that those who had been married before becoming prostitutes reported separation, non-support, marital disharmony, alcohol, and mistreatment. It was able to persuade 266 prostitutes to submit to medical examinations and found that 257 of them suffered from either syphilis or gonorrhea. See MARYLAND VICE COMMISSION REPORT, supra, Vol. 1 at 105. Throughout its Report, the Commission noted the multiple vulnerability of the prostitutes.

   Although the Commission's clear principal aim was at the madams, pimps, and other procurers and intermediaries -- including cab drivers, waiters, hotel bellboys, bartenders, and apartment janitors -- rather than the prostitutes or their customers, the immediate legislative response was directed at the female prostitutes. It may be that the General Assembly thought at the time[***34] that the intermediaries had been sufficiently targeted and dealt with through the 1910 legislation on pandering and that the problem was one of law enforcement. By 1916 Md. Laws, ch. 653, the Legislature added to § 866 of the public local laws of Baltimore City, dealing with vagrants and vagabonds, a provision declaring that "every female person who shall solicit or procure or attempt to solicit or procure or who shall walk the streets for the purpose of soliciting or procuring any male person or persons to engage in sexual [*416]intercourse or in any other immoral practice with her or any other person for compensation or reward shall be deemed a common prostitute." Under §§ 867-873 of those public local laws, police officers were authorized, without a warrant, to arrest and remove to a station house any person charged with violating § 866. The arrestee could be tried at the station house before a justice of the peace or sent for trial to the Criminal Court of Baltimore, both having concurrent jurisdiction, and, upon conviction, the person was subject to imprisonment for a year and a $500 fine. n12

n12 The 1916 law followed an approach that was not uncommon at the time. In 1892, Congress enacted a law for the District of Columbia making it unlawful for "any prostitute or lewd woman to invite, persuade, or to address for the purpose of inviting, enticing, or persuading any person . . . for the purpose of prostitution." See Dinkins v. United States, 374 A.2d 292, 297 n.3 (1977).

[***35]

   Immediately upon the enactment of this public local law, the Baltimore City police began arresting women as "common prostitutes" -- the statutory term. See REPORTS OF THE BOARD OF POLICE COMMISSIONERS, supra (1918) at 32; (1919) at 34. In 1918, by 1918 Md. Laws, ch. 83, the Legislature made it a Statewide misdemeanor to transport or aid or assist in transporting any person over any public way, in a public conveyance for hire, for purposes of prostitution or any other immoral or lewd purpose. It also, by 1918 Md. Laws, ch. 84, made it a statutory nuisance to maintain any place for purposes of lewdness, assignation, or prostitution. Such a nuisance was subject to abatement by injunction, upon petition by the State's Attorney, the Attorney General, or any citizen, and, upon any violation of an injunction, the violator was subject to a finding of contempt punishable by imprisonment for not less than three months nor more than six and a fine of $200 to $1,000. That approach, of using the civil law to abate the brothels, was then a common one among the States, having been inaugurated by Iowa as early as 1909. See WOMEN AND PROSTITUTION, supra, at 283. 

    It is with this[***36] background that the Legislature, in 1920, enacted what is now § 15 of Article 27. Several things are [*417] apparent from that enactment. The most obvious and significant is that, in contrast to the 1916 statute, which applied only to "female persons who shall solicit" male customers for the purpose of prostitution and to the 1910 statute, which, though broad, still focused on pandering, the 1920 law was far more comprehensive. It extended beyond prostitution to include lewdness and assignation as well. It extended beyond the [**92] activity covered in the 1910 law -- the operation of brothels and other places used for prostitution, and the procurement and transporting of women for that purpose -- to target, for the first time, the soliciting of persons for that purpose, and the actual engaging in prostitution. In contrast to the 1910 and 1916 laws, it was also, in every important aspect, entirely gender-neutral in both language and approach. n13 In those regards, it followed closely the Federal legislation enacted during World War I. See 40 Stat. 885-86, supra.

n13 The only gender reference in the Act was the provision in § 19B that no girl or woman convicted under the Act could be placed on parole or probation in the care or charge of any person other than a woman probation officer designated by law or the court. That provision, obviously, was intended for the protection of the female defendant -- usually the prostitute.

[***37]

   The contrast, simply in language, with the 1916 approach is significant. Also significant is how the 1920 law was immediately perceived by the law enforcement community. Until advised otherwise by the Attorney General in 1922 (see 7 Op. Atty. Gen. 103), the Baltimore City police operated on the assumption that the 1920 Act did not abrogate by implication the 1916 public local law, so they enforced both. In 1920, they arrested 253 females and no males as common prostitutes under the 1916 law, but arrests were reported for 50 males and no females for "Prostitution, Lewdness and Assignation" under the 1920 law. REPORT OF THE BOARD OF POLICE COMMISSIONERS, supra (1920), at 34. The same pattern is revealed for 1921. See id. (1921) at 35. After being informed by the Attorney General that the 1916 law had been superseded, the arrests were only under the 1920 law, and the Reports show that a significant number of men were arrested. See id. [*418] (1922) at 42 (115 males, 327 females); (1923) at 43 (140 males, 223 females); (1924) at 44 (52 males, 195 females). Although the conduct underlying these charges against the men is not specified, it seems clear that the charges[***38] did not arise from pandering, operating bawdy houses, or white slave law violations, as those categories were separately stated in the arrest reports, and it is not likely, in those years, that the men were, themselves, prostitutes. It would seem evident, then, that the police, at least in Baltimore City, where the problem seemed to be the greatest, construed the 1920 law as applying to both the prostitutes and their patrons. n14

n14 A review of the annual reports of the Police Commissioner reveals that, in Baltimore City, the arrest of males under the prostitution statute has continued since those early days. In 1959, the police department subdivided the offense for reporting purposes and showed the arrest of 100 women and no men for prostitution, 11 men and 3 women for pandering, and, significantly, 42 men and 43 women for soliciting and procuring. That pattern was evident in 1960 and 1961 as well. See REPORT OF POLICE COMMISSIONER (1959) at 34-35; (1960) at 34-35; (1961) (no page number).

   We concluded[***39] as much in Lutz v. State, supra, 167 Md. 12, 172 A. 354. The issue there was whether the 1920 law had repealed by implication the common law offense of keeping a bawdy house, for which the defendants had been arrested and convicted. After comparing the common law and statutory offenses, we held that they were directed at different objects -- that the common law offense dealt with the specific nuisance of maintaining "a blatant and noisome establishment for licentious commerce, irrespective of whether such commerce involved hire or payment," whereas the statute "is directed at the suppression of sexual vice and perversion practiced for gain, and condemns equally those employed in connection with the commerce, the patrons of the establishment used therefor, and the keeper thereof." Id. at 16-17, 172 A. at 356 (emphasis added). As McNeil points out, Lutz was concerned with bawdy houses, rather than solicitation for prostitution, but it does indicate our view, 65 years ago, that the legislative intent was to achieve the "suppression of sexual vice and perversion [**93] practiced for gain" by punishing "equally [*419] those employed in connection with the[***40] commerce," including the patrons.

   The case principally relied on by McNeil is In Re Appeal No. 180, 278 Md. 443, 365 A.2d 540 (1976), a case that, in fact, supports our view that the law applies to those who solicit prostitutes. A 15-year-old girl approached an undercover male police officer and offered to perform sexual intercourse with him for $25. For that conduct, she was found to be a delinquent child, on the premise that, had she been an adult, she would have been guilty of soliciting for prostitution under § 15(e). Presuming that the word "solicit," as used in § 15(e), has the same meaning as in the common law crime of solicitation, her argument -- the exact converse of McNeil's -- was that a prostitute cannot be convicted under § 15(e) for soliciting a customer because (1) the crime of solicitation requires the inducement of another to commit a crime, (2) prostitution is the offering or receiving of the body for sexual intercourse for hire, (3) as the customer does not offer or receive his/her body for hire, the customer does not commit the crime of prostitution by hiring the body of the prostitute, and (4) because the customer would not therefore commit[***41] the crime of prostitution by performing the act, he/she is not being induced to commit that crime by the conduct of the prostitute.

   We found that argument "interesting and esoteric," but not persuasive. We held that the word "solicit," as used in § 15(e) "is to be read in the terms of its ordinary meaning and not with reference to the common law offense of solicitation." Id. at 443-44, 365 A.2d at 540. That, of course, destroyed the foundational underpinning of the argument. In reaching that conclusion, we considered the context in which the word "solicit" was used in other statutes and in cases from other States, and we also cited some standard dictionary definitions. McNeil finds comfort in the fact that some of the dictionary definitions and cases that we cited speak in terms of a woman or a female prostitute accosting a male. In the context of the case then before us, those articulations were not inappropriate, for that was the situation at hand. In holding that the Legislature intended the word "solicit" to be read broadly and [*420] not in the limited manner of the common law offense, we did not need to determine whether the potential customer also could be criminally[***42] liable if he/she was the one who made the overture. It follows, however, that, if, as we held, the term has its "ordinary meaning . . . as understood and used by the general public," id. at 452, 365 A.2d at 544-45, it would necessarily include the conduct of the potential customer in soliciting the prostitute. The definition of "solicit" provided in WEBSTER'S NEW UNIVERSAL UNABRIDGED DICTIONARY is:

   "1. to ask or seek earnestly or pleadingly; to beg; to entreat; as, we solicit your support, he solicited them for help.

   2. to tempt or entice (another) to do wrong.

   3. to accost (another) for some immoral purpose, as a prostitute does.

   4. to disturb; to disquiet. [Rare.]"

   Any one of the first three definitions would suffice as an "ordinary meaning . . . understood and used by the general public." Even the third, which has the closest nexus to the issue before us, references a solicitation by a prostitute only as an example, not as a limitation. An entreaty, or offer, by a potential customer also qualifies as an accosting for some immoral purpose.

   Given the historical background of § 15(e), as we have recounted it, and the construction we have placed on[***43] that section in Lutz and Appeal No. 180, it is clear to us that the crime of soliciting for prostitution stated in that statute covers the conduct both of the prostitute (and his/her agents) in soliciting potential customers and of the potential customer in soliciting the prostitute. We have considered the cases in other States cited by the parties and shall comment briefly on them. The [**94] more relevant ones support the conclusion that we reach as a matter of Maryland law.

   McNeil calls our attention to In re Carey, 57 Cal. App. 297, 207 P. 271 (Cal. App. 1922), cited by us in Appeal No. 180, as well as People v. Jones, 245 Ill. App. 3d 810, 615 N.E.2d 391, 185 Ill. Dec. 832 (Ill. App. 1993), State v. Chandonnet, 124 N.H. 778, 474 [*421] A.2d 578 (N.H. 1984), and People v. Anonymous, 161 Misc. 379, 292 N.Y.S. 282 (1936) as supporting his view that § 15(e) applies only to the conduct of the prostitute. We shall deal with Carey first. It is a 1922 decision of an intermediate appellate court that reeks with a condescending attitude that has no place in today's jurisprudence. The opinion contains repeated allusions to the "fallen[***44] woman," who, in the mind of the authoring judge, "presents a greater single element of economic, social, moral, and hygenic loss than is the case with any other single criminal class." 57 Cal. App. at 304. That extraordinary notion aside, the court reached the conclusion that the gender-neutral language of then-current California solicitation law applied only to female prostitutes who solicit male customers on the wholly inaccurate belief that "men cannot commit the crime of carrying on the business of prostitution." Id. In the later, and far more sensible, case of Leffel v. Municipal Court, supra, 54 Cal. App. 3d 569, the California court declared the language used in Carey to be anachronistic and its holding that solicitation for prostitution can only refer to the act of the female prostitute in soliciting patrons for her business as "dictum and not binding as precedent." Id. at 575. The Leffel court held that the statutory language "every person . . . who solicits . . . any act of prostitution" means what it says and that "all persons, customers as well as prostitutes, who solicit an act of prostitution are guilty . . . . [***45] " Id. If Carey is not precedent in California, it has no value in Maryland. We regret having cited it in Appeal No. 180.

   The other cases cited by McNeil, and a number of others not cited by him, do, indeed, construe the statutes at issue in those cases as not applying to the conduct of a potential customer. Most of those cases are distinguishable on their facts. They either construe statutory language that is unlike § 15(e) or are based on specific legislative history from which a clear intent to exclude the conduct of potential customers is evident. In People v. Jones, supra, 615 N.E.2d 391, the court held that the Illinois solicitation statute at issue applied only to panderers and [*422] other intermediaries and did not apply either to the prostitute or the customer. As we made clear in Appeal No. 180, that is not the case with respect to § 15(e). In State v. Chandonnet, supra, 474 A.2d 578, the court relied, as evidence of legislative intent, on the report of the commission that drafted the law, which stated, expressly, that the law did not prohibit patronizing a prostitute. In State v. Wilbur, 110 Wash. 2d 16, 749 P.2d 1295 (Wash. 1988),[***46] the court simply held that a statute criminalizing only prostitution did not apply to the soliciting conduct of a potential customer. See also Eisner v. Commonwealth, 375 S.W.2d 825 (Ky. App. 1964).

    People v. Anonymous, supra, is of little value. For one thing, it is the decision of a single magistrate sitting in Brooklyn. Interestingly, it notes an earlier decision of the Court of General Sessions, People v. Edwards, 180 N.Y.S. 631 (1920), reaching the conclusion that the New York equivalent of our solicitation law did, indeed, apply to the conduct of the customer, but declares that decision dicta and declines to follow it. We are more persuaded by the 1920 dicta, enunciated at the very time our Legislature was considering the statute now before us. The New York statute at the time declared that "a person" who in any manner induces, entices, or procures a person to commit acts of lewdness, fornication, unlawful sexual intercourse, or other indecent acts was a vagrant. The Edwards court declared that "a person" includes [**95] men as well as women, and that "a man who induces, entices, or procures a woman to commit prostitution,[***47] either with himself or another, is a vagrant, and the man who aids or abets or participates in the commission of prostitution by a woman is a vagrant, and in either case is equally guilty as the woman." Edwards, supra, 180 N.Y.S. at 634-35. The court in Edwards went on to state a truism that bears repetition 80 years later:

   "The court is aware that it has been the custom heretofore followed to arrest the women and let the men go; but the time has come when the custom cannot longer be permitted to continue . . . . The practical application of the law as heretofore enforced is an unjust discrimination against [*423] women in the matter of an offense which, in its very nature, if completed, requires the participation of men."

   We note that, in addition to California, the District of Columbia has interpreted its solicitation for prostitution statute as applying to the conduct of the customer and has affirmed convictions of customers for soliciting undercover police officers posing as prostitutes. See Thompson v. U.S., 618 A.2d 110, 112 (D.C. App. 1992) and cases cited therein.

   Probable Cause

   As an alternative argument, presented in the context[***48] of whether there was probable cause for his arrest, McNeil contends that, even if § 15(e) applies to the conduct of a potential customer, in this case it was Officer Giblin who solicited him, not he who solicited her. By walking the streets in "a known prostitution area," dressed in suggestive attire, she was, in his view, inviting passers-by to do business. No doubt she was -- that is what a sting operation is all about. The point he overlooks is that he beckoned to her, asked if she was working, made clear that he wanted her both to engage in sexual intercourse and perform fellatio, and, when she tacitly agreed, invited her into his car. Although they had not discussed compensation, it was clear from her affirmative response to his inquiry as to whether she was "working" that McNeil expected to pay for the service. Unquestionably, Officer Giblin had probable cause to believe that McNeil had just solicited her to commit an act of prostitution.

   JUDGMENT AFFIRMED; APPELLANT TO PAY THE COSTS.
 
Judge Eldridge concurs in the result only.
 
Concurring opinion follows:

CONCURBY: Raker

CONCUR:  
Raker, J. concurring:

   I join in the judgment of the Court affirming the judgment of conviction [***49]of Petitioner for the crimes of first degree rape, first degree sexual offense, kidnapping and the lesser included offenses. I agree with the majority's conclusion that probable cause existed to support his arrest, and accordingly, the [*424] evidence the police obtained as a result of that arrest was properly admitted into evidence against him. As the majority points out in footnote 4, probable cause to support Petitioner's arrest exists under any number of Maryland statutes.

   To the extent that the majority exercises its discretion to consider the issue as framed by Petitioner, i.e., whether the offense of solicitation for the purpose of prostitution applies to the conduct of a prospective customer, I agree with the majority's conclusion that the statute includes the customer. However, I do not see the need for its unnecessary discussion of the history of prostitution, and I do not share its approach to the historical presentation and some of the inferences and innuendo it suggests. The plain language of the statute and the comparison between the 1920 statute and the 1916 statute lead to the conclusion that the statute includes the conduct of the customer.

   I agree that historically the[***50] criminal justice system has treated female prostitutes and the male customers differently. Nonetheless, I would refrain from attempting [**96] to recount a historical perspective of this subject. n1 If we are to engage in an historical study to answer the question presented in the certiorari petition, i.e., that of the treatment of the customer under the statute, we should focus on the treatment of the customer throughout history, and not the salesperson. I agree with the observation of Ruth Rosen in The Lost Sisterhood, that the "subject of prostitution . . . . can function as a kind of microscopic lens through which we gain a detailed magnification of a society's organization of class and gender: the power arrangements between men and women; women's economic and social status . . . ." R. ROSEN, THE LOST SISTERHOOD: PROSTITUTION IN AMERICA, 1900-1918 at xii (1982). She noted, in my view, correctly, that "writing history from 'above'--from the perspective of reformers who attempted to [*425] eradicate prostitution--would offer a fascinating but class-biased and one-sided picture of prostitution." Id. at xiii.

n1 See C. Chandler, Feminists as Collaborators and Prostitutes as Autobiographers: Deconstructing an Inclusive Yet Political Jurisprudence, 10 HASTINGS WOMEN'S L.J. 135, 141 ("The claim of 'merely describing facts' or stating the truth serves as a powerful rhetorical device.").

[***51]

   Having made the determination to look at the history of prostitution, it is important to explore the perspectives of the feminists and indeed, the prostitutes, "in order to achieve a broad understanding of how Americans of different classes and different sexes experienced and viewed prostitution." Id. See, e.g., M. Baldwin, Split at the Root: Prostitution and Feminist Discourses of Law and Reform, 5 YALE J.L. & FEMINISM 47, 84 (1992); T. Clements, Prostitution and the American Health Care System: Denying Access to a Group of Women in Need, 11 BERKELEY WOMEN'S L.J. 49, 56 (1996); B. Cooper, Prostitution: A Feminist Analysis, 11 WOMEN'S RTS. L. REP. 99 (1989); H. Fechner, Three Stories of Prostitution in the West: Prostitutes' Groups, Law, and Feminist "Truth", 4 COLUM. J. GENDER & L. 26 (1994); A. Lucas, Race, Class, Gender and Deviancy: The Criminalization of Prostitution, 10 BERKELEY WOMEN'S L.J. 47, 49 (1994); A. Stremler, Sex for Money and the Morning After: Listening to Women and the Feminist Voice in Prostitution Discourse, 7 U. FLA. J.L & PUB. POL'Y 189, 196 (1995). Prostitution is far too complex to be viewed solely[***52] from the perspective of the Victorian reformers. 

Holsey v. Administrative Law Judge 
Pet. Docket No. 312, September Term, 1999
 
COURT OF APPEALS OF MARYLAND
 
356 Md. 178; 738 A.2d 854; 1999 Md. LEXIS 619

 October  7, 1999, Decided

NOTICE: 

  [*1]  DECISION WITHOUT PUBLISHED OPINION 

PRIOR HISTORY:  Dismissed by the Circuit Court for  Anne Arundel  County (No. C-99-53778)

OPINION: Petition for Writ of Certiorari Denied. 

ANNE MARIE WHITE et al. v. JOHN C. NORTH, II, CHAIRMAN 
No. 85, September Term, 1998
 
COURT OF APPEALS OF MARYLAND
 
356 Md. 31; 736 A.2d 1072; 1999 Md. LEXIS 507

 September  14, 1999, Filed

   PRIOR HISTORY: [***1] Certiorari to the Court of Special Appeals (Circuit Court for  Anne Arundel  County). Case # C-9633900 AA. Robert H. Heller, Jr., JUDGE.

DISPOSITION: JUDGMENT OF THE COURT OF SPECIAL APPEALS VACATED; CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO VACATE THE JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AND REMAND THE CASE TO THE CIRCUIT COURT WITH DIRECTIONS TO VACATE THE DECISION OF THE BOARD OF APPEALS OF ANNE ARUNDEL COUNTY AND REMAND THE CASE TO THE BOARD OF APPEALS FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION AND BELVOIR FARMS HOMEOWNER'S ASS'N, INC. V. NORTH, 355 MD. 259, 734 A.2D 227 (1999); COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID BY RESPONDENT. 
CASE SUMMARY 

PROCEDURAL POSTURE:  On writ of certiorari to the Court of Special Appeals (Maryland), petitioners sought review of decision which affirmed reversal of a decision granting their request for a zoning variance to construct an in-ground concrete swimming pool in the sloped back yard of their home.

OVERVIEW:  Petitioners sought review of decision which reversed the zoning board's grant of petitioners' request for a zoning variance to construct an in-ground concrete swimming pool in the sloped backyard of their home which was located within the county's critical area. The lower court affirmed the reversal on the ground that "unwarranted hardship," as used in Anne Arundel County Code, art. 3, § 2-107(b) (1996), required a property owner to be deprived of all reasonable use of their property before a variance could be granted. The court held that the correct standard to use in evaluating the requirement of unwarranted hardship was whether the denial of the petitioners' request to build a swimming pool was a denial of a reasonable and significant use. The court remanded the case to the zoning board for reconsideration of their application.

OUTCOME:  Judgment affirming reversal of grant of zoning variance vacated; the correct standard to use in evaluating the requirement of unwarranted hardship was whether the denial of the petitioners' request to build a swimming pool was a denial of a reasonable and significant use.
 
CORE TERMS:  variance, ordinance, pool, unwarranted, hardship, slope, buffer, swimming pool, site, impervious, enjoyed, confer, zoning variance, buffer zone, concrete, swimming, zoning, deck, special privilege, judicial review, neighborhood, patio, area variance, vacate, unconstitutional taking, adjacent property, adversely affect, regulation, construct, accessory

CORE CONCEPTS -  

Environmental Law: Zoning & Land Use: Conditional Use Permits & Variances
Md. Nat. Res. Code Ann. § 8-1802 provides: (a) Definitions: (11)(i) "Project approval" means the approval of development in the Chesapeake Bay Critical Area by the appropriate local approval authority; (ii) "Project approval" includes: 3. Issuance of variances, special exceptions, and conditional use permits.

Environmental Law: Zoning & Land Use
Md. Nat. Res. Code Ann. § 8-1808(a)(1) requires local governments to have primary responsibility for development of programs to regulate land use in the critical area, subject to review and approval by the Chesapeake Bay Critical Area Commission. The program, at a minimum, must include zoning ordinances or regulations. Md. Nat. Res. Code Ann. § 8-1808(c).

Environmental Law: Zoning & Land Use
If a local government opts out of establishing a program to regulate land use in the Chesapeake Bay critical area, the Chesapeake Bay Critical Area Commission is empowered to establish a program. Md. Nat. Res. Code Ann. § 8-1809(b).

Environmental Law: Zoning & Land Use
Md. Nat. Res. Code Ann. § 8-1812 confers full standing to the Chairman of the Chesapeake Bay Critical Area Commission (Commission) to intervene in any administrative or judicial proceeding arising out of local project approval in the critical area, subject to withdrawal if 13 members of the Commission oppose the intervention within 35 days.

Environmental Law: Zoning & Land Use
The Chesapeake Bay Critical Area Commission requires local jurisdictions to create a "buffer." Md. Regs. Code tit. 27, § 01.09.01.C.(1).

Environmental Law: Zoning & Land Use
A buffer is defined in Md. Regs. Code tit. 27, § 01.09.01.A as an existing, naturally vegetated area, or an area established in vegetation and managed to protect aquatic, wetlands, shoreline, and terrestrial environments from man-made disturbances. The buffer must extend at least 100 feet from any tidal waterway, wetland, or tributary of the Chesapeake Bay, but localities must expand the buffer to include contiguous, sensitive areas, such as steep slopes whose development or disturbance may impact streams, wetlands, or other aquatic environments. Md. Regs. Code tit. 27, §§ 01.09.01.C. (1) and (7).

Environmental Law: Zoning & Land Use
Anne Arundel County Code, art. 28, § 1A-104(a)(1) states: If there are contiguous slopes of 15% or greater, the buffer shall be expanded to the top of the slope and shall include all land within 50 feet of the top of the bank of steep slopes. Within that buffer, the Chesapeake Bay Critical Area Commission bans any new development of all impervious surfaces that are not water-dependent, which includes concrete swimming pools. Md. Regs. Code tit. 27, § 01.09.01.C.(2).

Environmental Law: Zoning & Land Use
"Impervious surface" means hot bituminous asphaltic pavement, cold mix asphaltic pavement, compacted gravel surfacing, and portland cement concrete used for roads, sidewalks, driveways, curb and gutter, patios, porches, swimming pools, tennis courts, parking areas, and principal and accessory structure coverage areas. Anne Arundel County Code art. 28, § 1-101(33D) (1998).

Environmental Law: Zoning & Land Use
"Water-dependent facilities" means those structures or works associated with industrial, maritime, recreational, educational, or fisheries activities that require location at or near the shoreline within the buffer. Md. Regs. Code tit. 27, § 01.03.01.A.

Environmental Law: Zoning & Land Use: Judicial Review
In judicial review of zoning matters, including special exceptions and variances, the correct test to be applied is whether the issue before the administrative body is fairly debatable, that is, whether its determination is based upon evidence from which reasonable persons could come to different conclusions. For its conclusion to be fairly debatable, the administrative agency overseeing the variance decision must have "substantial evidence" on the record supporting its decision.

Environmental Law: Zoning & Land Use
Anne Arundel County Code, art. 3, § 2-107 (1996), states: (b) a variance to the requirements of the County critical area program (program) may be granted after determining that: (1) due to features of a site or other circumstances other than financial considerations, strict implementation of the program would result in an unwarranted hardship to the applicant; (2) an interpretation of Md. Regs. Code tit. 27, § 01(statute), or the program will deprive applicant of rights commonly enjoyed by other properties; (3) granting of a variance will not confer on applicant any special privilege that would be denied by statute or the program; (4) the variance request is not based on conditions or circumstances that are a result of applicant's actions and does not arise from any condition relating to land or building use on any neighboring property; and (5) granting of the variance will not adversely affect water quality, fish, wildlife, or plant habitat within the critical area; and will be in harmony with the intent of the program.

Environmental Law: Zoning & Land Use
Md. Regs. Code tit. 27, § 01.11.01.A.(1) specifies that the variance requirements must provide, at a minimum, that findings are made by the local jurisdiction which demonstrate that special conditions or circumstances exist that are peculiar to the land or structure within the jurisdiction's Critical Area program, which would result in unwarranted hardship.

Environmental Law: Zoning & Land Use
The term "unwarranted hardship" of Anne Arundel County Code art. 3, § 2-107, subsection (b) (1996) is interpreted to be the equivalent of the "unnecessary hardship" standard generally used in zoning variance law.

Environmental Law: Zoning & Land Use
 Zoning ordinances are in derogation of the common law right to so use private property as to realize its highest utility, and while they should be liberally construed to accomplish their plain purpose and intent, they should not be extended by implication to cases not clearly within the scope of the purpose and intent manifest in their language.

Environmental Law: Zoning & Land Use: Constitutional Limits
In a constitutional sense, the only justification for the restrictions on the use of private property is the protection of the public health, safety, or morals.

Environmental Law: Zoning & Land Use
Whether a property owner is being denied a reasonable and significant use initially will be a determination of the zoning agency, which the court presumes possesses the necessary expertise to decide what is reasonable and significant.

Administrative Law: Judicial Review: Standards of Review: General Rules
Judicial review of administrative decisions is narrow because board members generally have expertise in the matter at hand and should be free to exercise their discretion.

Administrative Law: Judicial Review: Standards of Review: General Rules
As long as evidence exists before the agency that would make its factual determination as to reasonableness and significance fairly debatable, its determination ordinarily should be upheld.

Administrative Law: Judicial Review: Standards of Review: General Rules
Generally, it is only when an agency's factual determinations are unsupported by substantial evidence that the courts may vacate an otherwise proper agency decision.

Environmental Law: Zoning & Land Use
The specifically stated requirements that must be considered with respect to the grant or denial of a variance are to be considered in the context of the entire variance ordinance, to the end that, when interpreted as a whole, either they are or are not generally met.

COUNSEL: 12/7/98 ARGUED BY William M. Simmons of Annapolis, MD. 6/7/99 REARGUED BY William M. Simmons of Annapolis, MD, FOR PETITIONERS.
 
12/7/98 ARGUED BY Marianne D. Mason, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General, on brief) of Baltimore, MD, FOR RESPONDENT.
 
6/7/99 - REARGUED BY: Marianne D. Mason, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General of Maryland, on brief) of Baltimore, MD, FOR RESPONDENT.

JUDGES: 12/7/98 ARGUED BEFORE Bell, C.J.; Eldridge, Rodowsky, Chasanow, Raker, Wilner, Cathell, JJ. 6/7/99 REARGUED BEFORE: Bell, C.J.; Eldridge, Rodowsky, Raker, Wilner, Cathell, Karwacki, Robert L. (retired, specially assigned), JJ. Opinion by Cathell, J.

OPINIONBY: CATHELL

 OPINION: [**1075] [*35]

   Opinion by Cathell, J.

   Petitioners Anne and Richard White seek the reinstatement of a decision by the Anne Arundel County Board of Appeals (Board) granting their request for a zoning variance to construct an in-ground concrete swimming pool in the sloped back yard of their home. On judicial review, the Circuit Court for Anne Arundel County reversed the Board, ruling its decision was "arbitrary and capricious." The Court[***2] of Special Appeals affirmed the circuit court. n1 

n1 After the case sub judice originally was argued, this Court granted a writ of certiorari in Belvoir Farms Homeowners Association, Inc. v. North, 352 Md. 617, 724 A.2d 20 (1999) [filed 1999]. Belvoir Farms raised issues involving the legislative history of the critical area variance statutes. Accordingly, we ordered that the case at bar be reargued on the same day as Belvoir Farms.

   Petitioners present three questions for our review:

   1. Did the Decision of the Court of Special Appeals effectively render meaningless and of no practical effect the Critical Area variance provisions required by the Critical Area Act, and as set forth in Article 3, Section 2-107(b) of the Anne Arundel County Code, by concluding that "unwarranted hardship" requires that the property owner be deprived of all reasonable use of their property before a variance can be granted[?]

   2. What is the correct standard to use in[***3] evaluating the requirement of "unwarranted hardship," as that term is used in the Critical Area variance statute[?]

   3. Does the taking of private property rights, which does not result in a denial of all reasonable use of the land, constitute an unconstitutional taking of property when the [*36] taking fails to serve the stated public purpose or the state police power[?]
 
We shall address questions one and two together. In light of our determination with respect to questions one and two, it is not necessary to address the third question.

   We vacate the judgment of the Court of Special Appeals and direct that this case be remanded to the Anne Arundel County Board of Appeals for further proceedings consistent with this opinion and our holding in Belvoir Farms Homeowners Ass'n, Inc. v. North, 352 Md. 617, 724 A.2d 20 (1999) [No. 159, 1998 Term, filed August 2, 1999].

   I. The Chesapeake Bay Critical Area Protection Program

   To understand fully the legal underpinnings of this case, a brief explanation of the Chesapeake Bay Critical Area Protection Program (Critical Area Program) is in order. The Critical Area Program is codified in Maryland Code (1974, 1990[***4] Repl. Vol., 1998 Cum. Supp.), sections 8-1801 to 8-1816 of the Natural Resources Article. Respondent is the Chairman of the Chesapeake Bay Critical Area Commission (Commission), an arm of the Department of Natural Resources with authority to enforce the Critical Area Program. Title 27 of the Code of Maryland Regulations (COMAR) consists of the Commission's regulations.

   It is important to understand the interrelationship between the State-imposed, but locally enforced, critical area prohibitions and local zoning requirements generally. Section 8-1802 of the Natural Resources Article provides:

   (a) Definitions. . . .

   . . . .

   (11)(i) "Project approval" means the approval of development . . . in the Chesapeake Bay Critical Area by the appropriate local approval authority.

   (ii) "Project approval" includes:

   . . . .

   [**1076] 3. Issuance of variances, special exceptions, and conditional use permits . . . . [*37]
 
Section 8-1808(a)(1) requires local governments to have primary responsibility for development of programs to regulate land use in the critical area, "subject to review and approval by the Commission." The program, "at a minimum," must include "zoning ordinances or regulations." §[***5] 8-1808(c). Pursuant to these provisions, the Commission oversees the local governments in the adoption of zoning regulations for the critical area, including variance provisions acceptable to the Commission. n2 Once local critical area programs are adopted and approved, the programs can, depending upon their language, impose additional or different limitations. In the ordinance at issue here, Anne Arundel County has established different criteria for variances in the critical area. n3  See Anne Arundel County Code (1996), Art. 3, § 2-107(b) (hereinafter County Code). 

n2 If a local government opts out of establishing a program, the Commission is empowered to establish a program. § 8-1809(b).

n3 Belvoir Farms Homeowners Assoc. v. North, 355 Md. 259 at 274-76, 734 A.2d 227 at 236-37, 1999 Md. LEXIS 467, *21-22, discussed the history behind the adoption of these criteria in Article 3, section 2-107 (b) of the County Code.

 
   Finally, section 8-1812 confers full standing to the Chairman of the Commission to intervene in any administrative or judicial proceeding arising [***6]out of local project approval in the critical area, subject to withdrawal if thirteen members of the Commission oppose the intervention within thirty-five days. See North v. St. Mary's County, 99 Md. App. 502, 508, 638 A.2d 1175, 1178 (noting that section 8-1812 confers "unrestricted" standing upon the Commission to appeal any administrative or judicial decision impacting the Critical Area Program), cert. denied sub nom.    Enoch v. North, 336 Md. 224, 647 A.2d 444 (1994).

   Also crucial to this case is the "buffer" the Commission requires local jurisdictions to create. See COMAR 27.01.09.01.C.(1). A buffer is defined in COMAR 27.01.09.01.A as "an existing, naturally vegetated area, or an area established in vegetation and managed to protect aquatic, wetlands, shoreline, and terrestrial environments from man-made disturbances." [*38] The buffer must extend at least 100 feet from any tidal waterway, wetland, or tributary of the Chesapeake Bay, but localities must expand the buffer "to include contiguous, sensitive areas, such as steep slopes . . . whose development or disturbance may impact streams, wetlands, or other aquatic environments." COMAR 27.01.09.01.C. [***7] (1) & (7). County Code, Article 28, section 1A-104(a)(1) states: "If there are contiguous slopes of 15% or greater, the buffer shall be expanded . . . to the top of the slope . . . and shall include all land within 50 feet of the top of the bank of steep slopes." Within that buffer, the Commission bans any new development of all "impervious surfaces" that are not "water-dependent," which includes concrete swimming pools. n4 COMAR 27.01.09.01.C.(2). The only way to build any impervious structure like petitioners' swimming pool is to apply and qualify for a variance under local zoning ordinances.

n4 "'Impervious surface' means hot bituminous asphaltic pavement, cold mix asphaltic pavement, compacted gravel surfacing, and portland cement concrete used for roads, sidewalks, driveways, curb and gutter, patios, porches, swimming pools, tennis courts, parking areas, and principal and accessory structure coverage areas." County Code (1998), Art. 28, § 1-101(33D) (emphasis added). "'Water-dependent facilities' means those structures or works associated with industrial, maritime, recreational, educational, or fisheries activities that require location at or near the shoreline within the Buffer . . . ." COMAR 27.01.03.01.A.

[***8]
 
II. Background

   In 1983, petitioners purchased a 1.52 acre lot in Anne Arundel County, Maryland, near Martins Cove, a waterway that ultimately flows into the Chesapeake Bay. Their property is not waterfront property and would not be within the critical area except for a determination by county authorities [**1077]that it is now within the expanded buffer area. They began improvements on the lot in 1987 and began construction of their home in 1990. In its then existing, natural state, petitioners' lot had a gradual slope of less than 15%, therefore keeping it outside the scope of Anne Arundel County's definition of an expanded buffer zone. When petitioners began construction of their [*39] house, dirt from the excavation was pushed into the rear of the lot, creating an artificial slope of greater than 15%. It is this artificially created area that is at issue here. The record is unclear as to whether this artificially created area is contiguous with any natural buffer area. It is also unclear whether the area between the artificial slope and the waterway is itself at a 15% or more grade. Plans for the house apparently were approved by Anne Arundel County officials and, as built, complied[***9] with that approval. There is no indication in the record that any deviation from the approved plans occurred. During the planning and construction of their home, petitioners hoped to build, but never began construction of, the in-ground swimming pool, deck, and patio. Had they built the pool before the house, or at the same time as the house, it would not have been in the buffer zone. In 1995, petitioners began planning these accessory structures. The backyard where the artificial slope had been created was chosen as the location to construct the pool.

   By the time permits were sought for the pool, deck, and patio, the backyard of petitioners' property no longer had a slope of less than 15% leading down toward Martins Cove, because the slope had been increased by the petitioners during the construction of their house. Although in its preexisting natural state, the background area was not a buffer zone, it was deemed to be in the "expanded buffer" zone created by the County under the authority of the Critical Area Program because they had increased the slope. See County Code (1998), Art. 28, § 1A-104(a)(1). As we have indicated, however, the record is unclear as to whether the[***10] area of the slope created by the Whites' excavation abuts on a slope that is itself at a grade of 15% or more and thus an expanded buffer zone. n5 A County ordinance required that petitioners apply for a zoning variance to site the pool behind their house. See County Code (1996), Art. 3, § 2-107. Petitioners applied [*40] for the variance, but an administrative hearing officer denied their request. An appeal to the Board followed. n6 

n5 We resolve this case based on the presumption that the "enhanced buffer zone" created by the Whites abuts on a buffer, or expanded buffer, zone. We do not address whether the ordinance would apply if the subject site did not abut on a buffer zone.

n6 Petitioners also sought permission to build a deck and patio in their variance request. The hearing officer denied the request for the pool, patio, and deck. The Board reversed the hearing officer and granted the application in all respects. Respondent sought only judicial review of the grant of the swimming pool aspect of the variance. The circuit court reversed the Board's grant of the pool variance and the Court of Special Appeals upheld the circuit court.

[***11]

    The Board reversed the decision of the hearing officer in a three-to-two decision. As this decision is the basis for the proceeding before us, we shall review the relevant portions of the record of this hearing. Petitioner Anne White was the first to testify. During her testimony, she revealed that originally there "was a gradual slope, but . . . this 15 percent slope [was] created by the excavation" done during the approved construction of the house. When asked about her need for the pool, she replied, "Well, to enjoy it. Several of my friends have pools on waterfront properties. . . . I have a youngster who is interested in swimming, as -- just as a course of relaxation and enjoyment, and just as part of enjoying my house." She also stated:

   I cannot put [the pool] in my front yard because of the covenants in our community.[ n7 ] And, from aesthetic [**1078] points of view, I don't think I'd want it there.

   To the east side of the house is another slope, which is even greater than the one in the back. And it's wooded on that side, and it's currently a drainage anyway. So I don't think I'd want to put it in the drainage.

   The back side of the house is really the only place that would[***12] accommodate it, and that's where it was intended. 

n7 The record does not contain any evidence, other than this testimony, of the existence of such a covenant.

   Larry Hyland, the owner of the company hired to construct the pool, admitted that an in-ground pool is an impervious surface because "water does not drain through the concrete." Mr. Hyland also recognized that the Commission has defined [*41] swimming pools as impervious. He testified that to construct the pool, his company would "actually cut into the slope and use a steel and reinforced concrete method." Finally, he noted that the pool could feasibly be constructed in the front yard or replace one of the parking structures on the west side of the home.

   Daniel J. Werner, site engineer for the deck and pool projects, testified next. He, too, recognized the impervious nature of concrete swimming pools. He further testified that the whole site is created . . . . It's completely cleared. It's sparse vegetation as far as grass and weeds . . . . And the soils around[***13] the house and in the disturbed area were changed during the construction of the house.

   And the soils in this case are, I would classify them as probably sandy clay. They're very dense, relatively impervious.

   Respondent then called Lisa Hoerger, n8 an environmental specialist with the Commission. She testified during examination by the Board that "'reasonable use' has been interpreted as meaning primary residence. And a pool is an accessory structure or recreational amenity." Ms. Hoerger testified further that granting a variance in this case would confer to petitioners a "special privilege" within the Critical Area, which the variance law did not allow. Patricia Miley, a planner with the County Department of Planning and Code Enforcement, also testified that "[a] swimming pool is a recreational amenity, it's an accessory structure, and they are not permitted in the buffer." n9 

n8 Ms. Hoerger's name incorrectly is spelled "Herger" in the transcript of the Board hearing.

n9 If they were permitted, no variance would be necessary.

[***14]

   Two members of the Board signed the majority opinion which stated, in relevant part:

   The Board finds that unique physical conditions exist on the property. This property is steeply sloped and wooded. The lot is also an irregularly shaped parcel with a pipestem [*42] driveway located significantly within the expanded buffer to the critical area. The septic system consumes the bulk of the front yard which is the only flat area of the parcel. The location of the septic system forced construction of the existing residence towards the rear of the lot into the area of the steep slopes. . . . As a result of these unique physical conditions, there is no reasonable possibility of developing the lot as proposed without a variance to the Code requirements.

   The testimony of one of the Petitioners indicates that the proposed swimming pool is small. The record reflects that several homes in the neighborhood have swimming pools. The proposed swimming pool would not be visible from most properties in the neighborhood due to the pipestem shape of the lot, the dense woods and its location to the rear of the house. . . . As a result, the Board concludes that the granting of a variance will not alter[***15] the essential character of the neighborhood or district in which the lot is located, will not substantially impair the appropriate use or development of adjacent property, and will not be detrimental to the public welfare. . . . Because the pool cannot be moved to the [**1079] front of the property as a result of the septic system, restrictive covenants and tree cover and cannot be moved closer to the house because of the location of the deck access, the Board concludes that the variance granted is the minimum necessary to afford relief.

   The property is located within the critical area, therefore, consideration of environmental impacts is essential. Because of the severe location restrictions . . . and inability to place a pool in the rear yard, the Board concludes that the features of this property would cause a strict implementation of the critical area program to result in an unwarranted hardship. The Board finds that the swimming pool would not negatively impact the critical area because it acts as a catch basin for stormwater. Thus, the run-off on the steep slopes will be lessened and the slopes stabilized by the concrete. The water in the pool can freely evaporate and recharge the hydrology[***16] of the ecosystem, but will not cause [*43] erosion and siltation into the critical area. . . . As a literal interpretation of the relevant COMAR and County Code provisions would prohibit the Petitioners from constructing . . . a pool as their neighbors have, the Board concludes that such an interpretation would deprive the Petitioners of rights commonly enjoyed by other property owners in the area, and within the critical area. For the same reason, the granting of this variance will not confer on the Petitioners any special privilege that otherwise would be denied.

   The lot conditions that cause the unwarranted hardship were not created by the Petitioners.[ n10 ] Therefore, the request for the variance is not based on conditions or circumstances that are the result of actions by the Petitioners. Likewise, the variance request does not arise from any condition relating to land or building use on any neighboring properties.

   . . . The Board concludes that the granting of this variance will not adversely affect water quality and will be in harmony with the general spirit and intent of the critical area program. Finally, testimony indicated that the pool will be constructed on an open lawn[***17] with mowed weeds and grass. Therefore, there is negligible habitat. Thus, the Board concludes that the proposed variance will not adversely affect fish, wildlife or plant habitat. [Emphasis added.]
 
A third member concurred fully with this opinion, but wrote separately. Two other members of the Board dissented. 

n10 This is directly contrary to the undisputed evidence that petitioners increased the grade of part of the backyard from below 15% to 15% or above. This increase, however, was apparently part of an approved building project.

   Respondent sought judicial review in the Circuit Court of Anne Arundel County. That court reversed the Board for making "arbitrary and capricious" findings. The Court of Special Appeals affirmed.  White v. North, 121 Md. App. 196, 708 A.2d 1093 (1998). We shall vacate the decisions of the Court of Special Appeals and circuit court and order that the [*44] case be remanded for reconsideration pursuant to our opinions in this case and Belvoir Farms. Furthermore, [***18] in light of our resolution of this matter, it is unnecessary to address at this time whether the application of the zoning variance ordinance to petitioners' variance application constituted an unconstitutional taking of petitioners' property.
 
III. Standard of Review
 
In judicial review of zoning matters, including special exceptions and variances, "the correct test to be applied is whether the issue before the administrative body is 'fairly debatable,' that is, whether its determination is based upon evidence from which reasonable persons could come to different conclusions." Sembly v. County Bd. of Appeals, 269 Md. 177, 182, 304 A.2d 814, 818 (1973). See also Board of County Comm'rs v. Holbrook, 314 Md. 210, 216-17, 550 A.2d 664, 668 (1988); Prince George's County v. [**1080] Meininger, 264 Md. 148, 151, 285 A.2d 649, 651 (1972); Zengerle v. Board of County Comm'rs, 262 Md. 1, 17, 276 A.2d 646, 654 (1971); Gerachis v. Montgomery County Bd. of Appeals, 261 Md. 153, 156, 274 A.2d 379, 381 (1971). For its conclusion to be fairly debatable, the administrative agency overseeing the variance decision [***19]must have "substantial evidence" on the record supporting its decision. See Mayor of Annapolis v. Annapolis Waterfront Co., 284 Md. 383, 395, 396 A.2d 1080, 1087 (1979); Montgomery County v. Woodward & Lothrop, Inc., 280 Md. 686, 706, 376 A.2d 483, 495 (1977), cert. denied sub nom.  Funger v. Montgomery County, 434 U.S. 1067, 98 S. Ct. 1245, 55 L. Ed. 2d 769 (1978); Agneslane, Inc. v. Lucas, 247 Md. 612, 619, 233 A.2d 757, 761 (1967).
 
IV. Discussion

   The variance ordinance applicable to this case, County Code (1996), Article 3, section 2-107, states in relevant part:

   (b) For a property located in the critical area, a variance to the requirements of the County critical area program may be granted after determining that: [*45]

   (1) due to the features of a site or other circumstances other than financial considerations, strict implementation of the County's critical area program would result in an unwarranted hardship to the applicant;[ n11 ]

   (2) a literal interpretation of the Code of Maryland Regulations, Title 27, Subtitle 01, Criteria for Local Critical Area Program Development, or the County critical area[***20] program and related ordinances will deprive the applicant of rights commonly enjoyed by other properties in similar areas within the critical area of the County;

   (3) the granting of a variance will not confer on an applicant any special privilege that would be denied by COMAR, Title 27, Subtitle 01 or the County critical area program to other lands or structures within the County critical area;

   (4) the variance request:

   (i) is not based on conditions or circumstances that are the result of actions by the applicant; and

   (ii) does not arise from any condition relating to land or building use, either permitted or non-conforming, on any neighboring property; and
 
(5) the granting of the variance:

   (i) will not adversely affect water quality or adversely impact fish, wildlife, or plant habitat within the County's critical area; and
 
(ii) will be in harmony with the general spirit and intent of the County critical area program. [*46]

   (c) A variance may not be granted under subsection (a) or (b) of this section unless the Board finds that:

   (1) the variance is the minimum variance necessary to afford relief;

   (2) the granting of the variance will not:

   (i) alter the essential character[***21] of the neighborhood or district in which the lot is located;

   (ii) substantially impair the appropriate use or development of adjacent property;

   (iii) be contrary to acceptable clearing and replanting practices required for development in the critical area; or
 
(iv) be detrimental to the public welfare. 

n11 COMAR 27.01.11.01.A.(1) specifies that the variance requirements must provide, at a minimum, that "findings are made by the local jurisdiction which demonstrate that special conditions or circumstances exist that are peculiar to the land or structure within the jurisdiction's Critical Area program, [which] would result in unwarranted hardship." (Emphasis added.) The Anne Arundel County ordinance does not utilize the emphasized language of the regulation in subsection (b). The language of subsection (b), however, was approved by the Commission in 1993 when it required the County to eliminate the "practical difficulties" standard from its ordinance's provisions in respect to critical areas.

   [**1081] Petitioners[***22] must satisfy the requirements of subsection (b) and (c) because a critical area is involved. Accordingly, the "practical difficulty" standard is not applicable under Anne Arundel County's critical area variance procedures. Only the more stringent requirement of "unwarranted hardship" applies in the critical area, regardless of whether it is a yard or use variance. n12 

n12 We interpret the term "unwarranted hardship" of subsection (b) to be the equivalent of the "unnecessary hardship" standard generally used in zoning variance law. See Belvoir Farms, 355 Md. at 262, 734 A.2d at 229, 1999 Md. LEXIS 467, *1.

   As is evident, with one exception, subsection (b) establishes an extensive list of requirements to be met. Subsection (c) imposes additional requirements. The exception in subsection (b) is that an applicant for a variance first must establish merely that "due to features of the site or other circumstances," an unwarranted hardship would result if the county's critical area program were strictly implemented. There is, as we view[***23] this ordinance, no requirement that the features of the site be "unique," or even considered, if "other circumstances" exist.

   We noted in Belvoir Farms, 355 Md. at 266, 734 A.2d at 231, 1999 Md. LEXIS 467, *6, that subsection (b) was enacted in response to a Commission directive. We further noted that by the nature of its passage [*47] and its language, section 2-107(b) was intended to create substitute requirements for variances in the critical area.  Id. at 266, 734 A.2d at 231, 1999 Md. LEXIS 467, *6. The legislative history of the St. Mary's County ordinance in North, 99 Md. App. at 512, 638 A.2d at 1180, is not apparent from the Court of Special Appeals' opinion, and may not have been presented to that court. The ordinance in that case and the case sub judice differ in structure and content. The regular variance requirements and the critical area requirements in the St. Mary's County ordinance are in separate sections that appear to have been enacted together. If so, that contrasts with the amendment process in respect to Anne Arundel County's ordinance. Moreover, in the St. Mary's County ordinance, the drafters specifically retained the general "uniqueness" requirement for variances in the critical[***24] area:
 
(1) In granting variances the Board of Appeals must find:
 
(a) That special conditions or circumstances exist that are peculiar to the land or structure involved and that a literal enforcement of the provisions of the Critical Area program would result in unwarranted hardship . . . . [Emphasis added.]
 
Section 38.2 (7)(a) of the St. Mary's County Zoning Ordinance (1998). n13

   The comparable section of the County Code, section 2-107 provides in relevant part:

   (b) . . . [A] variance to the requirements of the County critical area program may be granted after determining that:

   (1) due to the features of a site or other circumstances . . . strict implementation of the County's critical area program would result in an unwarranted hardship . . . . [Emphasis added.] [*48]
 
In Anne Arundel County, the general "uniqueness" requirement for variances in the critical area effectively has been eliminated. Not only has the term, or any of its synonyms, been omitted, but "other circumstances" almost always will exist, as they do in this case. Accordingly, in most instances under this particular ordinance, the "unwarranted hardship" standard may be the only prong of[***25] the variance consideration. The other factors listed in subsections 2-107 (b) and (c) are utilized in making the determination of whether an unwarranted hardship exists. 

 n13 This is the most recent version of the St. Mary's County ordinance we have available. It has changed since North, but the changes appear to be cosmetic, not substantive.

   [**1082] With the clarification of the unwarranted hardship standard made in Belvoir Farms, the issue now is whether petitioners presented substantial evidence in respect to that unwarranted hardship standard, i.e., whether the denial of their request to build a swimming pool is a denial of a reasonable and significant use. See Belvoir Farms, 355 Md. at 279, 734 A.2d at 239, 1999 Md. LEXIS 467, *30-31. We note, as we did in Aspen Hill Venture v. Montgomery County Council, 265 Md. 303, 313-14, 289 A.2d 303, 308 (1972), that we must not forget the underlying principle that, "Such ordinances [zoning ordinances] are in derogation of the common law right to so use private property[***26] as to realize its highest utility, and while they should be liberally construed to accomplish their plain purpose and intent, they should not be extended by implication to cases not clearly within the scope of the purpose and intent manifest in their language." Landay v. Board of Zoning Appeals, 173 Md. 460, 466, 196 A. 293 (1938). [Alteration in original.]

   In Landay, 173 Md. at 465, 196 A. at 295-96, we noted that "in a constitutional sense, the only justification for the restrictions . . . on the use of private property is the protection of the public health, safety, or morals." (Citations omitted.) See also Gino's of Maryland, Inc. v. Mayor of Baltimore, 250 Md. 621, 642, 244 A.2d 218, 230 (1968) ("Zoning ordinances are in derogation of the common law and should be strictly construed"); County Comm'rs v. Zent, 86 Md. App. 745, 751, 587 A.2d 1205, 1208 (1991); Lone v. Montgomery County, 85 Md. App. 477, 494-95, 584 A.2d 142, 150-51 (1991). Cf.  Canada's [*49]Tavern, Inc. v. Town of Glen Echo, 260 Md. 206, 218, 271 A.2d 664, 670 (1970) (Barnes, J., dissenting); Norwood Heights Improvement Ass'n v. Mayor of Baltimore, 191 Md. 155, 163-64, 60 A.2d 192, 196 (1948)[***27] (Henderson, J., dissenting).

   In light of our holding in Belvoir Farms that an unwarranted hardship can result from the denial of a reasonable and significant use, we shall direct that this case be remanded to the Board for reconsideration in light of the standard we explained in Belvoir Farms.

    North, 99 Md. App. 502, 638 A.2d 1175, a Court of Special Appeals opinion involving a similar zoning variance ordinance authorized by the Critical Area Program, was decided prior to the clarification in Belvoir Farms which, as applied by the Court of Special Appeals in that case, was the essential equivalent of an unconstitutional regulatory taking, a standard we rejected in Belvoir Farms. The Court of Special Appeals, in interpreting the St. Mary's County critical area zoning variance ordinance, which resembled the ordinance in this case (except for its more restrictive requirements that the property be unique), focused, in part, on the requirement that the applicant prove an unwarranted hardship had resulted from the loss of all economic use, instead of a denial of a reasonable and significant use.

   Prior to Belvoir Farms, we had not, with the exception[***28] of references to unconstitutional takings, defined the terms unwarranted hardship, unnecessary hardship, and the like, other than the use of the terms themselves. We have made clear in Belvoir Farms that it is a lesser standard than that applicable in unconstitutional taking cases. In a given case, whether a property owner is being denied a reasonable and significant use initially will be a determination of the zoning agency, which we presume possesses the necessary expertise to decide what is reasonable and significant. See, e.g., Annapolis Waterfront Co., 284 Md. at 395, 396 A.2d at 1087 (noting that judicial review of administrative decisions is narrow because [*50] board members generally have expertise in the matter at hand and should be free to exercise their discretion).

   As long as evidence exists before the agency that would make its factual determination as to reasonableness and significance fairly debatable, its determination [**1083] ordinarily should be upheld. See supra Part III. Generally, it is only when an agency's factual determinations are unsupported by substantial evidence that the courts may vacate an otherwise proper agency decision.

   The variance provisions[***29] of the ordinance at issue include, as do most such ordinances, a list of other factors that must be considered with respect to the grant or denial of a variance. They are described as (1) a deprivation of rights commonly enjoyed by others; (2) that no special privilege will be conferred on an applicant; (3) that the need for relief not be caused by an applicant's own acts; (4) the need for a variance does not arise from conditions on adjacent property; (5) a variance will not adversely affect water quality, fish, wildlife, or plant habitat; (6) a variance will be in harmony with the general spirit of the particular zoning regulation; (7) that the variance is the minimal necessary to afford relief; (8) the variance will not alter the essential character of a neighborhood; (9) the variance will not impair an appropriate use of adjacent property; (10) the variance will not counter acceptable clearing and replanting requirements; and (11) the variance will not be detrimental to the public welfare. If total compliance with every specific requirement were necessary, relief would be nearly impossible and serious "taking" questions might arise. It is our view that these specifically stated[***30] requirements are to be considered in the context of the entire variance ordinance, to the end that, when interpreted as a whole, either they are or are not generally met.

   Moreover, the essential determination is whether an unwarranted hardship exists. The specific factors that must be considered cannot be construed individually to overrule a finding of unwarranted hardship any more than they could overrule a finding of an unconstitutional taking of one's [*51] property. The individual provisions that must be considered are part of the entire matrix that defines what information is necessary to reach a finding as to the existence or nonexistence of an unwarranted hardship.

   On remand, the Board shall reconsider the application in light of the standard established in Belvoir Farms. Because of the necessity of a remand for reconsideration in light of Belvoir Farms, we shall not address the Board's prior findings, and the circuit court's review of those findings, except to note two instances in which our guidance may be helpful.

   The Board, in part, found: "As a literal interpretation of the relevant [critical area] provisions would prohibit the Petitioners from constructing [***31]. . . a pool as their neighbors have, the Board concludes that such an interpretation would deprive the Petitioners of rights commonly enjoyed by other property owners in the area, and within the critical area." The lower court disagreed, saying:
 
If the Court adopted the Board's interpretation that rights of an applicant should be compared to those enjoyed by land owners prior to the Program, this provision of the law would be meaningless . . . .

   Rather, the Court finds that the rights of an applicant for a variance must be compared to the rights enjoyed by others under the Program.

   The Court of Special Appeals appears to have assumed that the trial court's position was correct, and then held, as we read its opinion, that the record was silent as to any pool variances granted to nearby properties in the critical area after the imposition of critical area controls. See White, 121 Md. App. at 234, 708 A.2d at 1112.

   We perceive both courts below to be incorrect. Their position is that in order to determine whether a grant of a variance would confer a right commonly enjoyed by others, the Board may consider only uses resulting under the critical area variance procedures[***32] for Anne Arundel County. We disagree. That position would defeat the variance provisions in their entirety. The first variance under [**1084] the critical area [*52] variance procedure could never be granted simply because it was the first. It then would follow that none could be granted. That cannot be the intent of the provision.

   The more plausible interpretation is that such provisions relate to the existing uses, whether permitted as of right under the general ordinance or whether they resulted from other variance grants, or are legal nonconforming uses, or were established in any other proper manner. That was the position of the Board, which we perceive to be correct. We also agree with the Board that "for the same reason, the granting of this variance [would] not confer . . . any special privilege" when viewed in comparison to all similar uses in the neighboring area.

   V. Conclusion

   For the reasons we have stated, we shall vacate the decision of the Court of Special Appeals and direct that the case be remanded to the Board of Appeals of Anne Arundel County for further proceedings consistent with this opinion and Belvoir Farms.
 
JUDGMENT OF THE COURT OF SPECIAL APPEALS [***33]  VACATED; CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO VACATE THE JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AND REMAND THE CASE TO THE CIRCUIT COURT WITH DIRECTIONS TO VACATE THE DECISION OF THE BOARD OF APPEALS OF ANNE ARUNDEL COUNTY AND REMAND THE CASE TO THE BOARD OF APPEALS FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION AND BELVOIR FARMS HOMEOWNER'S ASS'N, INC. V. NORTH, 352 Md. 617, 724 A.2d 20 (1999); COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID BY RESPONDENT. 

Adamson v. Correctional Medical 
Pet. Docket No. 264, September Term, 1999
 
COURT OF APPEALS OF MARYLAND
 
356 Md. 16; 736 A.2d 1064; 1999 Md. LEXIS 509

 September  13, 1999, Decided

NOTICE: 

 [*1]  DECISION WITHOUT PUBLISHED OPINION 

PRIOR HISTORY: (No. C-1999-52426, Circuit Court for  Anne Arundel  County).

OPINION: Petition for Writ of Certiorari granted. 

WILLIAM HERB MACKELL v. STATE OF MARYLAND 
No. 13, September Term, 1999
 
COURT OF APPEALS OF MARYLAND
 
356 Md. 2; 736 A.2d 1056; 1999 Md. LEXIS 504

 September  9, 1999, Filed

   PRIOR HISTORY: [*1]

   Certiorari to the Court of Special Appeals (Circuit Court for  Anne Arundel  County). Eugene M. Lerner, Judge.

COUNSEL: Julia Doyle Bernhardt, Assistant Public Defender (Stephen E. Harris, Public Defender, on brief) of Baltimore, MD., FOR PETITIONER.
 
Diane E. Keller, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General of Maryland, on brief) of Baltimore, MD., FOR RESPONDENT.

JUDGES: Bell, C.J.; Eldridge, Rodowsky, Raker, Wilner, Cathell, Karwacki, Robert L. (retired, specially assigned), JJ.

OPINION: PER CURIAM ORDER

   The petition for writ of certiorari in the above-entitled case having been granted and argued, it is this [9]th day of September, 1999,

   ORDERED, by the Court of Appeals of Maryland, that the writ of certiorari be, and it is hereby, dismissed with costs, the petition having been improvidently granted.

   /s/ ROBERT M. BELL

   Chief Judge 

OSCAR MORA v. STATE OF MARYLAND 
No. 3, Sept. Term, 1999
 
COURT OF APPEALS OF MARYLAND
 
355 Md. 639; 735 A.2d 1122; 1999 Md. LEXIS 493

 August  27, 1999, Filed

   PRIOR HISTORY: [***1] Circuit Court for  Anne Arundel  County. Case No. K-1997-160. (Circuit Court for  Anne Arundel  County). Eugene M. Lerner, Judge.

DISPOSITION: JUDGMENT OF COURT OF SPECIAL APPEALS AFFIRMED, WITH COSTS. 
CASE SUMMARY 

PROCEDURAL POSTURE:  The court granted review based on petitioner's writ of certiorari of the decision of the Court of Special Appeals (Maryland) affirming the judgment of conviction entered in the trial court convicting petitioner of maintaining a common nuisance.

OVERVIEW:  Petitioner's conviction was based in part on information obtained through search warrants issued by the circuit court in connection with charges that had been dismissed, and concerning which the petitioner had obtained, under Md. Ann. Code art. 27, §§ 735 - 741, orders from the district court expunging records pertaining to those charges. Those orders were not included in the record. The appellate court affirmed, holding that the State was not precluded from using as evidence against petitioner information allegedly covered by the expungement orders. Petitioner sought review of that sole issue by writ of certiorari. The court found the petitioner failed to produce a sufficient factual record for appellate review of the issue, that the appellate court should therefore not have decided the issue, and, that as the petitioner did not include any other issues for review, the judgment of the appellate court should be affirmed.

OUTCOME:  The court affirmed, finding the lower court erred in ruling on whether the State's evidence consisted of expunged material, in the absence of a sufficient factual record, but holding the judgment should be affirmed because petitioner did not include in his petition any other issues raised in the appellate court.

CORE TERMS:  expungement, compound, expunged, clerk, pertaining, indictment, cocaine, arrest, search warrant, controlled buy, custodian, discovery, records pertaining, county police, records maintained, investigatory, surveillance, memorandum, expunge, custody, gate, intermediary, work-product, gate-keeper, detention, convicted, executing, arrested, effected, supplied

CORE CONCEPTS -  

Criminal Law & Procedure: Postconviction Proceedings: Expungement of Criminal Records
The law governing the expungement of criminal records is set forth in Md. Ann. Code art. 27, §§ 735-741, and Md. Rules 4-501, 512. Two situations are provided for -- § 736, when a person is arrested or otherwise detained but not formally charged, and § 737, when a person is formally charged but, for any of the reasons enumerated in § 737, is not convicted or, if convicted, is pardoned.

Criminal Law & Procedure: Postconviction Proceedings: Expungement of Criminal Records
Section 736 deals with the first situation and provides, in relevant part, that if a person is arrested, detained, or confined for the violation of any criminal law, other than a motor vehicle or traffic law, and is released without being charged, the person is entitled to have the police records concerning the arrest, detention, or confinement expunged. It sets forth a procedure for requesting the expungement, an investigation by the affected law enforcement agencies, and a court order of expungement. Md. Ann. Code art. 27, § 736.

Criminal Law & Procedure: Postconviction Proceedings: Expungement of Criminal Records
Under Md. Ann. Code art. 27, § 737, if a person is charged with the commission of a crime and the charge is dismissed or nol prossed, the person may file a petition in the court in which the proceeding was commenced or to which the proceeding was transferred or appealed to have all records pertaining to the charge that are maintained by the State or any of its subdivisions expunged. A petition may not be filed within three years after the dismissal or nol pros unless the petitioner executes a general waiver and release of all claims the petitioner may have against any person for tortious conduct arising from the charge. A copy of the petition must be served on the State's Attorney.

Criminal Law & Procedure: Postconviction Proceedings: Expungement of Criminal Records
Under Md. Ann. Code art. 27, § 737, if a petition has been served on the State's Attorney, unless the State's Attorney, within 30 days after service, files an objection, the court must enter an order requiring the expungement of police records and court records pertaining to the charge. Md. Ann. Code art. 27, § 737(i). If an objection is filed, the court must conduct a hearing and determine whether the person is entitled to expungement.

Criminal Law & Procedure: Postconviction Proceedings: Expungement of Criminal Records
"Court records" means all official records maintained by court personnel pertaining to a criminal proceeding, including indices, docket entries, charging documents, pleadings, memoranda, transcriptions of proceedings, electronic recordings, orders, judgments, and decrees. Md. Ann. Code art. 27, § 735(b).

Criminal Law & Procedure: Postconviction Proceedings: Expungement of Criminal Records
"Police records" means all official records maintained by a law enforcement agency or the Criminal Justice Information System Central Repository pertaining to the arrest and detention of or further proceeding against a person on a criminal charge or for a suspected violation of a criminal law. The term does not include, however, investigatory files, police work-product records used solely for police investigation purposes, or records pertaining to certain motor vehicle or traffic offenses. Md. Ann. Code art. 27, § 735(e).

Criminal Law & Procedure: Postconviction Proceedings: Expungement of Criminal Records
"Expungement" means the effective removal of these records from public inspection by obliteration, removal to a separate secure area to which the public and other persons having no legitimate reason for being there are denied access, or, if effective access to a record can be obtained only by reference to other records, by the expungement of the other records, or part thereof providing the access. Md. Ann. Code art. 27, § 735(c).

Criminal Law & Procedure: Postconviction Proceedings: Expungement of Criminal Records
Section 739, which, in relevant part, makes it unlawful for any person having or acquiring access to an expunged record to open or review it or disclose to another person any information from it without an order from the court which ordered the record expunged. Md. Ann. Code art. 27, § 739.

Criminal Law & Procedure: Postconviction Proceedings: Expungement of Criminal Records
Section 739(d) makes a violation of § 739 a misdemeanor and subjects the violator to imprisonment and a fine and, if the violator is a State or local government employee, to dismissal for misconduct in office. Md. Ann. Code art. 27, § 739.

Criminal Law & Procedure: Appeals
It is incumbent upon the appellant claiming error to produce a sufficient factual record for the appellate court to determine whether error was committed. 

COUNSEL: Argued By Michael R. Malloy, Assistant Public Defender (Stephen E. Harris, Public Defender, on brief) all of Baltimore, MD, for Petitioner.
 
Argued By Regina Hollins Lewis, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General of Maryland, on brief) of Baltimore, MD, for Respondent.

JUDGES: Bell, C.J. Eldridge, Rodowsky, Raker, Wilner, Cathell, Karwacki (retired, specially assigned), JJ. Opinion by Wilner, J.

OPINIONBY: WILNER

OPINION: [*640] [**1122]
 
Opinion by Wilner, J.
 
Filed: August 27, 1999

   A jury in the Circuit Court for Anne Arundel County convicted petitioner Mora of maintaining a common nuisance, in violation of Maryland Code, Article 27, § 286(a)(5). The conviction was based on evidence, the sufficiency of which is not challenged, that, between 1988 and 1997, Mora maintained a "compound" at 8200 West Baltimore-Annapolis Road that was (1) resorted to by drug abusers for the purpose of illegally administering controlled dangerous substances, and (2) used for the illegal manufacture, distribution, dispensing, storage, or concealment of such substances. n1 Any place maintained for either purpose constitutes a common nuisance under § 286(a)(5).

n1 Although the property itself was apparently owned by Mora's father-in-law, the evidence sufficed to establish that the compound was effectively under the control of Mora and his wife.

[***2]

   The county police department had been investigating Mora and his compound since 1988 and, on at least six and possibly eight, prior occasions, including in August, 1995 and in September and November, 1996, had obtained and executed search warrants for the compound and, based on evidence obtained in those searches, filed charges in the district court against Mora. For whatever reason, the State then declined to prosecute those charges. Upon the dismissal of the 1995 and 1996 charges, Mora proceeded, under Article 27, §§ 735 - 741, to obtain orders from the district court expunging court and police [**1123] records pertaining to those charges. The single issue presented to us is whether the State was precluded from using information or evidence allegedly covered by those expungement orders in the prosecution of this case. The Court of Special Appeals, in affirming the judgment of the circuit court, addressed that issue and held that the information and evidence was not precluded.  Mora v. State, 123 Md. App. 699, [*641] 720 A.2d 934 (1998). We shall affirm the judgment for other reasons.

   BACKGROUND

   The law governing the expungement of criminal records is set forth in Article 27, [***3] §§ 735-741 and Maryland Rules 4-501 - 4-512. Two situations are provided for -- when a person is arrested or otherwise detained but not formally charged, and when a person is formally charged but, for any of the reasons enumerated in § 737, is not convicted or, if convicted, is pardoned. Section 736 deals with the first situation and provides, in relevant part, that if a person is arrested, detained, or confined for the violation of any criminal law, other than a motor vehicle or traffic law, and is released without being charged, the person is entitled to have the police records concerning the arrest, detention, or confinement expunged. It sets forth a procedure for requesting the expungement, an investigation by the affected law enforcement agencies, and a court order of expungement.

   Section 737 deals with the second situation. In relevant part, it provides that if a person is charged with the commission of a crime and the charge is dismissed or nol prossed, the person may file a petition in the court in which the proceeding was commenced or to which the proceeding was transferred or appealed to have all records pertaining to the charge that are maintained by the State or any of[***4] its subdivisions expunged. A petition may not be filed within three years after the dismissal or nol pros unless the petitioner executes a general waiver and release of all claims the petitioner may have against any person for tortious conduct arising from the charge. A copy of the petition must be served on the State's Attorney. Unless the State's Attorney, within 30 days after service, files an objection, the court must enter an order requiring the expungement "of police records and court records pertaining to the charge." § 737(i). If an objection is filed, the court must conduct a hearing and determine whether the person is entitled to expungement.[*642]

   Section 735 defines the pertinent terms -- court records, police records, and expungement. With exceptions not relevant here, "court records" means "all official records maintained by [court personnel] pertaining to a criminal proceeding," including indices, docket entries, charging documents, pleadings, memoranda, transcriptions of proceedings, electronic recordings, orders, judgments, and decrees. § 735(b). Section 735(e) defines "police records" to mean "all official records maintained by a law enforcement agency [or the Criminal[***5] Justice Information System Central Repository] pertaining to the arrest and detention of or further proceeding against a person on a criminal charge or for a suspected violation of a criminal law." The term does not include, however, "investigatory files, police work-product records used solely for police investigation purposes," or records pertaining to certain motor vehicle or traffic offenses. Finally, for our purposes, § 735(c) defines "expungement" to mean "the effective removal of these records from public inspection" by obliteration, removal to a separate secure area "to which the public and other persons having no legitimate reason for being there are denied access," or, if effective access to a record can be obtained only by reference to other records, by the expungement of the other records, or part thereof providing the access.

   The section most at issue here is § 739, which, in relevant part, makes it unlawful for any person "having or acquiring access to an expunged record to open or review it [**1124] or disclose to another person any information from it without an order from the court which ordered the record expunged . . . ." Ordinarily, a court may not enter such an order[***6] without notice to the person to whom the record pertains and a hearing, but, upon a verified petition by the State's Attorney alleging that the record is needed by a law enforcement agency for purposes of a pending criminal investigation and that the investigation will be jeopardized or that life or property will be endangered without immediate access to the record, the court may enter an ex parte order permitting access. Section 739(d) makes a violation of § 739 a misdemeanor and subjects the violator to imprisonment and a fine and, if the violator is a [*643]State or local government employee, to dismissal for misconduct in office.

   The expungement issue first arose in this case after the State, in response to a discovery request, advised that it would be using at trial evidence seized pursuant to the execution of search warrants in July, 1988, December, 1991, May, 1992, May, 1993, May, 1995, August, 1995, September, 1996, and November, 1996. Copies of those warrants, along with the applications and returns pertaining to them, were supplied to Mora. The State also informed Mora that members of the county police department had conducted surveillance of the compound on 18 dates in 1995, [***7] which were disclosed. Mora thereupon moved to dismiss the indictment on the ground that "these records," which were not described in the motion, "were the subject of appropriate expungement orders arising out of charges being placed against this Defendant during the period of time he has been charged with having committed offenses and as set forth in the indictment in this case." The motion did not describe the expungement orders; nor were they attached to the motion. In a subsequent memorandum filed in support of the motion, Mora seemed to assume that all evidence from 1988 onward pertaining to him and to the compound had been expunged and that "since the material divulged in discovery by the State was used in the expunged cases there should be no evidence to be presented during the period charged in the Indictment."

   At a hearing on the motion, Mora claimed that the warrants, affidavits, returns, and other documents supplied to him in discovery were covered by the three expungement orders, at least one of which he gave to the court, but none of which are in the record before us. His initial point was that, by supplying the expunged documents to him in discovery, the State violated[***8] the expungement orders and, for that reason, the indictment should be dismissed. The State responded that none of the documents supplied were court records and that, to the extent they were police records, they constituted investigatory and police work-product records and were therefore not included within the expungement orders. The State also [*644] urged that, if the disclosure of those documents to the defendant in discovery amounted to a violation of an expungement order, the violation was insignificant and was hardly a basis for dismissing the indictment. The court denied the motion, as argued, on three grounds: (1) the documents in question were investigatory records not subject to expungement; (2) the expungement orders were from the district court and any effort to enforce them had to be in that court; and (3) turning records over to the defendant in discovery did not constitute a violation of the orders.

   Mora then asserted the argument made in his written motion, that the only evidence that the State had consisted of the expunged material and, for that reason, the indictment should be dismissed. The State again urged that the documents in question were not expunged. The court[***9] confirmed its ruling denying the motion. It concluded that, to the extent that the warrant documents were in the possession of the court and were therefore court records, they were under seal, and the court ordered that they remain so pending trial. [**1125]They could be produced at trial, under seal, subject to further order of the court at that time. The court added that, to the extent that the police had copies of those documents, they constituted investigative records.

   The motion to dismiss was followed by a motion in limine to exclude from evidence any records that were expunged by order of the district court. That motion, argued on the morning of trial, was denied. The court ruled that the State could not use the Statements of Charges that were apparently included within the expungement orders but could use the warrant documents. In fact, although some of the police witnesses referred to some of the warrant documents in their testimony, none of the warrants, applications, returns, or Statements of Charges pertaining to any of the prior cases were admitted into evidence. The documents pertaining to the 1993, 1995, and 1996 warrants were marked for identification but were not admitted. [*645] [***10]

   The case against Mora consisted principally of the testimony of persons who actually sold cocaine for Mora at the compound and of police officers who had been involved in investigating the activities at the compound. Antionette Romano said that she sold cocaine for Mora at the gate of the compound for about a year. She sometimes stayed in the compound and had seen Mora cooking crack cocaine and bagging it. Angela Dorsey, Romano's sister, purchased cocaine at the gate of the compound during 1995 and 1996. James Wiley gave similar testimony. He worked at the gate selling cocaine and had seen Mora cooking the substance. All three witnesses described the operation -- that customers would pull up to the gate, give the gate-keeper $20 and receive cocaine in return. The gate-keeper obtained his or her supply from Mora inside the compound. Mora compensated the gate-keepers by giving them pieces of cocaine, some of which they used, some of which they sold.

   The first officer to testify was Sergeant McAndrew. Referring to the application for the 1993 search warrant, which had been issued by the district court but had not been the direct subject of any expungement order, he stated that, [***11] in April, 1993, he effected a controlled buy of cocaine from the compound through the use of an unwitting intermediary and, based at least in part on that, he obtained a search warrant for the compound. Before executing the warrant on May 16, he effected two more controlled buys, one of which occurred just before he entered the property under the warrant. In executing the warrant, he found on Mora $1,440, the serial numbers of which matched the numbers of the bills he had earlier given to the intermediary. Despite the presence of a K-9 dog, the police were unable to locate any drugs on the property, although McAndrew said that there were a number of other animals on the property and that a drug detection dog will often not conduct a thorough search because of the presence of other animals.

   Sergeant McCullen testified that, in April, 1994, he intercepted two persons at the Amtrack station in Linthicum and, in a consensual search of their bags, discovered $9,860 in cash [*646] in a brown paper bag and a card containing Mora's name and address. Detective McLaughlin recounted a controlled buy he made in February, 1995, leading to a surveillance of the compound that commenced in March and extended[***12] through July. The surveillance was in the evening, usually for about two hours, and Detective McLaughlin noted that anywhere from 10 to 28 vehicles would enter and leave the driveway during that time, most of them staying only a brief period of time and some of them returning more than once. Those observations led him to believe that there was drug trafficking occurring, and he obtained a search warrant from a judge of the circuit court, which was executed in August, 1995. Reading from the return, which itself was not admitted into evidence, Detective McLaughlin [**1126] described the items recovered from the kitchen, which led him to conclude that Mora had been cooking cocaine.

   Detectives Gunn and Russell described a controlled buy they effected in September, 1996, which led to the issuance and execution of the September 26 search warrant, also obtained from a judge of the circuit court. Detective Russell stated that, in executing the warrant, he arrested three people, including Angela Dorsey and James Wiley, and found narcotics paraphernalia. He also testified about further surveillance and another controlled buy in November, 1996, leading to the November 16 warrant, obtained from a judge [***13]of the circuit court. Referring to the return on that warrant, which was not itself admitted into evidence, Detective Russell described the items seized, which were indicative of a cocaine manufacturing and distribution operation. Officer Mangold, who participated in both the controlled buy and the search, testified that she recovered from Mora's pocket $40 that she had earlier that day given to the intermediary to purchase cocaine.

   DISCUSSION

   The complaint before us raises a host of issues but arises from a record that is wholly inadequate for us to determine whether those issues are really presented. Mora [*647] asserts in his brief that (1) the expungement orders issued by the district court in 1995 and 1996 "covered the search and seizure affidavits, warrants, returns and all evidence gathered during the searches," and "thus, a prosecution based on such evidence had to be dismissed," and (2) the court "erred by refusing to exclude from evidence at Petitioner's trial all the evidence and records that had arisen from or been part of the three District Court cases in which the expungement orders had been granted." The most significant problem with those assertions is that the expungement[***14] orders on which they are based are not in the record.

   Although the State has conceded that expungement orders were entered by the district court with respect to the 1995 and 1996 prosecutions, there is no evidence in this record of what or who was included within them. We note that the version of Maryland Rules 4-508 and 4-508.2 that were in effect in 1995 and 1996 provided a form of expungement order that would have directed "the following named custodians of police records and the Central Repository" to expunge "the record pertaining to petitioner's arrest, detention, or confinement and comply with the provisions of Section 736(c) of Article 27," and have further directed that "the following-named custodians of court records in this action or proceeding shall expunge all court records in their custody." Without the actual orders, of course, or some other reliable evidence of their content, there is no way to tell which custodians were named. Although we may properly assume that an expungement order entered by the district court in conformance with Rules 4-508 and 4-508.2 would direct the expungement of records in the custody of the county police department and the clerk of the district[***15] court, in which the Statement of Charges was filed, it is not at all clear that the order would have directed the expungement of records in the custody of the clerk of the circuit court, in which no criminal proceedings had been brought. This is important -- indeed critical -- because the 1995 and 1996 warrants in question were issued by, returned to, and ultimately subpoenaed from the circuit court. If the expungement orders did not name the clerk of the circuit court and were not served on [*648] that clerk, those records would not have been legally and effectively expunged and would not, therefore, have been inadmissible on the ground of expungement. Section 737(l) requires every custodian of police or court records subject to an expungement order to advise the court and the person in writing of compliance with that order. There is nothing in this record to indicate that either the clerk of the circuit court (or, indeed, the custodian [**1127] of the county police records) ever notified the district court or Mora of compliance.

   The issues raised by Mora arise only if we assume that the expungement orders issued by the district court specifically named and were served upon the clerk of the Circuit[***16] Court for Anne Arundel County. Only with that assumption and the further assumption that the expungement orders sufficed substantively to cover the application, search warrant, and return would the questions arise whether (1) the statute permits the district court to order the expungement of records maintained by a circuit court, n2 (2) such an order by the district court could [*649] preclude the production of those records in circuit court pursuant to a circuit court subpoena, (3) expungement of the records would preclude witnesses having independent knowledge of the information contained in those records from testifying based on that independent knowledge, (4) the fact that warrant documents constitute "court records" when in the custody of the clerk necessarily makes copies of those records in the possession of a police agency "police records," rather than parts of investigatory files or police work-product, (5) an expungement order issued with respect to a particular arrest or prosecution effectively expunges records relating principally to another, earlier arrest or prosecution on the premise that those records, or information from those records, were used as a basis for the instant [***17] arrest or prosecution, and (6) the prohibition in § 739 against reviewing and disclosing expunged records carries with it the tacit sanction of making that information inadmissible in court.

n2 This issue was raised by the judge handling the pre-trial motions, but it has not been addressed by either Mora or the State, and the answer is not entirely clear. The 1975 law that enacted the expungement statute was preceded by an expungement bill passed in 1974 (1974 H.B. 122) that was vetoed by the Governor because of problems perceived with its implementation. See 1974 Md. Laws at 3090. The 1974 bill provided, in proposed § 729(a), that, in any case in which a person was charged with a criminal or juvenile offense and the court granted a judgment of acquittal or the case was dismissed or the person found not guilty, "the court shall order the clerk of the court" (emphasis added) to expunge all pertinent records. Under that formulation, the expungement order would likely have applied only to the clerk of the court that entered the order. In conformance with the commitment made by the Governor in his veto message on H.B. 122, the Governor sent to the Legislature a revised expungement bill in 1975 that was introduced as an Administration Bill and that was accompanied by a memorandum explaining how that bill resolved some of the problems noted with the 1974 bill. One of the issues addressed in the memorandum from the Governor's Office was the problem of records existing in more than one court, at least when a case had been transferred from one court to another or appealed to a higher court. The recommendation was made, and accepted by the Legislature through § 737(c), that the petition for expungement should be filed in the highest court having records, which could, if it chose, remand the matter to the court of original jurisdiction. The memorandum noted the alternative of filing the petition in the lower court and allowing the order of that court "to bind the appellate court as to its records," but pointed out that, though perhaps an expedient approach, "the authority of a lower court to bind a higher one especially as to its own records, is not a desirable goal." In light of this history, it is indeed questionable whether the Legislature intended to permit an order of the district court to affect records maintained by the circuit court. Certainly, it is an issue that is laced with Constitutional considerations and should not be resolved without full briefing and argument, which has not occurred in this case.

[***18]

   These are important issues, some of which have not been specifically addressed by the parties, but they should not be decided in a vacuum, in the context of an advisory opinion, or upon sheer speculation as to whether they are even presented in the case. Counsel apparently had a copy of at least one of the orders, for he gave it to the judge at the pre-trial motion hearing, but it never got into the record, and we have no idea of its contents. Nor did Mora produce any evidence showing that the expungement order was ever served on the clerk of the circuit court. It is not at all clear from this record whether, [**1128]or to what extent, any of the police officers who testified recounted information obtained solely from expunged records. The only suspect records produced or referred to in [*650] court came from the warrant documents maintained by the clerk of the circuit court. It is incumbent upon the appellant claiming error to produce a sufficient factual record for the appellate court to determine whether error was committed, and he has not done that in this case. The Court of Special Appeals never should have addressed the expungement issue, and we shall regard its pronouncements on that issue [***19]as mere dicta, having no precedential value. Because there were other issues raised by Mora in the Court of Special Appeals that were not included in his petition for certiorari and are therefore not before us, we shall affirm the judgment of that court without expressing any further opinion on its handling of the expungement issue.

   JUDGMENT OF COURT OF SPECIAL APPEALS AFFIRMED, WITH COSTS. 

FREDERICK ANDREW BAILEY v. STATE OF MARYLAND 
No. 92, September Term, 1998
 
COURT OF APPEALS OF MARYLAND
 
355 Md. 287; 734 A.2d 684; 1999 Md. LEXIS 468

 August  4, 1999, Filed

   PRIOR HISTORY: [***1] Certiorari to the Court of Special Appeals (Circuit Court for  Anne Arundel  County). Case No. K-96-1300. Robert H. Heller, JUDGE.

DISPOSITION: JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED; CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO REMAND THE CASE TO THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID BY ANNE ARUNDEL COUNTY. 
CASE SUMMARY 

PROCEDURAL POSTURE:  Criminal defendant sought review of his convictions for battery, reckless endangerment, theft over $300, and fleeing police, arguing that the trial court illegally sentenced him by ordering to serve a term of home detention as a condition of his probation after he was released from state incarceration.

OVERVIEW:  Defendant challenged the sentence imposed by the trial court after he was convicted for battery, reckless endangerment, theft over $300, and eluding police, on the basis that the trial court illegally included a 24-month term of home detention, to be served after defendant's release from incarceration, as a condition of defendant's probation. Defendant argued he was thus prevented from potentially reducing his sentence by earning "good time" during incarceration. On appeal, the court held that probation was strictly governed by state statute. Because there was no state statutory authority for ordering home detention as a condition of probation in Anne Arundel County, Maryland, unlike other counties in Maryland, the trial court erred in so doing. The court adopted this bright-line rather than case-by-case approach in order to conserve judicial resources, promote fairness in sentencing, and avoid judicial legislation. The court reversed and remanded for resentencing.

OUTCOME:  The court reversed the trial court's sentence and remanded, because ordering defendant to serve 24 months of home detention as a condition of probation after defendant was released from state incarceration violated Maryland law, which did not explicitly permit such sentencing in Anne Arundel County, although it did permit the practice in other Maryland counties.
 
CORE TERMS:  detention, condition of probation, probation, incarceration, sentence, confinement, house arrest, conditions of probation, monitoring, statutory authority, probationer, offender, sentence of confinement, imprisonment, intensive, inmate, term of confinement, sentencing, prison, authority to impose, supervision, detention center, express statutory authority, period of incarceration, deems proper, sentenced, jail-type, reasonable period, penal institution, et seq

CORE CONCEPTS -  

Criminal Law & Procedure: Sentencing: Probation
Md. Ann. Code art. 41, § 4-501 (6) (1957, 1997 Repl. Vol., 1998 Supp.) defines probation as the conditional exemption from imprisonment allowed any prisoner by suspension of sentence in the circuit court for any county of the state.

Criminal Law & Procedure: Sentencing: Probation
Probation is a creature of statute, and as such, the terms of probation are derived from statutory authority.

Criminal Law & Procedure: Sentencing: Probation
In Maryland, a court having proper jurisdiction may grant probation. Md. Ann. Code art. 27, § 641(a) and § 641A(a) (1957, 1997 Repl. Vol., 1998 Supp.). Probation in Maryland is available as a sentencing alternative in four different settings. Under Md. Ann. Code art.27, § 641(a), after a verdict of guilty and with defendant's written consent, the court may stay the entering of judgment, defer further proceedings and place defendant on probation. Md. Ann. Code art. 27, § 641A(a), authorizes a court to suspend the imposition of sentence and to place defendant on probation, impose a sentence but suspend the execution of the sentence in favor of probation, or impose a sentence and suspend execution of a part of the sentence in favor of probation.

Criminal Law & Procedure: Sentencing: Probation
A trial court has broad authority to formulate conditions of probation. The power to impose conditions of probation, however, is not unlimited, and thus, the trial court does not have unlimited discretion to order conditions of probation.

Criminal Law & Procedure: Sentencing: Probation
In Maryland, absent statutory authority, a trial court may not impose imprisonment as a condition of probation.

Criminal Law & Procedure: Sentencing: Probation
Home detention has been defined as a program of confinement and supervision that restricts defendant to his place of residence continuously, except for authorized absences, enforced by appropriate means of surveillance by the probation office. U.S. Sentencing Guidelines Manual § 5F1.2 commentary (1998). In view of its diverse purposes, house arrest is most accurately described as a sanction occupying a level of punishment between reformative ordinary probation and retributive incarceration.

Criminal Law & Procedure: Sentencing: Probation
The Maryland General Assembly has explicitly authorized the courts to impose a sentence of confinement as a condition of probation in some but not all subdivisions. Md. Ann. Code art. 27, §639(a)(2); art. 27, § 641(a)(1)(i)(2); art. 27, § 641(A)(a)(2). Md. Ann. Code art. 27, § 641(a)(2), authorizes courts in Charles County, St. Mary's County, Cecil County, Harford County and Calvert County to impose as a condition of probation a sentence of confinement.

Criminal Law & Procedure: Sentencing: Suspension of Sentence
See Md. Ann. Code art. 27, § 639(a)(2).

Criminal Law & Procedure: Sentencing: Probation
See Md. Ann. Code art. 27, § 641(a)(1)(i)(2).

Criminal Law & Procedure: Sentencing: Probation
The limits which should be placed upon the home detention program are matters properly for the state legislature to consider and not for the state courts to attempt to read into the present statutes.

COUNSEL: ARGUED BY Julia Doyle Bernhardt, Assistant Public Defender (Stephen E. Harris, Public Defender, on brief) of Baltimore, MD, FOR PETITIONER.
 
ARGUED BY Diane E. Keller, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General, on brief) all of Baltimore, MD, FOR RESPONDENT.

JUDGES: ARGUED BEFORE Bell, C.J.; Eldridge, Rodowsky, Chasanow, Raker, Wilner, and Cathell, JJ. Opinion by Raker, J. Rodowsky, Chasanow, and Cathell, JJ., dissent.

OPINIONBY: RAKER

OPINION:  
[*289] [**685] Opinion by Raker, J.

   Rodowsky, Chasanow, and Cathell, JJ., dissent.
 
Filed: August 4, 1999

   In this case we must decide whether home detention, in the absence of express statutory authority permitting such action, can be imposed validly as a condition of probation. We shall hold that in the absence of statutory authority, a trial court lacks power to order home detention as a condition of probation.

   Frederick Andrew Bailey was convicted by a jury in the Circuit Court for Anne Arundel County of the offenses of battery, reckless endangerment, theft over $300, and fleeing or eluding police. On the reckless endangerment count, the trial court sentenced Bailey[***2] to five years imprisonment, suspending all but eighteen months. On the battery count, the court sentenced Bailey to a concurrent three-year sentence, with all but eighteen months suspended. On the theft count, the court imposed a concurrent three-year sentence, all suspended. Finally, on the fleeing or eluding police count, the court imposed a concurrent six month term of incarceration, all suspended. The court placed Bailey on supervised probation for five years, to commence when he was released from the Anne Arundel County Detention Center. As a special condition of probation, effective upon Bailey's release from the detention center, the court ordered home detention for a period of twenty-four months. At the time of sentencing the court stated:

   [*290] In this case I have concluded that it would not serve society, nor would it be of any rehabilitative benefit at this juncture for me to put Mr. Bailey in a prison system with the Commissioner of Correction. But I do believe that it is appropriate and necessary for the sentencing process to incarcerate Mr. Bailey.

    * * * * *

   You will serve home detention for a period of twenty- four months when you are released from the Anne Arundel County[***3] Detention Center, commencing upon release from the Detention Center, and you will be subject to all rules and restrictions of the House Arrest Program. You'll be permitted to work. You'll be permitted to do any counseling. You'll be permitted to do any public work that I might order. There is to be no use of any alcoholic beverages or any kinds of drugs. There are certain requirements and rules that you'll be required to follow in order to be on the House Arrest Program. This is a condition of probation. If you violate the House Arrest Program, they will then tell me and you will be back for a violation of probation hearing.

   Bailey appealed to the Court of Special Appeals, arguing that the trial court imposed an illegal sentence in imposing house arrest as a condition of his probation. The Court of Special Appeals affirmed. We granted certiorari to consider the issue.

   Petitioner argues that confinement on home detention constitutes imprisonment and as such, is an illegal condition of probation. The issue is resolved, he suggests, upon a determination of whether home detention as a condition of probation constitutes a "sentence of confinement" for purposes of Maryland Code (1957, [***4] 1996 Repl. Vol., 1997 Supp.), Article 27 § 641A(a). n1 Section 641A(a) permits only [**686] five subdivisions, not including Anne Arundel County, to impose as a condition [*291] of probation a sentence of confinement. According to Petitioner, because Anne Arundel County is not among those counties authorized to impose "a sentence of confinement" as a condition of probation, and because home detention is a "sentence of confinement," the home detention requirement was an impermissible condition of probation. The detriment to Petitioner if we were to uphold the Court of Special Appeals, he argues, would be to deprive him of good conduct credit "mandated by Dedo [v. State, 343 Md. 2, 680 A.2d 464 (1996)]" by imposing home detention as a condition of probation, "and thus exceed the statutory maximum punishment for an offense by up to five years." According to Petitioner, the appropriate method to impose home detention is as part of the sentence itself, and not as a condition of probation, thereby ensuring that the inmate would receive all the credit to which he was entitled under § 638C(a) and would not serve a sentence in excess of the statutory maximum.

n1 Unless otherwise indicated, all statutory references shall be to Maryland Code (1957, 1996 Repl. Vol., 1997 Supp.), Article 27.

[***5]

   The State argues that Petitioner's home detention was not tantamount to incarceration or custody. According to the State, § 641A(a), which provides that a court may "place the defendant on probation upon such terms and conditions as the court deems proper," affords the trial court "wide discretion to fashion probationary terms that will best meet the needs of the individual probationer and of society as a whole."

   Relying on Schlossman v. State, 105 Md. App. 277, 659 A.2d 371 (1995), cert. dismissed as improvidently granted, 342 Md. 403, 676 A.2d 513 (1996) and Balderston v. State, 93 Md. App. 364, 612 A.2d 335 (1992), the Court of Special Appeals held that "sentencing appellant to house arrest as a condition of his probation does not constitute confinement in a jail-type institution as prohibited in Stone, and thus does not constitute an illegal sentence." In Schlossman, the court concluded that although confinement in one's home is restrictive, a person's confinement differs from that in a prison or jail in many material respects. Id. at 302, 659 A.2d at 383. The court stated:

   While at home, an offender enjoys unrestricted[***6] freedom of activity, movement, and association. He can eat, sleep, [*292] make phone calls, watch television, and entertain guests at his leisure. Furthermore, an offender confined to his home does not suffer the same surveillance and lack of privacy that he would if he were actually incarcerated.

   We conclude that the restrictions placed on appellant's freedom pursuant to the house arrest program are comparable to, and no more onerous than, the restrictions imposed on the appellant in Balderston.  Because we determined in Balderston that such restrictions did not amount to "custody" for the purpose of granting custody credit under Art. 27, § 638C(a), we conclude that the restrictions placed on appellant in the present case do not amount to 'incarceration' or 'confinement in a jail-type institution' as contemplated in Stone v. State.

    Id., 659 A.2d at 383.

   Probation has been described as the "withdrawal of autonomy varying with the terms of the probation order; the primary purpose training for conformity." N. MORRIS & M. TONRY, BETWEEN PRISON AND PROBATION, INTERMEDIATE PUNISHMENTS IN A RATIONAL SENTENCING SYSTEM 178 (1990) [hereinafter BETWEEN PRISON AND[***7] PROBATION]. Maryland Code (1957, 1997 Repl. Vol., 1998 Supp.), Article 41, § 4-501 (6), defines probation as "the conditional exemption from imprisonment allowed any prisoner by suspension of sentence in the circuit court for any county of this State." n2 Intensive supervised probation, [**687] implemented in a majority of the states, combines traditional probation with much greater surveillance. See Developments in the Law     Alternatives to Incarceration, 111 HARV. L. REV. 1863, 1896 (1998). Morris and Tonry define intensive supervision probation as a more intensive withdrawal of autonomy, with the same back-up purposes as traditional probation but with more imminent threats. BETWEEN PRISON AND PROBATION, supra, at 178; see also, INTERMEDIATE SANCTIONS IN OVERCROWDED [*293] TIMES 89-103 (M. Tonry & K. Hamilton, eds., 1995) [hereinafter INTERMEDIATE SANCTIONS]. While intensive probation programs around the country are so diverse that the term "has almost ceased to have useful meaning," a common feature is that more control involving restrictions on liberty of movement, coercion into programs, and employment obligations are exercised over the offender than in[***8] traditional probation. BETWEEN PRISON AND PROBATION, supra, at 180. Intensive supervised probation generally takes three broad forms: a mechanism for early release from prison n3; an alternative to incarceration n4; and a way to provide close controls and surveillance for probationers. n5 The impetus for most of these programs was to give judges authority to impose alternative punishments in order to avoid prison and local jail overcrowding. Id.

n2 In the American Bar Association Criminal Justice Standards, former Standard 18- 2.3(a) (2d ed. 1979), probation was defined as "a sentence not involving confinement which imposes conditions and retains authority in the sentencing court to modify the conditions of the sentence or to resentence the offender if its conditions are violated."

n3  See N. MORRIS & M. TONRY, BETWEEN PRISON AND PROBATION, INTERMEDIATE PUNISHMENTS IN A RATIONAL SENTENCING SYSTEM 182-83 (1990) [hereinafter BETWEEN PRISON AND PROBATION]; see, e.g., N.J. STAT. ANN. § 2C:43-1 et seq. "Authorized Disposition of Offenders" (West 1998).

n4 See BETWEEN PRISON AND PROBATION, supra note 3, at 181-182; see, e.g., GA CODE ANN. § 42-8-20 et seq. "State-wide Probation Act" (1997 & 1999 Supp.); 730 ILL. COMP. STAT. 120 § 1 et seq. "Probation Challenge Program Act" (West 1997 & 1999 Supp.).

[***9] 

n5 See BETWEEN PRISON AND PROBATION, supra note 3, at 183.

   Probation is a creature of statute, and as such, the terms of probation are derived from statutory authority. n6 In Maryland, a court having proper jurisdiction may grant probation. See Art. 27 § 641(a) and § 641A(a). Writing for the Court of Special Appeals, then Chief Judge Wilner, now a member of this Court, explained in Thomas v. State, 85 Md. App. 201, 205, 582 A.2d 586, 588 (1990), that probation in Maryland is available as a sentencing alternative in four [*294] different settings. Under Article 27, § 641(a), after a verdict of guilty and with the defendant's written consent, the court may stay the entering of judgment, defer further proceedings and place the defendant on probation. Id., 582 A.2d at 588. Article 27 § 641A(a) authorizes a court to suspend the imposition of sentence and to place a defendant on probation, impose a sentence but suspend the execution of the sentence in favor of probation, or impose a sentence and suspend execution of a part of the sentence in favor of probation. [***10] Id., 582 A.2d at 588.

n6 Probation in this country seems to have been invented by John Augustus, a Boston shoe cobbler, who went to the Boston Police Court and persuaded the court to release a drunkard into his custody. A. KLEIN, ALTERNATIVE SENTENCING 61 (1989). The first probation statute in this country was enacted in Massachusetts in 1878. Id. at 62. Maryland followed in 1894. Id.; see 1894 Maryland Laws ch. 402, at 583.

   A trial court has broad authority to formulate conditions of probation. The power to impose conditions of probation, however, is not unlimited, and thus, the trial court does not have unlimited discretion to order conditions of probation. See Sheppard v. State, 344 Md. 143, 685 A.2d 1176 (1996) (holding that the trial judge abused his discretion in requiring, as a condition of probation, that the defendant not operate a motor vehicle even if the MVA restored the defendant's license); Walczak v. State, 302 Md. 422, 488 A.2d [**688]949 (1985)[***11] (holding that the trial court exceeded its statutory authorization in ordering that the defendant, as a condition of probation, pay restitution to the victim of a crime for which he was not convicted); Towers v. State, 92 Md. App. 183, 607 A.2d 105 (1992) (holding invalid a condition of probation that the defendant not work in a pharmacy without the court's permission even if his pharmacy license were restored); Brown v. State, 80 Md. App. 187, 560 A.2d 605 (1989) (holding that the trial court abused its discretion in ordering, as a condition of probation, that the defendant pass a polygraph test and repeat her story in court). It is well settled in this State that absent statutory authority, a trial court may not impose imprisonment as a condition of probation. See, e.g., Flaherty v. State, 322 Md. 356, 364, 587 A.2d 522, 525 (1991) (holding that the trial court could not have lawfully imposed a sentence of confinement as a condition of probation, and trial court's attempt to circumvent the law by denominating the condition of imprisonment as a "precondition" was ineffective and invalid); Maus v. State, 311 Md. 85, 104, 532 A.2d 1066, 1076 (1987)[***12] [*295] (stating that a court cannot impose imprisonment as a condition of probation); Matthews v. State, 304 Md. 281, 284, 498 A.2d 655, 656 (1985) (holding that sentencing court cannot order probation to begin while defendant is actually serving sentence for same offense); Thomas v. State, 85 Md. App. 201, 207, 582 A.2d 586, 589 (1990) (holding that the trial court cannot condition probation before judgment disposition upon the service of a term of incarceration, "even though that incarceration technically was in the nature of pre-trial detention"); Stone v. State, 43 Md. App. 329, 335, 405 A.2d 345, 348 (1979) (holding that in the absence of express statutory authority, confinement in a jail-type institution is not an authorized condition of probation).

   Today there exists a range of criminal sanctions between traditional probation, on the one end, and confinement in an institution which we think of as jail-like setting, detention center or prison, on the other end. Beginning in the 1960's and continuing up to the present time, broad patterns of sentencing reforms have emerged throughout the United States. See BETWEEN PRISON AND PROBATION, [***13] supra, at 42-56. In response to prison overcrowding, most states have utilized in some form what have become known as intermediate sanctions. n7 Id.  One of these intermediate sanctions is home detention, which refers to "the confinement of an inmate to his or her home." 75 Md. Op. Att'y. Gen. 373, 374 (1990). Home detention has been defined as "a program of confinement and supervision that restricts the defendant to his place of residence continuously, except for authorized absences, enforced by appropriate means of surveillance by the probation office." U.S. SENTENCING GUIDELINES MANUAL § 5F1.2 commentary (1998); see also J. Hurwitz, Comment, House Arrest: A Critical Analysis of an Intermediate-Level Penal Sanction, 135 U. PA. L. REV. 771, 772 (1987). It has been said of house [*296] arrest that "in view of its diverse purposes, house arrest is most accurately described as a sanction occupying a level of punishment between reformative 'ordinary' probation and retributive incarceration." Hurwitz, supra, 135 U. Pa. L. Rev. 771, at 779. Many states and the federal government have enacted legislation permitting home detention as a condition of probation. n8

n7 Intermediate sanctions include electronic monitoring of probationers, day fine projects, boot camps (short term prisons bearing strict discipline and physical labor requirements), community service programs, day reporting, and house arrest. See INTERMEDIATE SANCTIONS IN OVERCROWDED TIMES Introduction (M. Tonry & K. Hamilton, eds., 1995).

[***14] 

n8 See, e.g., 18 U.S.C. § 3563(b)(1994 & Supp. III 1998); ARIZ. REV. STAT. ANN. § 13- 914 (West 1989 & 1998 Supp.); CAL. PENAL CODE § 1203.016 (West 1999 Supp.); COLO. REV. STAT. ANN. § 16-11-204(2)(a)(XIII) (West 1998); FLA. STAT. ANN. § 948.01; 948.001; 948.03(2)(b) (Harrison 1998 & 1998 Supp.); HAW. REV. STAT. § 37-706-624(2)(p) (1999); 730 ILL. COMP. STAT. ANN. 5/5-6-3(b)(10) (West 1997 & 1999 Supp.); IND. CODE ANN. § 35-38-2-2.3 (15) (Michie 1998 & 1998 Supp.); KAN. STAT. ANN. § 21-4610(c)(12) and 21- 4603(b) (1995 & 1998 Supp.); KY. REV. STAT. ANN. § 533.030(6) (Banks-Baldwin 1998); MINN. STAT. ANN. § 609.135 (West 1987 & 1999 Supp.); MONT. CODE ANN. § 46-18-201 (1997); NEV. REV. STAT. § 176A.100 and 176A.440 (1997); N.H. REV. STAT. ANN. § 651:2(V)(b) (1996 & 1998 Supp.); N.M. STAT. ANN. § 31-21-13.1 (Michie 1978 & 1997 Supp.); N.C. GEN. STAT. § 15A-1343(b1)(3c) (1988 & 1998 Supp.); N.D. CENT. CODE § 12.1-32-07(3) (1997); OKLA. STAT. ANN. tit. 22, § 1511 (West 1999 Supp.) (authorizing the establishment of criteria for, inter alia, probation including house arrest); OR. REV. STAT. § 137.540(2) (1997); S.C. CODE ANN. 24-21-430(10) (Law Co-op 1989 & 1998 Supp.); UTAH CODE ANN. § 77-18-1(8)(a)(vi) (1995 & 1998 Supp.); W. VA. CODE § 62-11B- 4(a)(1997 & 1998 Supp.); WYO. STAT. ANN. § 7-13-1102 (1995 & 1996 Supp.) (authorizing an intensive supervision program including house arrest for probationers and parolees).

   Other states authorize incarceration as a condition of probation. See, e.g., ALASKA STAT. § 12.55.086 (Michie 1998); ARK. CODE ANN. § 5-4-304 (Michie 1997); N. J. STAT. ANN. § 2C:45-1 (West 1995 & 1999 Supp.); S. D. CODIFIED LAWS § 23A-27-18.1 (Michie 1998 & 1999 Supp.).

[***15]

   [**689] We must decide in this case whether home detention, in the absence of explicit statutory authority, is a permissible condition of probation. One student commentator notes:

   Where there is no explicit statutory authority to impose house arrest, either as a condition of probation or as a sentence independent of a probationary sanction, appellate courts may find that its imposition constitutes an abuse of judicial discretion. Judges have broad power to formulate conditions of probation, but that power is not unlimited. It is useful to draw an analogy to cases invalidating jail as a condition of probation in jurisdictions where incarceration is not authorized by statute. Lacking the inherent power to [*297]impose probation, some jurisdictions have been reluctant to apply harsh, unauthorized restrictions on probationers: 'Jurisdictions holding that imprisonment is not a valid condition of probation generally rely on the lack of express statutory authority permitting such action.'
 
See Hurwitz, supra, at 789 (alteration in original) (footnotes omitted) (quoting Stone, 43 Md. App. at 332, 405 A.2d at 347).

   The Maryland General Assembly has explicitly authorized[***16] courts to impose a sentence of confinement as a condition of probation in some but not all subdivisions. See e.g., Art. 27, §639(a)(2); Art. 27, § 641(a)(1)(i)(2); Art. 27, Section 641(A)(a)(2) n9. Subsection 641(a)(2) authorizes courts in Charles County, St. Mary's County, Cecil County, Harford County and Calvert County to impose as a condition of probation a sentence of confinement.  Id. Thus, if home detention were to be considered a term of confinement, and the terms of the house arrest were reasonable, clearly it would be permissible as a condition of probation in those counties.  

n9 Subsection 639(a)(2) provides in pertinent part:

   Section 639. Suspension of sentence generally; orders and terms; minors; intoxicated drivers; weekend confinement in Prince George's County; conviction of controlled dangerous substance offense.

   (a) Suspension of sentence generally; orders and terms; minors.

   (2) In Charles County, St. Mary's County, and Calvert County, the court may impose a sentence of confinement as a condition of probation.
 
Subsection 641(a)(1)(i)(2) provides in pertinent part:

   Section 641. Probation prior to judgment; terms and conditions; intoxicated drivers; violation of probation; fulfillment of terms of probation.

   (a) Probation after plea or finding of guilt; terms and conditions; waiver of right to appeal from judgment of guilt.

    (1)(i)(2) In Allegany County, Calvert County, Charles County, Garrett County, and St. Mary's County, the court may impose a sentence of confinement as a condition of probation.

   Conditions of home detention vary extensively. The duration of house arrest can range from hours to years. See, e.g., Yourn v. State, 579 So. 2d 309, 310 (Fla. Dist. Ct. App. 1991) (holding that twenty-four years house arrest was illegal under [*298] [**690] Florida's Community Control statute); Coleman v. State, 564 So. 2d 1238, 1239 (Fla. Dist. Ct. App. 1990) (holding that Florida's Community Control statute does not permit imposition of thirteen years community control). In the absence of statutory limits, the term of home detention could exceed the maximum statutory limit for incarceration. See, e.g., FLA. STAT. ANN. § 948.01(4) (Harrison 1998) (providing that period of community control cannot exceed[***17] two years); N.H. REV. STAT. ANN. § 651:2(V)(b) (1996 & 1998 Supp.) (providing that term of home confinement may not exceed one year for a Class A misdemeanor and five years for a felony). The offender could be required to remain in the home for twenty-four hours, or to be at home for precise times in the evenings or when not engaging in designated activities, i.e., school, employment, community service, religious activities. In other words, sometimes terms of house arrest may be so restrictive that the terms approximate incarceration, albeit outside the prison walls. See 76 Md. Op. Att'y. Gen. 110, 113 (1991) (noting that in the sense that a person's liberty is restrained by home detention, that person is incarcerated).

   For these reasons, we will not determine on a case-by-case basis whether the particular terms and conditions of home detention imposed as a condition of probation are so onerous as to constitute the equivalent of imprisonment or equate to a "term of confinement." n10 A bright-line rule that in order to impose home detention as a condition of probation, statutory authorization is necessary, will eliminate any uncertainty for trial judges and defendants [***18]alike. See generally M. Burns, Comment, Electronic Home Detention: New Sentencing Alternative Demands Uniform Standards, 18 J. CONTEMP. L. 75 (1992). Judicial economy will also result because courts will [*299] not have to determine on a case-by-case basis whether the conditions as such amount to confinement, whether the defendant can be punished by escape, and whether the home detention restrictions in one county are permissible and not so in another county. Accordingly, we hold that in the absence of statutory authority, a court in this state may not impose home detention or house arrest as a condition of probation. n11 [*300] As is evident [**691] from the enactment of Article 27, § 641A(a)(2), when the General Assembly chooses to permit home detention as a condition of probation, it knows how to do so.

n10 To the extent that Schlossman v. State, 105 Md. App. 277, 659 A.2d 371 (1995), cert. dismissed as improvidently granted, 342 Md. 403, 676 A.2d 513 (1996), is inconsistent with our holding today, it is overruled. In Schlossman, the Court of Special Appeals held that because the house arrest restrictions were not particularly onerous in that particular case, house arrest as a condition of probation was lawful because it was not "incarceration." Id. at 303, 659 A.2d at 383. 

[***19] 

n11 We shall address several points raised by the dissent. The disagreement between the majority opinion and the dissent is one of attitude---the dissent basically concluding that from the premise that home detention is a good thing, home detention is a permissible condition of probation. The dissent argues that the General Assembly intended to permit home detention as a probation condition, and alternatively, that it is good for courts to get ahead of legislatures. See Diss. op. at 7.

   As to the first conclusion, it is clear that the legislature did not explicitly authorize home detention as a condition of probation. As to any implicit approval, legislative intent is far from clear. Business Occupations and Professions Article § 20-101 et seq. was enacted to regulate and license private home detention operators, and not as a grant of authority for trial judges to impose home detention as a condition of probation. See Bill File for Senate Bill 633 (1998); Revised Fiscal Note, Private Home Detention Monitoring Agencies. The statutory language of § 20-401 relied upon by the dissent can as readily be interpreted to refer to those five counties wherein a term of confinement is a permissible condition of probation and not as a broad grant of authority for home detention generally. The second basis is purely a policy consideration and one best suited for the General Assembly. See State v. Sowell, 353 Md. 713, 728 A.2d 712 (1999).

   The dissent quotes from Northern Kentucky Law Review, A Brief History of House Arrest and Electronic Monitoring, for the proposition that "while home confinement has been adopted through the legislative process in certain instances, it has been more common to implement it through administrative or judicial fiat." Diss. op. at 6 (quoting J.R. Lilly & R.A. Ball, A Brief History of House Arrest and Electronic Monitoring, 13 N. KY. L. REV. 343, 372 (1987)). The article continues as follows:

   This may pose a problem if only because the policy may be altered with every new administrator or judge. Legislation allows for a full, public debate. This in turn serves to legitimize the practice and to provide for greater consistency in its implementation.

Id. (emphasis added).

   The dissent concludes with a call to emotion, arguing that "I am sure literally hundreds of offenders have been so sentenced [to home detention as a condition of probation]." Diss. op. at 11. Whether one offender or one hundred offenders has been sentenced in this fashion has no bearing on whether the General Assembly has authorized home detention as a condition of probation and is thus irrelevant.

   Finally, we address the dissent's criticism that we have confused probation conditioned on a period of confinement in a penal institution with probation conditioned on a reasonable period of home detention monitoring. Diss. op. at 1. We have done no such thing. We reiterate our rationale, not addressed by the dissent: Because home detention may in many cases be the equivalent of a "term of confinement", impermissible in most jurisdictions in Maryland, we will not engage in a case-by-case review to determine if the condition is authorized and simply leave the policy question to the General Assembly, the appropriate forum. 

[***20]

   As we have noted, the federal government and many states have enacted legislation permitting home detention as a condition of probation. See, e.g., 18 U.S.C. § 3563 (1994 & Supp. III 1998) and U.S. SENTENCING GUIDELINES MANUAL § 5F1.2 (1998) (providing that a court may impose home detention as a condition of probation, but only as an alternative to incarceration); ALA. CODE § 15-18-175 (1995 & 1998 Supp.) (providing that home confinement as a condition of probation is permissible, including a presumption that a person in home detention is entitled to half-credit toward sentencing); 730 ILL. COMP. STAT. ANN. 5/5-6-3 (b)(10) (West 1997 & 1999 Supp.) (authorizing home confinement as a condition of probation and setting forth mandatory conditions of the confinement); IND. CODE ANN. § 35-38-2-2.3 (15) (Michie 1998) (authorizing home detention as a condition of probation); S.C. CODE ANN. § 24-21-430(10) (Law Co-op. 1989 & 1999 Supp.) (same); UTAH CODE ANN. § 77-18-1(8)(vi) (1995 & 1998 Supp.) (same). A statute can designate the general class of offenders to which home detention is applicable. See, e.g., W. VA. CODE § 62-11B-6 (1997 & 1998 Supp. [***21] ) (designating when home incarceration may not be ordered). A statute can also permit or prohibit good conduct credit for time served in home detention when imposed as a condition of probation. See, e.g., CAL. PENAL CODE § 2900.5 (West 1999 Supp.) (providing that days served in home detention as a condition of probation shall be credited against defendant's sentence). Solution of this [*301]issue by the Legislature is most appropriate and is supported by sound practical reasons. The Legislature is better suited to crafting the limitations of the program and the permissible duration of the home confinement viz a viz the maximum period of incarceration. We recognize that home detention might be beneficial in many cases; nonetheless, we believe that "this policy and the limits which should be placed upon it are matters properly for the legislature to consider and not for this court to attempt to read into the present statute(s)."  Stone, 43 Md. App. at 336, 405 A.2d at 348-49 (quoting People v. Ledford, 173 Colo. 194, 477 P.2d 374, 376 (Colo. 1970)). n12

n12 The Maryland General Assembly has authorized the use of home detention in other circumstances. See Maryland Code (1957, 1996 Repl. Vol., 1998 Supp.) Art. 27, § 689A (applicable to prisoners serving part or all of a sentence in home detention); Maryland Code (1957, 1997 Repl. Vol., 1998 Supp.) Art. 41, § 4-602A (applicable to parolees or mandatory supervisees in home detention); and Maryland Code (1957, 1997 Repl. Vol., 1998 Supp.), Art. 41, § 4-1401 et seq. (applicable to persons in home detention awaiting trial).

[***22]

    This brings us to the appropriate remedy to be accorded Petitioner. Inasmuch [**692] as the trial court imposed a condition of probation not authorized by law, we shall remand this matter for re-sentencing in accordance with law. See MD. CODE ANN., CTS. & JUD. PROC. § 12-702; Md. Rule 8-604(d)(2). That court may find that the issue in this appeal has been rendered moot; there is evidence in the record that the court issued a summons for violation of probation following Petitioner's arrest for possession of paraphernalia and possession of marijuana. If the trial court finds that the defendant's probation has not been revoked, the court shall strike the home detention as a condition of probation.
 
JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED; CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO REMAND THE CASE TO THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. COSTS IN THIS COURT AND IN THE COURT [*302] OF SPECIAL APPEALS TO BE PAID BY ANNE ARUNDEL COUNTY. 

DISSENTBY: Chasanow

DISSENT:  
Dissenting Opinion by Chasanow, J.:

   The majority holds that "in the absence of statutory authority, a trial judge lacks power to order home detention as[***23] a condition of probation." I respectfully dissent. The general statutory authority given to judges to impose conditions of probation is broad enough to permit probation with intensive supervision including a reasonable period of home detention monitoring, and no court in any jurisdiction has ever held to the contrary. The issue is one of legislative intent, and our legislature has made quite clear its intent that the authority to impose home detention is included in the authority to impose other conditions of probation.

   There are two separate and distinct conditions of probation that the majority seems to confuse. First, probation may be conditioned on a period of confinement in a penal institution. Cases in some states, including Maryland, have held that there must be express legislative approval in order to make incarceration in a penal institution a condition of probation. In Maryland, as will be discussed, this penal incarceration as a condition of probation is only permissible in five designated counties. Second, probation may be conditioned on a reasonable period of home detention monitoring. This is a form of intensive, electronically supervised probation. The majority cites[***24] no case from any jurisdiction that requires legislative approval, other than the authorization to impose probation, in order for a court to impose a reasonable period of home detention monitoring as a condition of probation.

   BACKGROUND

   In Anne Arundel County there is a program of home detention supervision that is utilized for three types of individuals: (1) as a form of pretrial release for defendants awaiting trial; (2) by the county detention center for committed inmates [*303] serving their sentences; and (3) for probationers as a condition of probation. There are differences between inmates committed to the detention center who are placed on home detention and inmates on probation who are on home detention as a condition of probation. Among the distinctions are that, if a committed inmate departs from home detention without authorization, the inmate can be guilty of escape. If there are other violations of the rules of home detention by an inmate, then the inmate can be remanded to the detention center without the need for any action by the court. See Dedo v. State, 343 Md. 2, 13-14, 680 A.2d 464, 470 (1996). On the other hand, if a probationer on home detention departs[***25] without authorization, this would not be an escape under the escape statutes applicable at the time Bailey was sentenced. n13 [**693]If a person on probation violates any of the rules of home detention, the remedy is to charge a violation of probation, and a court hearing is necessary to revoke probation.

n13 Cf. Chapter 422 of the Acts of 1999, effective October 1, 1999.

   The sentence meted out to the defendant in the instant case was carefully crafted to punish and rehabilitate. It included a period of incarceration followed by a period of probation. Home detention was expressly made a condition of probation, not part of the period of incarceration. At sentencing the trial judge stated:

   "You will serve home detention for a period of twenty-four months when you are released from the Anne Arundel County Detention Center commencing upon release from the Detention Center, and you will be subject to all rules and restrictions of the House Arrest Program. You'll be permitted to work. You'll be permitted to do any counseling. [***26] You'll be permitted to do any public work that I might order. There is to be no use of any alcoholic beverages or any kinds of drugs. There are certain requirements and rules that you'll be required to follow in order to be on the House Arrest Program. This is a condition of probation. If you violate the House Arrest Program, they will then tell [*304]me and you will be back for a violation of probation hearing."

   CONFINEMENT IN A PENAL INSTITUTION AS A CONDITION OF

   PROBATION VS. HOME DETENTION AS A CONDITION OF PROBATION

   Unquestionably a judge may impose a split sentence of a period of confinement followed by a period of probation, but the states are divided on whether a judge, without imposing a sentence of incarceration, may make a period of incarceration in a penal institution a condition of probation. An article that contains a good survey of the case law in this area is Donald M. Zupanec, Annotation, Propriety of Conditioning Probation on Defendant's Serving Part of Probationary Period in Jail or Prison, 6 A.L.R. 4th 446, § 2[a], at 450-51 (1981). The author summarizes the annotation as follows:

   "When a person who has been convicted of a criminal offense is placed [***27]on probation, the courts commonly impose conditions with which the probationer must comply during the period of probation or face the prospect of probation revocation. In recent years, an increasing number of courts, in placing persons on probation, have ordered that they serve a period of incarceration in jail or prison as a condition of probation.
 
   Since the power to grant probation depends on statutory authority, it is clear at least as a general rule that some period of incarceration can validly be made a condition of probation when the statute authorizing probation expressly authorizes conditional incarceration. However, where the statute contains only general authority to impose probationary conditions, such as by authorizing probation on such 'terms and conditions as are deemed proper,' the courts have reached different conclusions concerning the validity of incarceration as a condition of probation. On the one hand, a number of courts have taken the position that such a condition is valid, particularly when the period of incarceration is short. However, other courts, generally reasoning that incarceration is contradictory to the basic concept of [*305] probation, have taken the position[***28] that, in the absence of express statutory authority, it is not proper to order a probationer to serve a conditional period of incarceration." (Footnotes omitted).
 
The Court of Special Appeals considered the issue in Stone v. State, 43 Md. App. 329, 405 A.2d 345 (1979) stating:

   "We conclude that in the absence of express statutory authority, confinement in a jail-type institution, such as the [**694] Anne Arundel County Detention Center, is not an authorized condition of probation. Probation by its very nature implies the absence of incarceration. In fact, Article 41, section 107(f) of the Code defines probation as 'the conditional exemption from imprisonment allowed any prisoner by suspension of sentence in the circuit court for any county of this State or in the Criminal Court of Baltimore.'"
 
43 Md. App. at 335-36, 405 A.2d at 348.

   The Court of Special Appeals has recognized that there is a significant difference between incarceration as a condition of probation, which it held was not permissible without further legislative approval, and home detention, which it held was permissible under the general authority to impose conditions of probation. Three[***29] years ago, in Schlossman v. State, 105 Md. App. 277, 659 A.2d 371 (1995), cert. dismissed as improvidently granted, 342 Md. 403, 676 A.2d 513 (1996), a sentence almost identical to the sentence in the instant case was expressly approved by the Court of Special Appeals. That court was careful to point out the distinction between incarceration as a condition of probation and home detention as a condition of probation, stating:

   "We do not dispute the well settled rule in Maryland that, absent statutory authority, 'a court cannot impose imprisonment as a condition of probation.' Maus v. State, 311 Md. 85, 104, 532 A.2d 1066 (1987)(citing Stone, 43 Md. App. at 336, 405 A.2d 345). Unlike the appellant in Stone, however, appellant in the case sub judice is not subject to 'confinement in a jail-type institution.' Stone, 43 Md. App. at 335, 405 A.2d 345. Instead, he is confined to his own residence [*306] whenever he is not working or attending school." (Footnote omitted).
 
Schlossman, 105 Md. App. at 299, 659 A.2d at 382. Prior to Schlossman, in Balderston v. State, 93 Md. App. 364, 612 A.2d 335 (1992),[***30] the Court of Special Appeals held that home detention as a condition of probation was not the same as custody and the defendant is not entitled to credit on his prison sentence for time spent on probation even though on home detention.
 
   HOME DETENTION AS A CONDITION OF PROBATION

   Although the authority to impose conditions of probation is not unlimited, it is quite broad. Maryland Code (1957, 1996 Repl. Vol.), Article 27, § 641A states, "the court having jurisdiction may suspend the imposition or execution of sentence and place the defendant on probation upon such terms and conditions as the court deems proper." As previously noted, the Court of Special Appeals has held this grant of authority is broad enough to permit intensive supervision including home detention as a condition of probation, albeit not incarceration as a condition of probation. Neither the majority nor any party has cited a single case holding that a reasonable period of intensive supervision, including home detention, requires special legislative authority in addition to the general authority to grant probation. It is also clear that courts throughout the country have been imposing home detention as a condition[***31] of probation before there was express legislative approval, and this practice has not been condemned by a single case prior to this Court's decision in the instant case. One law review article written several years ago noted that:

   "The first structured implementation of home detention occurred in Albuquerque, New Mexico in 1983. Arizona, California, Illinois, Kentucky, Michigan, Oklahoma, Oregon, and Utah have also experimented with the sanction, although not nearly to the extent of the Florida courts. *** Utah is the only state that has authorized home [*307] detention by statute. See UTAH CODE ANN. § 77-18-1(6)(f)(Supp. 1986)."
 
Fred L. Rush, Jr., Deinstitutional Incapacitation: Home Detention in Pre-Trial and Post- Conviction Contexts, 13 N. KY. [**695] L. REV. 375, 376 n.4 (1987). Another article, although recommending legislative implementation, points out that generally home detention is initiated by the courts. "It is important to note that while home confinement has been adopted through the legislative process in certain instances, it has been more common to implement it through administrative or judicial fiat." J. Robert Lilly & Richard A. Ball, A Brief History [***32]  of House Arrest and Electronic Monitoring, 13 N. KY. L. REV. 343, 372 (1987). Thus, courts throughout the country have been imposing home detention without express statutory authority, yet the majority can find no case disapproving a reasonable period of home detention as a condition of probation.

   There is good reason why courts, in their efforts to fight crime, should be able to experiment with novel conditions of probation without the need for explicit statutory authority.

   "Indeed, it may be appropriate for trial courts to get out ahead of the legislative discussion. Trial courts, not legislatures, preside over trials of individual defendants and administer justice on a case-by-case basis; legislatures can only prescribe general laws and respond to general concerns. The sentencing expertise of trial courts makes them better suited to lead the debate and to oversee the implementation of alternatives."
 
Developments in the Law -- Alternatives to Incarceration, 111 HARVARD L. REV. 1863, 1980 (1998). There is no doubt that home detention can be an effective and desirable condition of probation in some cases. If all courts believed, as the majority[***33] believes, that home detention as a condition of probation is improper without express legislative approval, I suspect the use of home detention would have been delayed considerably.

   [*308] LEGISLATIVE INTENT

   It is obvious from the previously cited decisions of the Court of Special Appeals that for many years trial judges and the intermediate appellate court believed that the broad grant of authority to impose conditions of probation that the judge deems proper included the right to impose home detention. The legislature certainly acquiesced in this interpretation.

   The majority discusses Md. Code (1957, 1996 Repl. Vol.), Art. 27, § 641A (a)(2), which provides in pertinent part: "In Allegany County, Calvert County, Charles County, Garrett County, and St. Mary's County, the court may impose a sentence of confinement as a condition of probation." The majority somehow concludes that this statute was a grant of authority to impose home detention as a condition of probation in five counties. The majority states: "As is evident from the enactment of Article 27, § 641A(a)(2), when the General Assembly chooses to permit home detention as a condition of probation, it knows how to do so." [***34] 355 Md. 287, 299, 734 A.2d 684, 690 (1999). This is a complete misconstruction of that statute as evidenced by its language and explicit legislative history. The statute was not meant to, and did not in any way, deal with home detention; its purpose was to overrule Stone, supra, and permit incarceration in a penal institution as a condition of probation in five counties. The Bill Analysis for Senate Bill 361 clearly and succinctly sets out its purpose and states:

   "Under § 641A(a) of Article 27, a court, upon conviction, may suspend the imposition or execution of a sentence and place a defendant on probation upon such terms and conditions as the court deems proper.

   In Stone v. State, 43 Md. App. 329, 405 A.2d 345 (1979), the Court of Special Appeals held that although § 641A(a) conveys broad discretion on a court to put a defendant on probation on such terms and conditions as the court deems proper, the court's discretion is not unlimited. The court then held that 'in the absence of express statutory authority' confinement in a jail-type institution is [**696] not an 'authorized [*309] condition of probation.' This bill is intended to overrule Stone[***35] and to permit a court to impose a term of imprisonment as a condition of probation."
 
Long before Stone, and long before this legislation was enacted in 1989, the same appellate court that decided Stone had approved home detention-type restrictions as conditions of probation. See Phelps v. State, 17 Md. App. 341, 303 A.2d 430 (1973)(noting that the court, but not probation agent, may impose the condition of custodial care or treatment); Sweeney v. State, 1 Md. App. 233, 229 A.2d 141 (1967)(noting that as a condition of probation, defendant was to spend six months in the Spring Grove State Hospital for treatment of alcoholism). The legislature chose to overrule Stone and permit incarceration as a condition of probation in five counties, but certainly did not intend to overrule decisions that permitted home detention-like conditions of probation. This new statute only dealt with confinement in a penal institution, not home detention, and certainly was not intended to reject home detention in all but five counties.

    There is no question that the legislature has indicated its agreement with the lower courts that have determined that home[***36] confinement was included in the broad grant of authority to impose any conditions the judge deems proper. There should be no need for a statute to reaffirm what the Court of Special Appeals has already held. Further support is found in a statute enacted in 1998. In that year, Senate Bill 633 dealt with private home detention monitoring companies. Home detention was being widely used as a condition of probation, as well as a way of monitoring defendants on pre-trial release pending trial. Its use was so widespread that private companies had begun to do home detention monitoring throughout the state. There was concern that these private companies should be licensed and regulated. Senate Bill 633 was enacted as Md. Code (1989, 1995 Repl. Vol., 1998 Supp.), Business Occupations and Professions Art., § 20-101 et seq. Its purpose was to license and regulate private home detention companies. The legislation also spells out some of the duties of these private home detention companies. The portion of this legislation [*310] that is relevant to the instant discussion was enacted as Md. Code (1989, 1995 Repl. Vol., 1998 Supp.), Business Occupations and Professions Art., § 20-401, General responsibilities. [***37] That section provides, in relevant part:

   "(c) Notice to Division of Parole and Probation of missing defendant. -- Upon determining that an individual who is subject to private home detention monitoring as a condition of probation has been missing for 24 hours, the private home detention monitoring agency responsible for monitoring the individual shall, on the next business day, notify the Division of Parole and Probation." (Emphasis added).
 
That section sets forth one of the duties of a private home detention company that is monitoring someone placed on probation as a condition of probation, but it also shows the legislature's recognition of a judge's authority to impose probation includes the authority to order home detention as a condition of probation. The provision is obviously not intended as a grant of authority to judges. The legislature did not intend that judges could have probationers supervised by private home detention monitoring companies, but not governmental home detention agencies as in the instant case. n13

n13 The majority states: "The statutory language of § 20-401 relied upon by the dissent can as readily be interpreted to refer to those five counties wherein a term of confinement is a permissible condition of probation and not as a broad grant of authority for home detention generally." 1999 Md. LEXIS 468, *19, 355 Md. 287, 300 n.11, 734 A.2d 684, 691 n.11 (1999). This is erroneous. The legislative history indicates that when the provision regulating private home detention companies was before the legislature, several private home detention companies testified or wrote letters to the legislative committees considering the proposal. None of these private home detention companies that were to be regulated by the enactment were located in the "five counties" referred to by the majority. Thus, it seems clear that the legislature recognized that judges could use even private home detention companies to supervise probationers outside of the "five counties" the majority contends are the only jurisdictions authorized to use home detention as a condition of probation.

[***38]

   [**697] The majority recognizes that the issue before the court is one of legislative intent. Did the legislature intend that the broad grant of authority it gave to judges to impose any [*311] condition of probation the judge deems proper include the right to impose home detention as a condition of probation? The wording of the statute would seem to say yes, and every indication we can draw from other relevant legislation would support that interpretation.

   It is obvious from the Court of Special Appeals' decisions involving home detention and the legislative history of Md. Code (1989, 1995 Repl. Vol., 1998 Supp.), Business Occupations and Professions Art., § 20-401 that judges have been placing offenders on home detention as a condition of probation for many years, and I am sure literally hundreds of offenders have been so sentenced. I do not believe all of these people have been illegally sentenced or illegally confined to their homes. I respectfully dissent. n14

n14 Apparently the majority is willing to at least recognize that not all forms of home detention are the equivalent of a term of confinement and therefore not all forms of home detention are impermissible. If that is correct, then it would seem the function of the Court would be to determine if the form of home detention used in the instant case is in effect an impermissible term of confinement. Instead of determining whether the home detention in the instant case is one of the "authorized" forms of home detention, this Court says:

   "Because home detention may in many cases be the equivalent of a 'term of confinement,' impermissible in most jurisdictions in Maryland, we will not engage in a case-by-case review to determine if the condition is authorized and simply leave the policy question to the General Assembly, the appropriate forum." (Emphasis added).
 
355 Md. at 300 n.11, 734 A.2d at 691 n.11. It seems to me that, even if the majority is correct, the Court is abrogating its responsibility when it fails to examine the particular form of home detention imposed in the instant case and fails to determine if it is the equivalent of a "term of confinement." Engaging in such "case-by-case review" is the function of a court.

[***39]

   Judge Rodowsky and Judge Cathell have authorized me to state that they join in the views expressed in this dissenting opinion. 

BELVOIR FARMS HOMEOWNERS ASSOCIATION, INC. v. JOHN C. NORTH,II, CHAIRMAN CHESAPEAKE BAY CRITICAL AREA COMMISSION 
No. 159, September Term, 1998
 
COURT OF APPEALS OF MARYLAND
 
355 Md. 259; 734 A.2d 227; 1999 Md. LEXIS 467

 August  2, 1999, Filed

   PRIOR HISTORY: [***1] Appeal from the Circuit Court for  Anne Arundel  County pursuant to certiorari to the Court of Special Appeals. Case # C-1997-42848 AA. Joseph P. Manck, JUDGE.

DISPOSITION: JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY VACATED; CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO VACATE THE DECISION OF THE ANNE ARUNDEL COUNTY BOARD OF APPEALS AND TO REMAND THE CASE TO THE BOARD OF APPEALS FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION; COSTS TO BE PAID BY RESPONDENT. 
CASE SUMMARY 

PROCEDURAL POSTURE:  Defendants sought review of a decision of the Circuit Court for Anne Arundel County (Maryland) denying defendants a use variance to build additional boat slips on a protected creek under zoning regulations promulgated in the Anne Arundel County, Md., Zoning Code art. 3, § 2-107 (b), governing development in the Chesapeake Bay Critical Area.

OVERVIEW:  Defendants challenged the trial court's decision denying them a variance to build additional boats slips in a residential development in the Chesapeake Bay Critical Area pursuant to restrictions imposed by the Anne Arundel County, Md., Zoning Code art. 3, § 2-107 (b). On appeal, the court held that the Anne Arundel County Board of Zoning Appeals (BZA), which had granted the variance, had erroneously applied the wrong standard in reaching its decision. Under the Anne Arundel County, Md., Zoning Code art. 3, § 2-107 (b), the "unwarranted hardship" standard rather than the "practical difficulties" standard should have been applied. Because the court lacked the authority to grant or deny a variance or substitute its judgment for that of the administrative body, the court remanded the case to the BZA for reconsideration and for application of the correct standard.

OUTCOME:  The court vacated the decision of the circuit court denying defendants a use variance and remanded the issue of whether to grant the variance, which would permit additional boat slips on a protected creek, to the county board of zoning appeals, because the board had erred in applying the "practical difficulties" rather than the "unwarranted hardship" standard when it granted the variance upon initial review.

CORE TERMS:  variance, hardship, unwarranted, practical difficulties, ordinance, reasonable use, zoning, unnecessary hardship, reasonable return, regulation, special exception, zoning ordinance, conditional use, area variance, error of law, local zoning, criterion, administrative agency, vacate, undue, pier, boat, unconstitutional taking, administrative function, undue hardship, beneficial use, restrictive, stricter, state law, lesser

CORE CONCEPTS -  

Environmental Law: Zoning & Land Use: Conditional Use Permits & Variances
See Anne Arundel County, Md., Zoning Code art. 3, § 2-107 (b).

Administrative Law: Judicial Review: Reviewability: Questions of Law
Generally, a decision of an administrative agency, including a local zoning board, is owed no deference when its conclusions are based upon an error of law. However, in certain situations, remand, rather than reversal, is necessary for the local zoning agency to review the evidence further or to take other more appropriate action.

Administrative Law: Judicial Review: Standards of Review: General Rules
It is a fundamental principle of administrative law that a reviewing court should not substitute its judgment for the expertise of the administrative agency from which the appeal is taken. This principle underlies the rule that if an administrative function remains to be performed after a reviewing court has determined that an administrative agency has made an error of law, the court ordinarily may not modify the agency order. Under such circumstances, the court should remand the matter to the administrative agency without modification. Finally, if an administrative function remains to be performed, a reviewing court may not modify the administrative agency's action even when a statute provides that the court may affirm, modify or set aside, because a court may not usurp administrative functions.

Administrative Law: Judicial Review: Standards of Review: General Rules
The general rule regarding remand is especially applicable when the statute authorizing the administrative action includes the requirement that the agency consider factors of a legislative or administrative nature.

Environmental Law: Zoning & Land Use: Judicial Review
Ordinarily, courts cannot either grant or deny variances. A circuit court has the power to overrule the denial of a variance, but it must remand the matter to the agency for further consideration using the proper standard. The same holds true for the converse situation if the local zoning board uses the wrong standard in granting a variance: the matter must be remanded for further consideration by the board using the proper standard.

Real Property Law: Zoning & Land Use: Zoning Laws
The Express Powers Act, Md. Ann. Code art. 25A, § 5 (1957, 1998 Repl. Vol.), generally bestows upon a county, as to those enumerated powers, the same powers in respect to local laws, as the state would otherwise have, provided that the county's enactments do not conflict with public general laws.

 Real Property Law: Zoning & Land Use: Zoning Laws
The zoning limitations imposed by Md. Ann. Code art. 66B (1957, 1998 Repl. Vol.), generally do not apply to charter counties. The state legislature, by separate statutory provisions applicable to all jurisdictions, empowers the Chesapeake Bay Critical Area Commission to impose certain requirements on local jurisdictions as to the areas under the Commission's jurisdiction. Md. Ann. Code art. 66B, §§ 8-1801 to 8-1817 (1974, 1990 Repl. Vol., 1998 Cum. Supp.).

Real Property Law: Zoning & Land Use: Zoning Laws
The Express Powers Act, Md. Ann. Code art. 25A, § 5 (1957, 1998 Repl. Vol.), allows counties to utilize a practical difficulties standard with respect to their zoning laws generally, but normally does not require it. The empowerment of a subordinate governmental entity by a dominant governmental entity may permit, but generally does not require, the subordinate entity to assume certain powers. There simply is no conflict with a state law when a local government declines to do that which it is allowed, but not required, to do.

Real Property Law: Zoning & Land Use: Zoning Laws
The Express Powers Act, Md. Ann. Code art. 25A, § 5(X)(2)(v) (1957, 1998 Repl. Vol.), states that the zoning powers it grants to counties shall not be construed to preempt or supersede the regulatory authority of any State department or agency under any general public law. The Chesapeake Bay Critical Area Commission therefore may require chartered counties to adopt any variance standard it deems appropriate, if so empowered by the state's general assembly, and the standard it adopts withstands constitutional scrutiny.

Environmental Law: Natural Resources & Public Lands: Coastal Zone Management
See Md. Ann. Code art. 25A, § 8-1801(b)(2) (1974, 1990 Repl. Vol., 1998 Cum. Supp.).

Real Property Law: Zoning & Land Use: Conditional Use Permits & Variances
The criterion for determining unnecessary hardship is whether the applicable local zoning restriction when applied to the property in the setting of its environment is so unreasonable as to constitute an arbitrary and capricious interference with the basic right of private ownership.

Real Property Law: Zoning & Land Use: Conditional Use Permits & Variances
A "use" variance generally permits a land use other than the uses permitted in the particular zoning ordinance, such as a variance for commercial use in a zone restricted to residential use, while an "area" variance generally excepts an applicant from area, height, density, setback, or sideline restrictions, such as the distance required between buildings.

Real Property Law: Zoning & Land Use: Conditional Use Permits & Variances
When the terms "unnecessary hardship" or one of its synonyms and "practical difficulties" are framed in the disjunctive "or", Maryland courts generally have applied the more restrictive hardship standard to use variances, while applying the less restrictive practical difficulties standard to area variances because use variances are viewed as more drastic departures from zoning requirements.

Real Property Law: Zoning & Land Use: Conditional Use Permits & Variances
As a general rule, variances are granted sparingly, and under exceptional circumstances. The hardship must be substantial and serious to require the grant of a variance.
 
Real Property Law: Zoning & Land Use: Conditional Use Permits & Variances
Use variances are customarily concerned with hardship cases, where the land cannot yield a reasonable return if used only in accordance with the use restrictions of the ordinance and that a variance must be permitted to avoid confiscatory operation of the ordinance. In Maryland, the mere fact that some use other than that permitted under an applicable zoning ordinance would be more profitable than any use which is permitted thereunder is not enough to invalidate a use restriction, if the property can reasonably be used for some purpose for which it is adapted. It is a denial of reasonable use that creates an unwarranted hardship.

Real Property Law: Zoning & Land Use: Conditional Use Permits & Variances
The purpose of a variance is to protect the landowner's rights from the unconstitutional application of zoning law.

COUNSEL: ARGUED BY Sager A. Williams, Jr. and Charles F. Delavan (Eileen E. Powers, Blumenthal, Delavan & Williams, P.A., on brief) all of Annapolis, MD, FOR PETITIONER.
 
ARGUED BY Marianne D. Mason, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General of Maryland, on brief) all of Annapolis, MD, FOR RESPONDENT.

JUDGES: ARGUED BEFORE Bell, C. J.; Eldridge, Rodowsky, Raker, Wilner, Cathell, Karwacki, Robert L. (retired, specially assigned), JJ. Opinion by Cathell, J.

OPINIONBY: CATHELL

OPINION: [**229]

   [*262] Opinion by Cathell, J.

   Filed: August 2, 1999

   Belvoir Farms Homeowners Association, Inc., petitioner, appeals from the decision of the Circuit Court for Anne Arundel County, which, upon a Petition for Judicial Review filed by respondent John C. North, II, Chairman of the Chesapeake Bay Critical Area Commission (Commission), reversed the findings and conclusions of the Anne Arundel County Board of Appeals (Board) granting petitioner a variance from critical area zoning regulations. Petitioner presents four questions in its Petition for a Writ of Certiorari:

   1. Is the "unwarranted hardship" criterion for zoning variances to critical area standards, set[***2] forth in COMAR [*263] 21.01.11.01(A)(1), the same as the traditional "unnecessary hardship" criterion for use variances?

   2. Did the Critical Area Commission's promulgation of the "unwarranted hardship" criterion in COMAR 21.01.11.01(A)(1) exceed the Commission's authority under Title 8, subtitle 18 of the Natural Resources Article of the Annotated Code of Maryland, because the criterion conflicts with other State law?

   [**230] 3. In evaluating a variance application under the "rights commonly enjoyed" and "special privilege" criteria, set forth in COMAR 21.01.11.01(A)(2) & (3), is it permissible to compare the variance proposal to uses or property in the critical area not developed with a variance, including uses or property developed prior to adoption of the critical area law?

   4. Is an administrative board's determination of whether a zoning applicant meets the critical area criteria for a variance, including the "unwarranted hardship" criterion, a question of fact or a mixed question of fact and law?[ n1 ]

n1 Questions 1 and 4 assume certain facts that we do not accept. Accordingly, we have rephrased the questions.

[***3]

   I. Facts

   We shall summarize the facts briefly. Belvoir Farms is a ninety-lot subdivision in Anne Arundel County. Four of these lots are located in the Chesapeake Bay Critical Area within a stretch of land alongside Maynadier Creek. The property within the development that abuts the water, some of which is open space and a recreation area, is now owned by petitioner, the development's community association. In 1986, the community's developer built a private, 200 foot pier off one of the community-owned open space areas.

   Subsequently, the Board granted petitioner a special exception to operate a "community pier" at the subject site and a variance to permit more than the four boat slips allowed by the critical area regulations that impose a limit on the number [*264] of boat slips. A variance to reduce the size of a common driveway also was granted. The issues before this Court relate only to the grant of the variance that allows petitioner to build fourteen more boat slips than permitted by the critical area regulations. n2 

n2 The Court of Special Appeals noted in Chester Haven Beach Partnership v. Board of Appeals, 103 Md. App. 324, 335-36, 653 A.2d 532, 538 (1995), a problem with using variance procedures to remove conditions attached to conditional uses:

   The Board noted that, in addition to the conditional use -- or really, in order to qualify to apply for the conditional use -- the applicants had to get a variance from the six unit per cluster condition and from the provisions of the density percentages, and additional variances from the conditions for which the ordinance required satisfaction in order to be entitled to a conditional use. In other words, the Board perceived, correctly, that the subject project could not meet the requirements the ordinance established for the granting of the conditional use. Therefore, the applicants were attempting to eliminate the conditions by obtaining variances therefrom.
 
   The attempt to follow this procedure creates fundamental and conceptual problems with the generally accepted proposition that, if the express conditions necessary to obtain a conditional use are met, it is a permitted use because the legislative body has made that policy decision. Does the legislative intent that the use be permitted remain if the conditions are not met but are eliminated by an administrative body granting a variance? Upon such an occurrence, the application for a conditional use becomes dependent upon the granting of the variances. Under those circumstances, the presumption that a conditional use is permitted may well fall by the wayside. The policy that establishes certain uses as permitted is predicated upon the satisfaction, not avoidance, of conditions. Conditions the legislative body attaches to the granting of a conditional use normally must be met in accordance with the statute -- not avoided.

   The same reasoning, if correct, may apply to the grant of special exceptions because both special exceptions and conditional uses, under standard zoning principles, are considered to be permitted uses if the requirements of either can be satisfied. (Although often used interchangeably, conditional uses and special exceptions technically are distinguishable. Conditional uses normally relate to uses, while special exceptions relate to yard size, height, density, parking or other dimensional factors.) Generally, special exception provisions require the satisfaction of conditions specified in an ordinance. The impact of a special exception, in relation to the conditions required by the ordinance, may differ if the grant of the exception and its resulting impact is enlarged by a variance. This creates a problematic issue: Does the original purpose for which a special exception has been predetermined to be a permitted use by the Legislature remain valid? We need not address the issue further, but as Chester Haven implied, it is a potential problem that needs consideration by the parties involved on either side of special exception and conditional use issues.

[***4]

   [**231] [*265] Respondent sought judicial review only of the Board's grant of the boat slip variance. The Circuit Court for Anne Arundel County reversed the Board, stating in regard to the standard used by the Board:

   With regard to the Board's determination that failure to grant a variance would cause unwarranted hardship to the Belvoir community, both parties have cited similar language from the Board's decision:
 
Although Belvoir Farms has 90 platted lots, and 360 acres of area, only 4 of the lots are located on the parcel to the east of River Road. The remaining lots are on the western parcel and are not contiguous to the waterfront area. Yet these non-waterfront lots are not far removed from the waterfront property, and a strict application of the law would create practical difficulties in permitting the subdivision to obtain reasonable use of the waterfront property. [Emphasis added.]
 
We shall vacate the judgment of the circuit court and remand this case to that court with instructions to vacate the Board's decision and remand for further proceedings by the Board.

   II. Discussion
 
   The Board appears to have utilized the wrong standard in determining whether the variance[***5] should be issued. Although it did mention the "unwarranted hardship" standard in its conclusion, the Board stated more than once in its opinion that it was utilizing a "practical difficulties" standard:
 
The unique physical conditions inherent in this lot, and the exceptional circumstances involving protection of the environment, make the granting of a variance necessary in order to avoid practical difficulties and to enable the Petitioner to develop this property. . . .[ n3 ]

n3 By this statement, the Board may have been referring to the variance pertaining to the common driveway. We quote the statement nonetheless to show the Board's confusion over the proper standard to apply to either critical area variance.

   [*266] . . . [A] strict application of the law would create practical difficulties in permitting the subdivision to obtain reasonable use of the waterfront property.

   In Anne Arundel County, under the current ordinance, the practical difficulties standard has no application in variances sought in the[***6] critical area. See Anne Arundel County Code (1996), Art. 3, § 2-107(b). In 1993, prior to the grant of the variance in this case, Anne Arundel County modified its critical area variance provisions by adding subsection (b) to section 2-107. Subsection (b), enacted at the insistence of the Commission, eliminated the practical difficulties standard for critical area variances. Thus, while section 2-107 retained a "practical difficulties or unnecessary hardship" standard in subsection (a) for property outside the critical area, that standard no longer applied in critical area variance applications. n4

n4 Apparently, the requirement that property be unique also was modified, if not eliminated, from critical area variances. Subsection (a)(1) of section 2-107 required, and continues to require, the satisfaction of the traditional first prong of a variance requirement that the property possess "certain unique physical conditions, such as irregularity, narrowness or shallowness of lot size and shape, or exceptional topographical conditions peculiar to and inherent in the particular lot." The traditional uniqueness standard was replaced by subsection (b)(1), which addresses critical area variances, with the language "due to the features of a site or other circumstances other than financial considerations, strict implementation of the County's critical area program would result in an unwarranted hardship." (Emphasis added.)

   Respondent compares the St. Mary's County ordinance at issue in North v. St. Mary's County, 99 Md. App. 502, 512, 638 A.2d 1175, 1180, cert. denied sub nom.  Enoch v. North, 336 Md. 224, 647 A.2d 444 (1994), as "almost identical" with the Anne Arundel County provisions. In our view, the St. Mary's County ordinance, as it was mentioned in North, was stricter because it appeared to require a finding that the property was unique in the traditional legal sense of the word. In Anne Arundel County, subsection (b)(1) replaces the uniqueness requirement with considerations of the "features of a site or other circumstances."

[***7]

   [**232] Subsection (b) substitutes different, generally stricter requirements for variances in the critical area:

   [*267] (b) For a property located in the critical area, a variance to the requirements of the County critical area program may be granted after determining that:

   (1) due to the features of a site or other circumstances other than financial considerations, strict implementation of the County's critical area program would result in an unwarranted hardship to the applicant;

   (2) a literal interpretation of the [State critical area regulations] or the County critical area program and related ordinances will deprive the applicant of rights commonly enjoyed by other properties in similar areas within the critical area of the County;

   (3) the granting of a variance will not confer on an applicant any special privilege that would be denied by [State regulations] or the County critical area program to other lands or structures within the County critical area;

   (4) the variance request:

   (i) is not based on conditions or circumstances that are the result of actions by the applicant; and
 
(ii) does not arise from any condition relating to land or building use, either permitted or non-conforming, [***8] on any neighboring property; and
 
(5) the granting of the variance:

   (i) will not adversely affect water quality or adversely impact fish, wildlife, or plant habitat within the County's critical area; and
 
(ii) will be in harmony with the general spirit and intent of the County critical area program.
 
Subsection (b)(1) clearly requires petitioner to prove, and the Board to find, an unwarranted hardship before any variance can be issued. The Board's application of the lesser practical difficulties standard, therefore, was an error of law.

   Generally, a decision of an administrative agency, including a local zoning board, is owed no deference when its conclusions are based upon an error of law. Catonsville Nursing Home, Inc. v. Loveman, 349 Md. 560, 569, 709 A.2d [*268]749, 753 (1998) ("We may reverse an administrative decision premised on erroneous legal conclusions." (citing People's Counsel v. Maryland Marine Mfg. Co., 316 Md. 491, 497, 560 A.2d 32, 34-35 (1989))). This Court, however, has noted that in certain situations remand, rather than reversal, is necessary for the zoning agency to review the evidence further or to take other more appropriate[***9] action:

   It is a fundamental principle of administrative law that a reviewing court should not substitute its judgment for the expertise of the administrative agency from which the appeal is taken. This principle underlies the rule that if an administrative function remains to be performed after a reviewing court has determined that an administrative agency has made an error of law, the court ordinarily may not modify the agency order. Under such circumstances, the court should remand the matter to the administrative agency without modification[.] . . . Finally, if an administrative function remains to be performed, a reviewing court may not modify the administrative agency's action even when a statute provides that the court may "affirm, modify or set aside" because a court may not usurp administrative functions.
 
O'Donnell v. Bassler, 289 Md. 501, 509-11, 425 A.2d 1003, 1008 (1981) (citations omitted) [**233] (footnote omitted). In O'Donnell, we reviewed a local zoning authority's decision to grant a special exception with attached conditions to expand an airport. Upon judicial review, the circuit court modified the local zoning board's decision, ruling that the[***10] conditions were illegal. We noted, however, that "once the Circuit Court determined that the Board had committed an error of law, the Circuit Court should have remanded the matter to the Board without modification because an administrative function remained." Id. at 514, 425 A.2d at 1010. In O'Donnell, we quoted Federal Power Commission v. Idaho Power Co., 344 U.S. 17, 20-21, 73 S. Ct. 85, 87, 97 L. Ed. 15 (1952), in part:
 
"It is the Commission's judgment on which Congress has placed its reliance for control of licenses. When the court decided that the license should issue without the conditions, [*269] it usurped an administrative function. There doubtless may be situations where the provision excised from the administrative order is separable from the remaining parts or so minor as to make remand inappropriate. But the guiding principle, violated here, is that the function of the reviewing court ends when an error of law is laid bare. At that point the matter once more goes to the Commission for reconsideration. 

   The Court, it is true, has power 'to affirm, modify, or set aside' the order of the Commission 'in whole or in part.' But that authority[***11] is not power to exercise an essentially administrative function. . . ."
 
O'Donnell, 289 Md. at 511-12, 425 A.2d at 1009 (citations omitted); see also County Council v. Curtis Regency Serv. Corp., 121 Md. App. 123, 138, 708 A.2d 1058, 1065 (holding the circuit court correctly determined that the local zoning council applied the wrong standard of review, but should have remanded the case to the council to decide the case after applying the correct standard of review), cert. denied, 351 Md. 5, 715 A.2d 964 (1998); 4 Arden H. Rathkopf, The Law of Zoning & Planning, § 42.07[7][a], at 42-104 to 42-105 (noting that upon judicial review, a court may remand a board of appeals's decision for erring as to which ordinance applied or for applying an erroneous standard). This Court also has stated the obverse rule that the power of the circuit court to remand an administrative zoning decision must be preceded by a determination that a local zoning authority has made an error of law. See Northampton Corp. v. Prince George's County, 273 Md. 93, 100-01, 327 A.2d 774, 779 (1974) ("Only if the lower court had determined[***12] that the action of the council [or board] found no support in the facts and that it was unreasonable, arbitrary or capricious and not in accordance with law, could the case have been remanded for reconsideration."); Cohen v. Willett, 269 Md. 194, 196-97, 304 A.2d 824, 825 (1973) (noting that the circuit court exceeds its powers when it remands the decision of a local zoning board for further fact-finding without ruling that the board did not act in accordance with law); Robertson v. County Bd. of Appeals, [*270] 210 Md. 190, 196-97, 122 A.2d 751, 754 (1956) (holding that the circuit court errs when it remands the case without finding an error of law because, without such a finding, the court has no power to modify or reverse the board's decision or to remand the case for taking additional evidence).

   The circuit court in this case properly ruled that the Board applied the wrong legal standard in approving the critical area zoning variance. The court observed: "It is clear that the Board's decision used a lesser standard in determining unwarranted hardship than is required by the case law as developed in the State of Maryland. Consequently, the Board's decision[***13] was in error as a matter of law." The court, however, went on to conclude that because "the Board used a lesser standard, . . . the Board's decision was not supported by substantial evidence that all of the conditions for granting a variance were satisfied. The Court, therefore, finds the Board's ruling to be arbitrary and [**234]capricious." The circuit court then reversed the decision of the Board.

   In light of the cases noted, supra, the more appropriate remedy would have been for the circuit court to remand the case to the Board for further review. Generally, when an administrative agency utilizes an erroneous standard and some evidence exists, however minimal, that could be considered appropriately under the correct standard, the case should be remanded so the agency can reconsider the evidence using the correct standard. The Board, in its findings, may have considered only as much of the evidence before it as necessary, in its view, to authorize the grant of a variance based upon the lesser practical difficulties standard. Additional, unconsidered evidence before the Board may have supported the grant of the variance, even under the stricter unwarranted hardship standard.

   This[***14] general rule regarding remand is especially applicable when the statute authorizing the administrative action includes the requirement that the agency consider factors of a legislative or administrative nature. For example, in the case sub judice, the factors the agency had to consider in Article 3, [*271] section 2-107(b) were of an administrative nature. Specifically, the Board had to determine that
 
(5) the granting of the variance:

   (i) will not adversely affect water quality or adversely impact fish, wildlife, or plant habitat within the County's critical area; and
 
(ii) will be in harmony with the general spirit and intent of the County critical area program.
  
In O'Donnell, 289 Md. at 512, 425 A.2d at 1009, we explained that various factors under the zoning regulations had to be considered by the agency because such determinations were appropriate for administrative, not judicial, review:

   Whether [the general objectives of the statute] may be achieved . . . is an administrative, not a judicial decision. [ Idaho Power Co., 344 U.S. at 20-21, 73 S. Ct. at 87 . . . .]

   Applying these principles to the instant case produces a clear[***15] result. Here the County Council . . . entrusted the determination of whether special exception use permits should be granted to the expertise and judgment of the Board. Under the 1961 Zoning Regulations, the Board was authorized to grant special exception use permits for commercial aircraft landing fields. In exercising this function, the Board was required to "find that such use is essential or desirable to the public convenience and welfare," and that it would not "menace the . . . general welfare." Thus, the grant of the special exception use permit was an administrative, not a judicial, function. Only the board had authority to issue such permits; the Circuit Court did not." [Second alteration in original; citations omitted.]

   In the case sub judice, had the Board declined to grant the variance at issue, and had the circuit court then found that the Board's action in not granting the variance was arbitrary and capricious because the Board had applied the wrong legal standard, the court could not have granted a variance sua sponte, the consideration of which had never been subjected to the proper standard by the administrative agency. Ordinarily, courts cannot either grant [***16]or deny variances. n5 [*272] In those circumstances, the circuit court would have the power to overrule the denial of the variance, but it would have to remand the matter to the agency for further consideration using the proper standard. The same holds true for the converse situation [**235] if the Board uses the wrong standard in granting a variance; the matter must be remanded for further consideration by the Board using the proper standard.

n5 There may be circumstances in which the state of the evidence is such, even if the correct standard had been applied, that, as a matter of law, the actions of the agency in granting or denying relief, as the case may be, would be erroneous. In some of such cases, it may be appropriate for the trial court to direct agency action.

   We shall vacate the decision of the circuit court and direct it to remand the matter to the agency for further proceedings consistent with this opinion. We shall, however, address certain of petitioner's other arguments as necessary to assist the Board in properly[***17] performing its functions on remand.

   We first address petitioner's argument that the Commission regulations mandating Anne Arundel County to adopt an unwarranted hardship standard in its critical area zoning variance provisions conflict with state law. n6 As petitioner notes, the Express Powers Act, Maryland Code (1957, 1998 Repl. Vol.), Article 25A, section 5, broadly empowers chartered counties, such as Anne Arundel County, "to enact local laws, for the protection and promotion of public safety, health, morals, and welfare, relating to zoning and planning." Id. § 5(X)(1)(i). Petitioner essentially argues that this clause authorizes Anne Arundel County to adopt any threshold standard for granting a variance, including a practical difficulties standard in the critical area. We agree. But we disagree [*273] with petitioner that the adoption of that standard is imposed upon Article 25A counties. n7

n6 Respondent argues that petitioner failed to raise this issue below. The record reflects that respondent is correct. We granted the writ of certiorari, however, before this case was heard by the Court of Special Appeals. Accordingly, this Court is not constrained to the questions raised in the petition for certiorari. In such cases, this Court may decide issues for guidance on remand. We deem it important to address petitioner's argument because of the impact our response might have not only in this case, but other cases in the Maryland courts pertaining to critical area matters.

[***18] 

n7 We do not address whether it is mandated in other jurisdictions.

   Broadly stated, section 5 of Article 25A, the Express Powers Act, generally bestows upon a county, as to those enumerated powers, the same powers in respect to local laws, as the State would otherwise have, provided that the county's enactments do not conflict with public general laws. The zoning limitations imposed by Maryland Code (1957, 1998 Repl. Vol.), Article 66B, generally do not apply to charter counties. The Legislature, by separate statutory provisions applicable to all jurisdictions, empowered the Commission to impose certain requirements on local jurisdictions as to the areas under the Commission's jurisdiction. See generally Md. Code (1974, 1990 Repl. Vol., 1998 Cum. Supp.), §§ 8-1801 to 8-1817 of the Natural Resources Article (Chesapeake Bay Critical Area Program). In the exercise of that power, the Commission furthers the purposes of the Legislature.

   Petitioner argues that if the unwarranted hardship standard is stricter than the practical difficulties standard, "then the unwarranted hardship criterion conflicts[***19] with state law because it prohibits something state law permits -- the grant of a variance based on the less strict standard of practical difficulties." Petitioner misstates the issue. Article 25A allows counties to utilize a practical difficulties standard with respect to their zoning laws generally, but normally does not require it. n8 The empowerment of a subordinate governmental entity by a dominant governmental entity may permit, but generally does not require, the subordinate entity to assume certain powers. There simply is no conflict with a state law when a local government declines to do that which it is allowed, but not required, to do. 

 n8 Even where applicable, the practical difficulties standard generally applies to "yard" variances. The variance at issue here for the community pier boat slips is a "use" variance. Generally, use variances are considered under the stricter standard of unnecessary, unreasonable, undue, or unwarranted hardship.

   [**236] [*274] Anne Arundel County may have been under pressure [***20]from the Commission to adopt variance standards that did not include the practical difficulties standard, which the county otherwise may have had the power to adopt. Nevertheless, Anne Arundel County could have litigated the power of the Commission to impose the unwarranted hardship standard. Apparently, it chose not to. Absent constitutional prohibitions, the issue was settled when the county government accepted the Commission's regulatory dictates. n9

n9 We do not consider whether the Commission's position is now consistent with its prior position, which was described to the Legislature as providing a normal variance procedure as relief to the strictness of the Critical Area statutes. That may or may not be relevant if a local jurisdiction ever litigates the power of the Commission to impose its variance requirements on local jurisdictions. In the case sub judice, Anne Arundel County adopted the requirements instead of litigating them. Whether the Commission has the power to impose is simply not relevant when the local government has the power and chooses, for whatever reason, to enact stricter requirements. The solution, if a problem in fact exists, in the absence of constitutional violations, is the ballot box.

[***21]

   Petitioner also argues that the Commission has not been authorized to mandate any variance standard in the critical area. Article 25A, section 5(X)(2)(v), states that the zoning powers it grants to counties "shall not be construed . . . to preempt or supersede the regulatory authority of any State department or agency under any general public law." The Commission therefore may require chartered counties to adopt any variance standard it deems appropriate, if so empowered by the General Assembly, and the standard it adopts withstands constitutional scrutiny. Maryland Code (1974, 1990 Repl. Vol., 1998 Cum. Supp.), section 8-1801(b)(2) of the Natural Resources Article states that one purpose of the state critical area laws is "to implement the Resource Protection Program on a cooperative basis between the State and affected local governments, with local governments establishing and implementing their programs in a consistent and uniform manner subject to State criteria and oversight." (Emphasis added.) Petitioner's variance request to expand upon its [*275] community pier is governed by section 8-1808.5. Subsection (f) of that provision required that "on or before December 31, 1994, a local[***22] jurisdiction shall amend its local critical area protection program to meet the provisions" of section 8-1808.5. Within those program amendments, subsection (e) permitted each local jurisdiction to "grant a variance from the provisions of this section in accordance with regulations adopted by the Commission concerning variances as part of local program development . . . and notification of project applications . . . ." Thus, contrary to petitioner's assertion, the General Assembly has authorized the Commission to create and enforce regulations to guide localities in adopting ordinances that regulate variance requests pertaining to community piers. The Commission regulations and Article 3, section 2-107 of the Anne Arundel County Code are authorized by state statute and, therefore, do not conflict with state law.

   To assist the Board on remand, we also address petitioner's second argument that the unwarranted hardship standard required for a critical area variance is less restrictive than the unnecessary (or undue) hardship standard generally applied to "use" variance applications. n10 We [**237] interpret the [*276]terms generally to be indistinguishable. Cf.  Bright v. City of Evanston, 10 Ill. 2d 178, 182, 139 N.E.2d 270, 272-73 (1956)[***23] (citing Central Trust Co. v. City of Cincinnati, 62 Ohio App. 139, 23 N.E.2d 450, 453 (1939)) (using the terms undue and unwarranted hardship interchangeably). This Court has said that "The criterion for determining unnecessary hardship is whether the applicable zoning restriction when applied to the property in the setting of its environment is so unreasonable as to constitute an arbitrary and capricious interference with the basic right of private ownership." Marino v. Mayor of Baltimore, 215 Md. 206, 217, 137 A.2d 198, 202 (1957). We also have noted: 

n10 A "use" variance generally permits a land use other than the uses permitted in the particular zoning ordinance, such as a variance for commercial use in a zone restricted to residential use, while an "area" variance generally excepts an applicant from area, height, density, setback, or sideline restrictions, such as the distance required between buildings.  Anderson v. Board of Appeals, 22 Md. App. 28, 37-38, 322 A.2d 220, 225-26 (1974); 12 Richard R. Powell, Powell on Real Property, § 79C.16[1], at 79C-538 to 79C-539 (Patrick J. Rohan ed., Matthew Bender 1998). When the terms unnecessary hardship (or one of its synonyms) and practical difficulties are framed in the disjunctive ("or"), Maryland courts generally have applied the more restrictive hardship standard to use variances, while applying the less restrictive practical difficulties standard to area variances because use variances are viewed as more drastic departures from zoning requirements. See McLean v. Soley, 270 Md. 208, 215, 310 A.2d 783, 787 (1973); Loyola Federal Sav. & Loan Ass'n v. Buschman, 227 Md. 243, 248, 176 A.2d 355, 358-59 (1961); Cromwell v. Ward, 102 Md. App. 691, 695 n.1, 651 A.2d 424, 426 n.1 (1995); Red Roof Inns, Inc. v. People's Counsel, 96 Md. App. 219, 225, 624 A.2d 1281, 1284 (1993); Anderson, 22 Md. App. at 38, 322 A.2d at 227. Petitioner argues that its variance application was for an area variance and, therefore, either the practical difficulties standard should apply or the unwarranted hardship language should be equated to a practical difficulties requirement. Although we disagree that the request is for an area variance, it makes no difference what type of variance request petitioner made because section 2-107(b) specifically mandates that it prove an unwarranted hardship, which is clearly more restrictive than proving practical difficulties. See Anderson, 22 Md. App. at 41, 322 A.2d at 227-28 (holding that, even though party sought an area variance, the ordinance required them to prove an unnecessary hardship).

[***24]

   The need sufficient to justify an exception[ n11 ] must be substantial and urgent and not merely for the convenience of the applicant, inasmuch as the aim of the ordinance is to prevent exceptions as far as possible, and a liberal construction allowing exceptions for reasons that are not substantial and urgent would have the tendency to cause discrimination and eventually destroy the usefulness of the ordinance.

n11 This Court and the Court of Special Appeals have noted that in Baltimore City, due to the statutory language, "exceptions" are really variances. See, e.g., Dampman v. Mayor of Baltimore, 231 Md. 280, 285, 189 A.2d 631, 634 (1963) ("In Baltimore City there appears to be no distinction between the two terms."); Cromwell, 102 Md. App. at 705, 651 A.2d at 431 ("Baltimore City, by the terms of its ordinance, applies the same standards to both variances and special exceptions . . . . Thus, the Baltimore City special exceptions procedure is one only by title. For all practical purposes, it is also a variance procedure.").

[***25]
 
Carney v. City of Baltimore, 201 Md. 130, 137, 93 A.2d 74, 76-77 (1952). See also Marino, 215 Md. at 216, 137 A.2d at 202 ("As a general rule, [variances] are granted sparingly, and [*277] under exceptional circumstances."); North v. St. Mary's County, 99 Md. App. 502, 518-19, 638 A.2d 1175, 1183 (citing numerous Court of Appeals opinions denying variances), cert. denied sub. nom Enoch v. North, 336 Md. 224, 647 A.2d 444 (1994); 12 Richard R. Powell, Powell on Real Property, § 79C.16[1], at 79C-554 (Patrick J. Rohan ed., Matthew Bender 1998) ("The 'hardship' must be substantial and serious to require the grant of a variance."); 3 E. C. Yokley, Zoning Law and Practice, § 21-6, at 296 (4th ed. 1979) ("The general rule is that a variance is proper or permissible only in cases of necessity and for substantial and compelling reasons.").

   Maryland appellate courts have offered two different definitions of what constitutes an unwarranted, undue, or unnecessary hardship. In Loyola Federal Sav. & Loan Ass'n v. Buschman, 227 Md. 243, 248, 176 A.2d 355, 358 (1961), this Court stated "that use variances[***26] are customarily concerned with 'hardship' cases, where the land cannot yield a reasonable return if used only in accordance with the use restrictions of the ordinance and that a variance must be permitted to avoid confiscatory operation of the ordinance." [**238] (Emphasis added.) We then noted that "in this State . . . the mere fact that some use other than that permitted under an applicable zoning ordinance would be more profitable than any use which is permitted thereunder is not enough to invalidate a use restriction, if the property can reasonably be used for some purpose for which it is adapted." Id. at 248-49, 176 A.2d at 358 (emphasis added); see also Anderson, 22 Md. App. at 38, 322 A.2d at 226 (noting that to meet the undue hardship standard, the applicant must prove that "if he complied with the ordinance he would be unable to secure a reasonable return from or to make any reasonable use of his property." (citing Pem Constr. Co. v. Mayor of Baltimore, 233 Md. 372, 378, 196 A.2d 879, 882 (1964); Marino, 215 Md. at 218, 137 A.2d at 202)). Finally, interpreting the unwarranted hardship standard in a St. Mary's[***27] County critical area zoning ordinance, the Court of Special Appeals said in North, 99 Md. App. at 517, 638 A.2d at 1182, that "it is a denial of reasonable use that creates an unwarranted hardship."

   [*278] Both of these standards, "denial of reasonable use" and "denial of a reasonable return," have been adopted in other jurisdictions. A majority of the courts addressing the issue appear to adopt the denial of reasonable use standard. See Ex Parte Chapman, 485 So. 2d 1161, 1162 (Ala. 1986) (stating that an unnecessary hardship is proved when the premises "cannot be put reasonably to a conforming use because of the limitations imposed upon them . . . ."); Ivancovich v. City of Tucson Bd. of Adj., 22 Ariz. App. 530, 538, 529 P.2d 242, 250 (1974) ("A use variance cannot be granted unless the situation arises where reasonable use cannot be made of the property in a manner consistent with the zoning regulations."); Town of Indialantic v. Nance, 485 So. 2d 1318, 1320 (Fla. Dist. Ct. App.) (noting that an applicant must prove a hardship by showing that no "reasonable use . . . can be made of the property" or that it is "virtually [***28]impossible to use the land for the purpose for which it is zoned."), review denied, 494 So. 2d 1152 (Fla. 1986); Suess v. Vogelgesang, 151 Ind. App. 631, 636, 281 N.E.2d 536, 540 (1972) (stating that hardship exists when "the property for which variance is sought cannot reasonably be put to conforming use."); Kirkwood v. Board of Appeals, 17 Mass. App. Ct. 423, 429, 458 N.E.2d 1213, 1217 (1984) (noting that "hardship is usually present when a landowner cannot reasonably make use of his property for the purposes . . . allowed by the zoning ordinance."); Hedlund v. City of Maplewood, 366 N.W.2d 624, 627 (Minn. Ct. App. 1985) ("Undue hardship means[] the property in question cannot be put to a reasonable use if used under conditions allowed by official controls . . . ." (quoting Minn. Stat. § 462.357, subd. 6(2) (1982))), overruled on other grounds by Myron v. City of Plymouth, 562 N.W.2d 21 (Minn. Ct. App. 1997); Husnander v. Town of Barnstead, 139 N.H. 476, 478, 660 A.2d 477, 478 (1995) ("Hardship warranting the grant of a variance exists where 'the deprivation resulting from application[***29] of the ordinance [is] so great as to effectively prevent the owner from making any reasonable use of the land.'" (quoting Governor's Island Club v. Town of Gilford, 124 N.H. 126, 130, 467 A.2d 246, 248 (1983) (alteration in original))); Eagle Group v. [*279] Zoning Bd. of Adj., 274 N.J. Super. 551, 563, 644 A.2d 1115, 1121 (1994) (defining "undue hardship" as circumstances when "the property cannot reasonably be developed with a conforming use." (quoting Medici v. BPR Co., 107 N.J. 1, 4 n.1, 17 n.9, 526 A.2d 109, 110 n.1, 117 n.9 (N.J. 1987))); Downtown Neighborhoods Ass'n v. City of Albuquerque, 109 N.M. 186, 191, 783 P.2d 962, 967 (N.M. Ct. App. 1989) ("[Unnecessary hardship] ordinarily refers to circumstances in which no reasonable use can otherwise be made of the land."); Gadhue v. Marcotte, 141 Vt. 238, 240, 446 A.2d 375, 376 (1982) (noting that a state statute required proof of the denial of all reasonable use before a variance could be granted); Buechel v. State Dept. of Ecology, 125 Wash. 2d 196, 205-10, [**239] 884 P.2d 910, 916-18 (1994) (interpreting a state environmental statute[***30] that required preclusion or significant interference with reasonable use of the property); State v. Kenosha County Bd. of Adj., 218 Wis. 2d 396, P31, at 414, 577 N.W.2d 813, 821 (Wis. 1998) (adopting the definition of unnecessary hardship as allowing "no reasonable use of the property without a variance"); see also 12 Powell, supra, § 79C.16[1], at 79C-549 ("[Unnecessary hardship] usually refers to a situation where no reasonable use can otherwise be made of the land.").

   A few jurisdictions define the hardship necessary to grant a use variance as the denial of a reasonable return on the property. See Jenney v. Durham, 707 A.2d 752, 758 (Del. Super. Ct.) ("The unnecessary hardship standard requires the applicant to show that . . . the property cannot yield a reasonable return when used only for a permitted use . . . ."), aff'd, 696 A.2d 396 (Del. 1997); Downtown Cluster of Congregations v. District of Columbia Bd. of Zoning Adj., 675 A.2d 484, 491-92 (D.C. 1996) ("To demonstrate undue hardship, an applicant must prove that the property cannot be 'put to any conforming use with a fair and[***31] reasonable return arising out of the ownership thereof.'" (quoting Palmer v. Board of Zoning Adj., 287 A.2d 535, 542 (D.C. 1972))); Greenawalt v. Zoning Bd. of Adj., 345 N.W.2d 537, 542 (Iowa 1984) (noting that an applicant establishes unnecessary hardship by showing that the property "cannot yield a reasonable return if used only for [*280] a purpose allowed in that zone. . . ."); Goldstein v. City of S. Portland, 1999 ME 66, P4, 728 A.2d 164, 165 (1999) (quoting a state statute that defines undue hardship as when the property "can not yield a reasonable return unless a variance is granted."); Otto v. Steinhilber, 282 N.Y. 71, 76, 24 N.E.2d 851, 853 (1939) ("Before the Board may . . . grant a variance upon the ground of unnecessary hardship, the record must show that . . . the land in question cannot yield a reasonable return if used only for a purpose allowed in that zone . . . ."), quoted in Matthew v. Smith, 707 S.W.2d 411, 416 (Mo. 1986). To prove the failure to yield a reasonable return, some courts require that the applicant be denied all beneficial use of the property. See Greenawalt, 345 N.W.2d at 542[***32] ("Lack of a reasonable return may be shown by proof that the owner has been deprived of all beneficial use of his land."), quoted in Matthew, 707 S.W.2d at 417; Goldstein, 1999 ME 66, P5, 728 A.2d at 165 ("In order to satisfy the reasonable return requirement, the applicant must demonstrate that 'strict compliance with the terms of the ordinance would result in the practical loss of substantial beneficial use of the land.'" (quoting Bailey v. City of S. Portland , 1998 ME 54, P6, 707 A.2d 391, 393)); see also Warner v. Jerusalem Township Bd. of Zoning App., 63 Ohio Misc. 2d 385, 392, 629 N.E.2d 1137, 1142 (Ohio Ct. C.P. 1993) (noting that to prove an unnecessary hardship, it is necessary to show that "all permitted uses are not economically feasible or cannot be efficiently continued" because the owner is deprived of all beneficial use of the property); Almeida v. Zoning Bd. of Review, 606 A.2d 1318, 1320 (R.I. 1992) ("Unnecessary hardship exists when literal application of the zoning ordinance completely deprives an owner of all beneficial use of his property and when granting a variance becomes[***33] necessary to prevent an indirect confiscation of the property without compensation.").

   A few jurisdictions provide alternative definitions, though some of these are imposed by statute. See Bowman v. City of York, 240 Neb. 201, 213, 482 N.W.2d 537, 545 (1992) (noting that a state statute and a local ordinance "define undue hardship as a 'demonstrable and exceptional hardship as distinguished [*281] from variations for purposes of convenience, profit or caprice."); Allegheny W. Civic Council v. Zoning Bd. of Adj., 547 Pa. 163, 167-68, 689 A.2d 225, 227-28 (1997) ("Unnecessary hardship is established by evidence that the physical features of the property are such that it cannot be used for a permitted purpose or that the property can be conformed [**240] for a permitted use only at a prohibitive expense" or "that the property has no value for any purpose permitted by the zoning ordinance."); Natrella v. Board of Zoning App., 231 Va. 451, 457, 345 S.E.2d 295, 299 (1986) (noting state code definition of unnecessary hardship as "'effectively prohibiting' the use of the property; or 'unreasonably restricting the use of the property;' or 'where the board [***34]is satisfied . . . that granting of such variance will alleviate a clearly demonstrable hardship approaching confiscation.'" (quoting Va. Code Ann. § 15.1-495(b))).

   Authorities throughout the country thus define the unnecessary, unreasonable, unwarranted, or similarly-worded hardship standards to be either the denial of beneficial or reasonable use or the denial of all viable economic use, the unconstitutional taking standard. It is important to note here that the purpose of a variance is to protect the landowner's rights from the unconstitutional application of zoning law. See, e.g., Packer v. Hornsby, 221 Va. 117, 122, 267 S.E.2d 140, 142 (1980) ("Because a facially valid zoning ordinance may prove unconstitutional in application to a particular landowner, some device is needed to protect landowners' rights without destroying the viability of zoning ordinances."). This does not necessarily mean that a variance may only be granted in cases in which application of a particular zoning ordinance would result in an unconstitutional taking of property. See, e.g., id. ("A statute may, of course, authorize variances in cases where no ordinance's application to [***35] particular property is not unconstitutional."); 8 Eugene McQuillin, The Law of Municipal Corporations, § 25.167, at 761 (3d ed. 1991) ("A condition of difficulty or hardship is not deemed equivalent to a taking of property, in the constitutional sense . . . ." (footnote omitted)). An unconstitutional taking of property generally is proved [*282] when a "regulation denies all economically beneficial or productive use of land." Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1015, 112 S. Ct. 2886, 2893, 120 L. Ed. 2d 798 (1992); see also Dolan v. City of Tigard, 512 U.S. 374, 385, 114 S. Ct. 2309, 2316, 129 L. Ed. 2d 304 (1994) ("A land use regulation does not effect a taking if it . . . does not 'deny an owner economically viable use of his land.'" (quoting Agins v. City of Tiburon, 447 U.S. 255, 260, 100 S. Ct. 2138, 2141, 65 L. Ed. 2d 106 (1980)) (alteration in original)). We reject the proposition that the unnecessary or unwarranted hardship standard is equal to an unconstitutional taking standard. If this were true, it would be a superfluous standard because the constitutional standard exists independent of variance standards. [***36]We generally avoid a construction of statutory language that would render the statute unnecessary, meaningless, or redundant. See Hyle v. Motor Vehicle Admin., 348 Md. 143, 149, 702 A.2d 760, 763 (1997); Board of County Comm'rs v. Bell Atlantic-Maryland, 346 Md. 160, 178, 695 A.2d 171, 180 (1997).

   We hold, therefore, that the unnecessary or unwarranted hardship standard, or similar standards, are less restrictive than the unconstitutional taking standard. The unwarranted hardship standard, and its similar manifestations, are equivalent to the denial of reasonable and significant use of the property. Whether a property owner has been denied reasonable and significant use of his property is a question of fact best addressed by the expertise of the Board of Appeals, not the courts. Thus, we leave the application of this standard to petitioner's variance application to the Board on remand.
 
III. Conclusion

   The Board mistakenly applied the practical difficulties standard to petitioner's variance request. We therefore vacate the judgment of the circuit court and remand the case with instructions to vacate the decision of the Board based on the[***37] Board's failure to apply the unwarranted hardship standard. The circuit court shall remand the case to the Board for further consideration [**241] in accordance with this opinion. We [*283] decline to address petitioner's third question, whether the Board may consider the "rights commonly enjoyed" by others granted variances before critical area zoning came into being, because it would be more appropriate for the Board to reconsider that issue on remand.
 
JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY VACATED; CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO VACATE THE DECISION OF THE ANNE ARUNDEL COUNTY BOARD OF APPEALS AND TO REMAND THE CASE TO THE BOARD OF APPEALS FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION; COSTS TO BE PAID BY RESPONDENT. 

WAYNE RESPER v. STATE OF MARYLAND 
No. 154, September Term, 1998
 
COURT OF APPEALS OF MARYLAND
 
354 Md. 611; 732 A.2d 863; 1999 Md. LEXIS 376

 July  8, 1999, Filed

   SUBSEQUENT HISTORY: [***1] Certiorari Denied November 29, 1999, Reported at: 1999 U.S. LEXIS 7901.

PRIOR HISTORY: Appeal from the Circuit Court for  Anne Arundel  County pursuant to certiorari to the Court of Special Appeals. Case No. K-97-1354. Eugene M. Lerner, JUDGE.

DISPOSITION: JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT. 
CASE SUMMARY 

PROCEDURAL POSTURE:  Appellant sought review of a decision of the sentencing review panel of the Circuit Court for Anne Arundel County (Maryland), which reviewed and modified appellant's sentence pursuant to Md. Ann. Code art. 27, §§ 645JA - 645JG. The primary issue was whether a three-judge sentence review panel had the authority to review a recommendation for Patuxent Institution.

OVERVIEW:  Appellant was convicted after he pled guilty to attempted first degree murder, intimidating or influencing a juror, and reckless endangerment. At sentencing, the judge imposed concurrent sentences with a clarification on the issue made in court before appellant was removed. Appellant sought review of his sentence by a three judge sentencing review panel pursuant to Md. Ann. Code art. 27, §§ 645JA-645JG. The sentencing review panel increased the sentence by making the terms of confinement consecutive and did not make a recommendation for evaluation and possible incarceration at the Patuxent Institution as the trial judge had done. Appellant sought review, arguing that the review panel did not have the authority to review a recommendation for Patuxent Institution. The court affirmed, finding that because the recommendation to Patuxent Institution was often part of the overall sentencing scheme, the review panel had authority to review that portion of the sentence as well. The court found that while admission to Patuxent Institution was not a judicial function because it could only be granted by the Division of Corrections, a Patuxent recommendation was part and parcel of a sentence.

OUTCOME:  The judgment of the lower court and the sentence imposed by the three judge sentencing review panel were affirmed on the basis that a recommendation for Patuxent Institution could be a component of the sentence imposed such that, when a defendant requested review of sentence, the sentencing review panel had the authority to review and revise the entire sentencing scheme, including a Patuxent recommendation.

CORE TERMS:  sentence, recommendation, sentencing, sentence review, reckless endangerment, sentence imposed, referral, review panel, intimidating, influencing, recommend, eligible, merge, legislative intent, courtroom, correction, probation, sentenced, convicted, effective, revise, judicial function, modification, ambiguity, confined, Maryland Laws, correctional institution, sentencing proceeding, first degree murder, sentencing scheme

CORE CONCEPTS -  

Criminal Law & Procedure: Sentencing: Correction, Modification & Reductions
See Md. Ann. Code art. 27, § 645JA.

Criminal Law & Procedure: Sentencing: Correction, Modification & Reductions
Md. R. Crim. Causes 4-345(b) states in pertinent part that the court may not increase a sentence after the sentence has been imposed, except that it may correct an evident mistake in the announcement of a sentence if the correction is made on the record before the defendant leaves the courtroom following the sentencing proceeding.

Criminal Law & Procedure: Sentencing: Mental Incapacity
Referral for evaluation and examination for Patuxent Institution is governed by Md. Ann. Code art. 31B, § 8(a), and under the statute, referral is within the sole discretion of the Commissioner of Corrections. That section provides: (a) Persons who may be referred: Any person who is serving a sentence of imprisonment following conviction of a crime, has more than three years remaining to serve on a sentence, has not been evaluated by or confined at the Institution within the preceding three years, is not disqualified from being an eligible person under Md. Ann. Code art. 31B, § 1(f)(2), and meets the eligibility criteria established by the Secretary under Md. Ann. Code art. 31B, § 4A(c) may be referred by the Commissioner to the Institution for evaluation as to whether the person is an eligible person upon recommendation of the sentencing court, upon application to the Commissioner by the State's Attorney of the county in which the person was last convicted, upon application by the inmate, or upon recommendation of the Commissioner.

Governments: Legislation: Construction & Interpretation
In order to ascertain legislative intent, the court begins by looking at the statutory language itself, as the words of the statute, given their ordinary and popularly understood meaning, are the primary source of legislative intent. If the language of the statute is plain and clear and expresses a meaning consistent with the statute's apparent purpose, no further analysis is ordinarily required. If a statute contains an ambiguity, the court must look to not only the literal or usual meaning of the words, but their meaning and effect in light of the setting, the objectives and purpose of the enactment in order to find a construction that best realizes the legislative intent. When a statute is plainly susceptible of more than one meaning and thus contains an ambiguity the court may consider the consequences resulting from one meaning rather than another and adopt that construction which avoids an illogical or unreasonable result, or one which is inconsistent with common sense.

Criminal Law & Procedure: Sentencing: Appeals
The plain language of the Md. Ann. Code art. 27, § 645JC makes clear that the review panel shall have the power to review a sentence. "Sentence" is the judgment formally pronounced by the court or judge upon the defendant after his conviction in a criminal prosecution, imposing the punishment to be inflicted, usually in the form of a fine, incarceration, or probation. Subject to modification upon review by the sentence review panel, sentencing is within the exclusive domain of the trial judge.

Criminal Law & Procedure: Sentencing: Mental Incapacity
Judges, in sentencing convicted persons to imprisonment to be served at a state correctional institution, shall sentence such persons to the jurisdiction of the Division of Correction, and as such, cannot sentence persons to any particular institution. Md. Ann. Code art. 27, § 690. While a judge may recommend to the Commissioner that a person be referred to Patuxent Institution for evaluation, the Commissioner makes the actual referral for evaluation, and the evaluation team at the Institution makes the ultimate decision as to whether a person is eligible for treatment. Md. Ann. Code art. 31B, § 8(c). In the final analysis, admission to Patuxent Institution is not a judicial function

Criminal Law & Procedure: Sentencing: Mental Incapacity
A sentencing court's activity with respect to Patuxent Institution goes no further than a recommendation to the Commissioner of Correction that a person be evaluated for treatment at the Institution. Nonetheless, the court has treated the recommendation as part and parcel of a sentence, and as having had some potential impact on the structure of the sentence. The court may make a recommendation to the Commissioner irrespective of whether the defendant consents or not.

Criminal Law & Procedure: Sentencing: Correction, Modification & Reductions
Criminal Law & Procedure: Sentencing: Mental Incapacity
A recommendation for Patuxent Institution may be a component of the sentence imposed. Consequently, when a person requests review of sentence, the reviewing panel has the authority to review and revise the entire sentencing scheme.

COUNSEL: ARGUED BY Melissa M. Moore, Assistant Public Defender (Stephen E. Harris, Public Defender, on brief) all of Baltimore, MD, FOR APPELLANT.
 
ARGUED BY Mary Ann Ince, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General of Maryland, on brief) all of Baltimore, MD, FOR APPELLEE.

JUDGES: ARGUED BEFORE Bell, C.J.; Eldridge, Rodowsky, Raker, Wilner, Cathell, Karwacki, Robert L. (retired, specially assigned), JJ. Opinion by Raker, J.

OPINIONBY: RAKER

OPINION: [**864] [*613]
 
Opinion by Raker, J.
 
 Filed: July 8, 1999

   The issue in this appeal is the propriety of the sentence imposed upon Appellant by the sentence review panel which reviewed Appellant's sentence pursuant to Maryland Code [*614] (1957, 1996 Repl. Vol.) Article 27, §§ 645JA - 645JG. n1 The primary question we must answer is whether a three-judge sentence review panel has the authority to review a recommendation for Patuxent Institution. We conclude that it does, and accordingly we shall affirm.

n1 Unless otherwise indicated, all future references to these provisions shall be to Maryland Code (1957, 1996 Repl. Vol.) Article 27, §§ 645JA - 645JG. Subsequent to the sentence review in this case, the General Assembly rewrote § 645JC and § 645JE. 1998 Maryland Laws ch. 367, § 1, at 1914 (effective October 1, 1998) (codified at Maryland Code (1957, 1996 Repl. Vol., 1998 Supp.) Article 27, § 645JC, § 645JE).

[***2]

   I.

   On March 27, 1998, appellant, Wayne Resper, was convicted in the Circuit Court for Anne Arundel County after he pled guilty to attempted first degree murder, intimidating or influencing a juror, n2 and reckless endangerment. At the sentencing proceeding the trial judge stated:

n2 Resper was indicted by the Grand Jury for Anne Arundel County for violation of Maryland Code (1957, 1996 Repl. Vol.) Article 27, § 26. Throughout the record, that charge is referred to as "intimidating or influencing a juror," "intimidating or influencing a witness" or "retaliation for testimony."

   It is the judgment and sentence of this Court for the crime of attempted first degree murder, I sentence you to life imprisonment.

   For the offense of intimidating or influencing a witness, I sentence you to five years to run consecutive.

   To the reckless endangerment, if that crime will merge, I will merge it.

   The Court will, in light of Dr. Spodak's recommendation, recommend you to evaluation at Patuxent Institute for further evaluation[***3] and commitment if you meet their criteria.
 
The court advised Appellant of his appeal rights and review of sentence. The following colloquy then occurred:
 
   THE COURT: You are excused. [*615]

   [STATE'S ATT'Y]: Your Honor, may I beg the Court's indulgence for a moment?

   THE COURT: Yes.

   [STATE'S ATT'Y]: Your Honor, the Court?

   THE COURT: It doesn't. All right. Correction. As to the reckless endangerment, [**865] it is five years. That sentence to run concurrent.

   [DEFENSE ATT'Y]: Thank you, Your Honor.

   THE COURT: All right.

   [DEFENSE ATT'Y]: Do you understand that?

   DEFENDANT. Yeah.

   [DEFENSE ATT'Y]: May we step down, Judge?

   THE COURT: Yes, sir.

   Appellant exercised his right to review of sentence pursuant to Article 27, § 645JA. n3 Before the three judge panel, (Rushworth, J., Heller, J., and Lerner, J.), Appellant argued that, based on the guidelines, the sentence was "unduly harsh." In regard to Patuxent Institution, defense counsel implored the panel to say "that a recommendation to Patuxent is warranted and is made." The State's Attorney took no position on the Patuxent referral.

n3 Article 27,  §  645JA, Right to review of sentence, provides in pertinent part as follows:

   (a) In general. -- Unless no different sentence could have been imposed or unless the sentence was imposed by more than one trial judge, every person convicted of a crime by any trial court of this State and sentenced to serve, with or without suspension, a total of more than two years imprisonment in any penal or correctional institution in this State shall be entitled to have the sentence reviewed by a panel of three or more trial judges of the judicial circuit in which the sentencing court is located. However, a person has no right to have any sentence reviewed more than once pursuant to this section. Notwithstanding any rule of the Court of Appeals to the contrary, the judge who sentenced the convicted person shall not be one of the members of the panel, but if he so desires he may sit with the panel in an advisory capacity only.

[***4]

   The panel modified Appellant's sentence, increasing the sentence imposed by the sentencing judge for reckless endangerment so that the five year sentence runs consecutive to the [*616] five year sentence imposed for retaliation for testimony. The panel was divided as to the Patuxent recommendation. The panel Memorandum and Order stated: "This Panel will not recommend Patuxent Institution but will leave that decision to the appropriate authorities." Judge Heller concurred in all respects with the Order of the panel except that he would not have changed that part of the sentencing court's recommendation that Appellant be considered for admission to Patuxent.

   Appellant noted a timely appeal to the Court of Special Appeals, raising two issues: whether the sentence review panel had the authority to review and modify the circuit court's recommendation for evaluation at Patuxent Institution, and whether the panel had the authority to impose a sentence on the reckless endangerment count based on an argument that the circuit court merged that conviction for sentencing purposes. We issued a writ of certiorari on our own motion to consider these issues.

   II.

   Appellant contends that the trial court[***5] merged the reckless endangerment conviction for sentencing purposes, and therefore, there was no sentence to modify either upward or downward. We can dispose of this contention quickly, because the short answer is that there was no merger of the reckless endangerment conviction. The record reflects clearly that as to that count, the trial court sentenced Appellant to five years, to run concurrent to the other sentences imposed.

   Appellant counters with the argument that the trial judge was bound by his statement that "if that crime will merge, I will merge it" and that the purported correction and modification of the sentence was impermissible because Appellant had been excused from the courtroom.  See Md. Rule 4-345(b) (stating in pertinent part that "the court may not increase a sentence after the sentence has been imposed, except that it may correct an evident mistake in the announcement of a sentence if the correction is made on the record before the defendant leaves the courtroom following the sentencing [*617] proceeding") [**866] (emphasis added). Appellant's argument is frivolous. Not only does the record reflect that Resper was in the courtroom when the judge imposed the sentence[***6] for reckless endangerment; it also reflects that his attorney asked him whether he understood, and he responded in the affirmative. The sentencing phase of the proceeding had not been terminated. Consequently, the court was free to clarify the sentence. See State v. Sayre, 314 Md. 559, 565, 552 A.2d 553, 556 (1989). The sentence review panel acted within its power to modify the sentence.
 
III.

   Appellant's final argument relates to the Patuxent Institution evaluation recommendation. Patuxent Institution was established in 1951 as a result of the adoption of the Defective Delinquents Law, codified as Maryland Code (1951) Article 31B. Its purpose was to confine and treat persons found to be Defective Delinquents until it was safe to release them into society.  Id. at § 5. As a result of severe criticism, n4 the law was repealed by 1977 Maryland Laws ch. 678, effective July 1, 1977, and a new Article 31B was enacted, entitled "Patuxent Institution."  See Md. Code (1957, 1976 Repl. Vol., 1977 Supp.) Art. 31B. n5

 n4 In Watson v. State, 286 Md. 291, 298, 407 A.2d 324, 328 (1979), Judge Orth, writing for the Court, discussed the reasons for the dissatisfaction with Patuxent, noting that the main complaint was with the possibility under the law for a person to remain confined in the Institution long after the original sentence had expired. 

[***7] 

n5 All future statutory references to Patuxent Institution shall be to Maryland Code 1957, 1996 Repl. Vol.) Article 31B, the law in effect at the time of Appellant's sentencing. Effective October 1, 1999, the statutory provisions governing Patuxent Institution shall be contained in Title 4 of the Correctional Services Article of the Annotated Code of Maryland. See 1999 Maryland Laws ch. 54, at 446, 574-606 (repealing Article 31B and establishing a new article to revise, restate, and recodify the laws relating to the State and local correctional systems).

   Referral for evaluation and examination for Patuxent Institution is governed by Article 31B, § 8(a), and under the [*618] statute, referral is within the sole discretion of the Commissioner of Corrections. That section provides as follows:

   (a) Persons who may be referred. -- Any person who is serving a sentence of imprisonment following conviction of a crime, has more than three years remaining to serve on a sentence, has not been evaluated by or confined at the Institution within the preceding three years, is not disqualified from being [***8]an eligible person under § 1 (f)(2) of this article, and meets the eligibility criteria established by the Secretary under § 4A (c) of this article may be referred by the Commissioner to the Institution for evaluation as to whether the person is an eligible person upon recommendation of the sentencing court, upon application to the Commissioner by the State's Attorney of the county in which the person was last convicted, upon application by the inmate, or upon recommendation of the Commissioner.

   Appellant's argument is that the review panel has authority only to review sentences. A recommendation for evaluation is not a sentence. Therefore, he concludes, the review panel has no authority to review or eliminate the sentencing judges's recommendation for evaluation at Patuxent. As such, the recommendation was not properly before the panel for review.

   The State argues that at the sentence review hearing, Appellant agreed that the sentence review panel had the authority to review the sentencing judge's recommendation to Patuxent. He explicitly asked the panel to reconsider "the business of the referral to Patuxent," implicitly recognizing that the Patuxent recommendation constituted[***9] an aspect of the sentence subject to panel review. We agree with the State. Appellant can hardly complain that the review panel improperly considered the recommendation to Patuxent Institution when he requested that it do so. We [**867] nonetheless will consider his arguments on the merits.

   In order to ascertain legislative intent, we begin by looking at the statutory language itself, "as the words of the statute, given their ordinary and popularly understood meaning, are the primary source of legislative intent."  Gargliano [*619] v. State, 334 Md. 428, 435, 639 A.2d 675, 678 (1994). "If the language of the statute is plain and clear and expresses a meaning consistent with the statute's apparent purpose, no further analysis is ordinarily required." Id. If a statute contains an ambiguity, we must look to "not only the literal or usual meaning of the words, but their meaning and effect in light of the setting, the objectives and purpose of the enactment" in order to find a construction that best realizes the legislative intent. Tucker v. Fireman's Fund Ins. Co., 308 Md. 69, 75, 517 A.2d 730, 732 (1986). "When a statute is plainly susceptible of more than one meaning and thus contains [***10]an ambiguity the court may consider the consequences resulting from one meaning rather than another and adopt that construction which avoids an illogical or unreasonable result, or one which is inconsistent with common sense." Wynn v. State, 313 Md. 533, 539, 546 A.2d 465, 468 (1988) (quoting Kaczorowski v. City of Baltimore, 309 Md. 505, 513, 525 A.2d 628, 632 (1987)).

   Article 27, § 645JC, provides in pertinent part as follows:

   The panel shall have the right to require the Department of Parole and Probation to investigate, report, and make recommendations with regard to any such application for review. The panel shall consider each application for review and shall have the power, with or without holding a hearing, to order a different sentence to be imposed or served, including, by way of illustration and not by way of limitation, an increased or decreased sentence, or a suspended sentence to be served in whole or in part, or a sentence to be suspended with or without probation, upon such terms and conditions as the panel may deem just and which could lawfully have been imposed by the sentencing court at the time of the imposition of the sentence under review, or the panel[***11] may decide that the sentence under review should stand unchanged . . . .

   The plain language of the statute makes clear that the review panel shall have the power to review a sentence. [*620] "Sentence" is defined in BLACK'S LAW DICTIONARY (6th ed. 1990) as "the judgment formally pronounced by the court or judge upon the defendant after his conviction in a criminal prosecution, imposing the punishment to be inflicted, usually in the form of a fine, incarceration, or probation." Subject to modification upon review by the sentence review panel, sentencing "is within the exclusive domain of the trial judge." Johnson v. State, 274 Md. 536, 538, 336 A.2d 113, 114 (1975).  See also ABA STANDARDS FOR CRIMINAL JUSTICE SENTENCING (3d. ed.), Standard 18-1.4 (providing that the imposition of sentence is a judicial function to be performed by sentencing courts).

   Judges, in sentencing convicted persons to imprisonment to be served at a State correctional institution, shall sentence such persons to the jurisdiction of the Division of Correction, and as such, cannot sentence persons to any particular institution.  State v. Parker, 334 Md. 576, 592, 640 A.2d 1104, 1112 (1994); Md. Code (1957, [***12] 1996 Repl. Vol.) Art. 27, § 690. While a judge may recommend to the Commissioner that a person be referred to Patuxent Institution for evaluation, the Commissioner makes the actual referral for evaluation, and the evaluation team at the Institution makes the ultimate decision as to whether a person is eligible for treatment. See Art. 31B, § 8(c). In the final analysis, admission to Patuxent Institution is not a judicial function.

   As we have noted, a sentencing court's n6 activity with respect to Patuxent Institution [**868] goes no further than a recommendation to the Commissioner of Correction that a person be evaluated for treatment at the Institution. Nonetheless, we have treated the recommendation as part and parcel of a sentence, and as having had some potential impact on the structure of the sentence. See Watson v. State, 286 Md. 291, 300, 407 A.2d 324, 329 (1979). In Watson, the question before this Court was whether Petitioner's sentence for second degree rape was cruel and unusual punishment or otherwise [*621] improper.  Id. at 293, 407 A.2d at 325. We reversed and remanded the case for a new sentencing because the sentencing judge mistakenly concluded that it had no authority[***13] to order evaluation at Patuxent unless the Petitioner consented. In fact, as Article 31B, § 8(a) reflects, the court may make a recommendation to the Commissioner irrespective of whether the defendant consents or not. We stated:

n6 The sentence review panel, upon revision of the sentence, becomes the sentencing court. See Rendelman v. State, 73 Md. App. 329, 533 A.2d 1339 (1987). 

   We cannot be sure to what extent this mistaken belief actually affected the court's ultimate determination to impose the maximum sentence permitted by law. It may be that the reasoning of the court was that if there was no possibility, in light of Watson's stand, that he would receive the treatment offered by the institution, and by reason thereof be released from confinement as no longer an unreasonable risk on society, new Art. 31 B, § 11(b)(2), the public should be protected from him for the longest period possible. Therefore, . . ., in order to be sure that Watson's sentence is free of taint, we shall vacate the sentence imposed[***14] and remand the case so as to afford the court an opportunity to sentence Watson again, taking into account that it may recommend to the Commissioner of Correction that he be sent to Patuxent Institution for evaluation to determine whether he is eligible for admittance so as to receive the benefits of treatment and services available at the institution.
 
286 Md. at 301-02, 407 A.2d at 330. As the Watson Court concluded, a recommendation for Patuxent may be a component of the sentence imposed. Consequently, when a person requests review of sentence, the panel has the authority to review and revise the entire sentencing scheme.
 
JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT. 

Devilbiss, Terry Lee v. State 
Pet. Docket No. 29, September Term, 1999
 
COURT OF APPEALS OF MARYLAND
 
354 Md. 570; 731 A.2d 969; 1999 Md. LEXIS 386

 June  28, 1999, Decided

NOTICE: 

 [*1]  DECISION WITHOUT PUBLISHED OPINION 

PRIOR HISTORY: (No. K-1998-1238, Circuit Court for  Anne Arundel  County).

OPINION: Petition for Writ of Certiorari dismissed. 

Martinez, Julio Cesar v. State 
Pet. Docket No. 30, September Term, 1999
 
COURT OF APPEALS OF MARYLAND
 
354 Md. 570; 731 A.2d 969; 1999 Md. LEXIS 387

 June  28, 1999, Decided

NOTICE: 

 [*1]  DECISION WITHOUT PUBLISHED OPINION 

PRIOR HISTORY: (No. K-98-1377A, Circuit Court for  Anne Arundel  County).

OPINION: Petition for Writ of Certiorari dismissed. 

KENNETH READ v. SUPERVISOR OF ASSESSMENTS OF ANNE ARUNDELCOUNTY 
No. 148, September Term, 1998
 
COURT OF APPEALS OF MARYLAND
 
354 Md. 383; 731 A.2d 868; 1999 Md. LEXIS 248

 May  13, 1999, Filed

   PRIOR HISTORY: [***1]

   Appeal from the Circuit Court for  Anne Arundel  County pursuant to certiorari to the Court of Special Appeals. Michael E. Loney, JUDGE.

DISPOSITION: JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AFFIRMED; COSTS TO BE PAID BY APPELLANT. 
CASE SUMMARY 

PROCEDURAL POSTURE:  The matter came before the court on appeal from the Circuit Court for Anne Arundel County (Maryland), pursuant to certiorari to the Court of Special Appeals. Appellant had unsuccessfully contested the imposition of rollback taxes with respect to appellant's withdrawal and conveyance of property subject to a Forest Conservation and Management Agreement.

OVERVIEW:  The court affirmed a judgment upholding the imposition of rollback taxes with respect to appellant's withdrawal and conveyance of property subject to a Forest Conservation and Management Agreement (FCMA). After contracts for the sale of two FCMA lots were finalized but before the lots were conveyed to the new owners without the FCMA obligations, appellant requested the Maryland Department of Natural Resources to withdraw the lots from the FCMA in order to avoid the imposition of a rollback tax. The court held that the intent of the original Conservation of Woodland Areas Act, in effect when appellant entered into his initial FCMA and during subsequent renewals, was to impose a rollback tax for property withdrawn for the purpose of conveyance, even if that conveyance was effected after the property technically was withdrawn. Under the interdependence and end result tests used in applying the step transaction doctrine, the transactions conducted by appellant were required to be stepped together and substantively considered one transaction: a withdrawal for the purposes of sale and conveyance. Accordingly, the rollback taxes were properly imposed.

OUTCOME:  The court affirmed a judgment upholding the imposition of rollback taxes with respect to appellant's withdrawal and conveyance of property subject to a Forest Conservation and Management Agreement because, under the step transaction doctrine, the transactions conducted by appellant were required to be stepped together and substantively considered one transaction: a withdrawal for the purposes of sale and conveyance.

CORE TERMS:  rollback, withdrawal, conveyance, conveyed, partnership, interdependence, binding commitment, stepped, withdrawn, subdivided, fruitless, forest conservation, conveyance of property, woodland, landowners, buyer, end result, developer, frozen, property subject, tax assessment, new owner, interdependent, supervisor, conveying, withdrew, listing, convey, change in ownership, first step

CORE CONCEPTS -  

Tax Law: State & Local Tax: Administration & Procedure
Administrative Law: Judicial Review: Standards of Review: General Rules
The Maryland Tax Court is an administrative agency. Md. Code Ann., Tax-Gen. § 13-532(a), provides that a final order of the Tax Court is subject to judicial review as provided in Md. Code Ann., State Govt' §§ 10-222 and 10-223, which govern the standard of review for decisions of administrative agencies.

Tax Law: State & Local Tax: Administration & Procedure
Administrative Law: Judicial Review: Standards of Review: General Rules
The standard of review for Maryland Tax Court decisions is generally the same as that for other administrative agencies. Under this standard, a reviewing court is under no statutory constraints in reversing a Tax Court order which is premised solely upon an erroneous conclusion of law. On the other hand, where the Tax Court's decision is based on a factual determination, and there is no error of law, the reviewing court may not reverse the Tax Court's order if substantial evidence of record supports the agency's decision. Furthermore, the reviewing court may not substitute its own judgment for that of the Tax Court if supported by substantial evidence.

Governments: Legislation: Construction & Interpretation
The cardinal rule of statutory interpretation is to ascertain and effectuate the intention of the legislature. Legislative intent must be sought in the first instance in the actual language of the statute. Where the statutory language is plain and free from ambiguity, and expresses a definite and simple meaning, courts do not normally look beyond the words of the statute itself to determine legislative intent. However, while the language of the statute is the primary source for determining legislative intention, the plain meaning rule of construction is not absolute; rather, the statute must be construed reasonably with reference to the purpose, aim, or policy of the enacting body. The court will look at the larger context, including the legislative purpose, within which statutory language appears. Construction of a statute which is unreasonable, illogical, unjust, or inconsistent with common sense should be avoided.

Governments: Legislation: Construction & Interpretation
When there is a lack of relevant legislative history for purposes of statutory construction, courts must rely substantially on the language of the statutes in the context of the goals and objectives they seek to achieve.

Governments: Legislation: Construction & Interpretation
Where a statute is plainly susceptible of more than one meaning and thus contains an ambiguity, courts consider not only the literal or usual meaning of the words, but their meaning and effect in light of the setting, the objectives and purpose of the enactment. The court may consider the consequences resulting from one meaning rather than another, and adopt that construction which avoids an illogical or unreasonable result, or one which is inconsistent with common sense.

Tax Law: Federal Tax Administration & Procedure: Tax Liabilities & Credits: Assessments (IRC secs. 6201-6207, 6501-6533)
Form will not prevail over substance in federal tax matters. That is, taxpayers cannot escape tax liability by disguising the true nature of transactions with mere formalisms.

Tax Law: State & Local Tax: Administration & Procedure
Under the step transaction doctrine, interrelated yet formally distinct steps in an integrated transaction may not be considered independently of the overall transaction.

Tax Law: State & Local Tax: Administration & Procedure
The step transaction doctrine may be applied in Maryland when one or more of the interdependence test, binding commitment test, or end result test is satisfied under the facts of each case.

Tax Law: State & Local Tax: Administration & Procedure
The strict binding commitment test used in applying the step transaction doctrine is satisfied when there is evidence that one step in a series of transactions is a "first step" and there is a binding commitment to take later steps. Often this test is applied when transactions occur over the course of several years.

Tax Law: State & Local Tax: Administration & Procedure
Under the interdependence test used in applying the step transaction doctrine, transactions will be stepped together if the steps are so interdependent upon each other that an objective interpretation of each step leads to the conclusion that the legal relationship of each individual step would have been fruitless without any of the other steps.

Tax Law: State & Local Tax: Administration & Procedure
Under the end result test used in applying the step transaction doctrine, separate transactions should be stepped together to become one amalgamated transaction if the steps were prearranged parts of a single transaction intended from the outset to be taken for the purpose of reaching the ultimate result.

COUNSEL: ARGUED BY Alan Hilliard Legum (Alan Hilliard Legum, P.A., on brief) of Annapolis, MD, FOR APPELLANT.
 
ARGUED BY William K. Hammond, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General of Maryland, on brief) all of Baltimore, Maryland, FOR APPELLEE.

JUDGES: ARGUED BEFORE Bell, C. J.; Eldridge, Rodowsky, Chasanow, Raker, Wilner, and Cathell, JJ. Opinion by Cathell, J.
 
OPINIONBY: CATHELL

OPINION: [**869] [*386] Opinion by Cathell, J.
 
This case presents two issues of first impression before this Court: the effect of the withdrawal and subsequent sale, closely related in time, of property subject to a Forest Conservation and Management Agreement and the applicability of the step transaction doctrine. Because the Tax Court properly [*387] upheld the imposition [**870] of a rollback tax with respect to appellant's withdrawal and conveyance of property subject to a Forest Conservation and Management Agreement, we shall affirm.

   I. Facts
 
In 1972, appellant Kenneth F. Read and his now deceased wife, Sondra D. Read, entered into a Forest Conservation and Management Agreement (FCMA or agreement) with the Department of Forests and Parks, which is a part of the Department of Natural Resources (DNR), n1 involving appellant's 34.5 acre tract of waterfront woodland area located in Anne Arundel County. This agreement provided that appellant's property tax assessment on the tract of land would be frozen during the term of the agreement, [***2] which was four years. n2 In return, appellant agreed to preserve his property in its wooded state under a woodland management plan developed by the Department of Natural Resources. Under the past and current provisions of the FCMA program, if FCMA property or a portion thereof is conveyed to another owner and the agreement is not assumed by the new owner, that portion of the conveyed property would be reassessed at market value and a rollback tax imposed. n3

n1 The Department of Forests and Parks came under the DNR by Legislative act in 1969. See 1969 Md. Laws, Chap. 154, § 8; Md. Code (1957, 1967 Repl. Vol., 1969 Cum. Supp.), Art. 66C, § 343. The current Forest and Park Service, a unit operating under the auspices of the DNR, was created by the combining of the Forest Service and the Park Service in 1982. See 1982 Md. Laws, Chap. 184; Md. Code (1973, 1997 Repl. Vol.), § 5- 202. We shall refer to the Department of Forests and Parks interchangeably as the Department of Natural Resources or DNR throughout this opinion.

n2 The original FCMA was entered into pursuant to Maryland Code (1957, 1966 Cum. Supp.), Article 66C, section 411 1/2, the predecessor to present Maryland Code (1985, 1994 Repl. Vol., 1998 Cum. Supp.), section 8-211 of the Tax-Property Article.

[***3] 

n3 Neither party contests the imposition of a rollback tax generally or the computation used in determining the amount of the rollback tax.

   [*388] Appellant renewed the agreement for a period of ten years on July 17, 1976. The FCMA was amended in 1980 to reflect the withdrawal of a one-acre home site from the agreement, thereby reducing the FCMA acreage to 33.5 acres. n4 In 1983, appellant renewed the FCMA for a twenty-year term beyond the previous expiration year of 1986 to 2006. Additionally, the acreage was reduced by 0.4 acres, the site of six existing cabins, which decreased the acreage subject to the FCMA to approximately 33 acres. n5

n4 This withdrawal is not in dispute in this case.

n5 This withdrawal likewise is not in dispute in this case.

   In 1986, appellant began subdividing an area covered by the agreement. The subdivision was approved in 1989. In 1988, section 8-211 was amended to "clarify" that an owner's removal[***4] of land from the FCMA prior to the expiration of the agreement would not enable the owner to avoid the rollback tax. See Md. Code (1985, 1994 Repl. Vol., 1998 Cum. Supp.), § 8-211(i)(1)(iv) of the Tax-Property Article. n6 Appellant and his wife received notification of this amendment in 1988 or 1989.

n6 All statutory references shall be to the Tax-Property Article unless otherwise indicated.

   In 1990, the FCMA again was amended to reflect a decrease in acreage because appellant had sold and conveyed a subdivided lot (lot three) from the property subject to the FCMA. A rollback tax was imposed pursuant to section 8-211(i)(1)(iii). Appellant paid the rollback tax. n7

n7 Appellant initially contested the State's right to impose a rollback tax on the 1989 conveyance on essentially the same argument presented in this case, as he claimed he had withdrawn this property prior to conveyance. The Tax Court found, however, that the lot had not been withdrawn but had been conveyed outright while under the FCMA. The Court of Special Appeals affirmed in an unreported opinion. That conveyance and imposition of the rollback tax is not at issue in this appeal.

[***5]

   [**871] Two other Cherrystone lots were listed for sale by a realtor in March 1991. Sales contracts were executed for lot four on [*389] December 30, 1991, and on lot two on February 7, 1992. After the contracts for sale were formalized, appellant's attorney drafted two letters to DNR, one on July 23, 1992, and the other on August 12, 1992, requesting DNR to withdraw lots two and four, respectively, from the FCMA. Thus, at the time of withdrawal, the sales contracts had been executed. Shortly thereafter, lot two was conveyed on July 30, 1992, for $385,000 and lot four was conveyed on November 13, 1992, for $500,000. The assessed value on the lots with the frozen assessment woodland basis would have been $2,668 for lot two and $3,289 for lot four. The FCMA subsequently was amended formally in January of 1993 to reflect appellant's withdrawal of three lots, including lots two and four. The Supervisor of Assessments of Anne Arundel County (Supervisor), appellee, imposed a rollback tax for two of the lots for the period 1972 to 1992, in the amount of $38,695.70 for lot two and $39,358.55 for lot four. This tax was imposed based upon the Supervisor's determination that the lots were sold prior[***6] to their withdrawal from the FCMA because they were sold before the agreement amending the FCMA was signed in January 1993.

   Appellant paid the taxes assessed but requested a refund. The Supervisor denied the refund request and affirmed the assessment. Appellant appealed to the Maryland Tax Court. There he claimed that the rollback tax should not have been assessed because he had withdrawn lots two and four before they were sold based on the letters submitted by his attorney in 1992; therefore, he alleged, the amendment to the FCMA should have been retroactive to the requests for withdrawal made in July and August 1992. Appellant also argued the 1988 amendment was inapplicable to his FCMA and an unconstitutional impairment of his contract. The Tax Court affirmed the Supervisor's denial in an October 28, 1994, order and found that the lots had been conveyed prior to the January 1993 amendment to the FCMA. Appellant then sought judicial review in the Circuit Court for Anne Arundel County. That court affirmed the Tax Court in a written opinion and order dated September 7, 1995.

   [*390] Appellant appealed the circuit court's judgment to the Court of Special Appeals. In an unreported opinion, [***7] that court held that appellant's removal of the lots from the FCMA was effective retroactively to the date of the letters requesting removal. Turning to the issue of whether the 1988 statutory amendment applied to appellant, the court stated that under the pre-1988 law, appellant could not be assessed the rollback taxes if the lots were withdrawn from the FCMA prior to sale. Because the Tax Court had not addressed the Contract Clause issue, the Court of Special Appeals reversed and remanded the case for factual determinations to be made regarding the application of the 1988 amendment to appellant's FCMA.

   Upon remand, the Tax Court found that the 1988 amendment to section 8-211 did not unjustifiably impair appellant's contract rights. Appellant again sought judicial review in the circuit court and that court affirmed. Appellant noted an appeal to the Court of Special Appeals and presented the following question:

    Did the 1988 amendment of Md. Code Ann., Tax-Prop. § 8-211(h) [sic] by the Maryland Legislature constitute an unconstitutional impairment of the Appellant's existing contractual rights under a 1983 Forest Conservation and Management Agreement with the Maryland Department[***8] of Natural Resources?
 
This Court issued a writ of certiorari on its own motion before the Court of Special Appeals heard arguments to consider the important issues raised by this appeal.

   [**872] We shall affirm the judgment of the circuit court, but for reasons articulated differently than those stated by the Tax Court, the circuit court, and proffered by the parties in their briefs. n8 We hold that the Contract Clause is not implicated [*391] here because, regardless of the effect of the 1988 amendment to section 8-211, withdrawals of property from the FCMA for the purpose of a conveyance to a new owner always have been subject under the statute to the rollback tax, whether the tax actually had been imposed or not. By applying the step transaction doctrine, the transactions by appellant in subdividing his property, listing the lots with a realtor, accepting sales contracts, withdrawing the property from the agreement, and conveying the property without transferring the FCMA obligations to the buyer all constituted essential and interdependent parts of the conveyances on July 30 and November 13, 1992. When appellant withdrew his property from the FCMA, he did so with the intent to convey the[***9] property, an act subject to the rollback tax under the statute. Accordingly, because the 1988 amendment had no effect on appellant's contract with the state, we need not address the constitutional issue raised by appellant.

n8 The findings the Tax Court made as to the contract impairment question, with respect to the appellant's expectations prior to the 1988 amendment, albeit stated somewhat differently, infra, are consistent with our opinion. The Tax Court found that appellant's obligations and expectations were not changed or impaired by the 1988 statutory amendment. We agree. We are holding that under the step transaction doctrine, the obligations appellant now complains of, the assessment of rollback taxes, pre-existed the 1988 amendment. Accordingly, there was no impairment. Additionally, no material facts are in dispute. In light of our acceptance of the step transaction doctrine's applicability to the undisputed facts of the case, further remand to the Tax Court for it to re-articulate its reasoning is unnecessary.

[***10]

   II. Discussion
 
A. Standard of Review
 
We begin by noting the appropriate standard of review. The Maryland Tax Court is an administrative agency. See Prince George's County v. Brown, 334 Md. 650, 658 n.1, 640 A.2d 1142, 1146 n.1 (1994). Maryland Code (1988, 1997 Repl. Vol.), section 13-532(a) of the Tax-General Article, provides that the final order of the Tax Court is subject to judicial review as provided in sections 10-222 and 10-223 of the State Government Article, which govern the standard of review for decisions of administrative agencies. The standard of review for Tax Court decisions are generally the same as that for other administrative agencies. Accordingly, [*392] under this standard, a reviewing court is under no statutory constraints in reversing a Tax Court order which is premised solely upon an erroneous conclusion of law. See, e.g., Supervisor of Assess. v. Carroll , 298 Md. 311, 469 A.2d 858 (1984); Comptroller v. Mandel Re-Election Com., 280 Md. 575, 374 A.2d 1130 (1977). On the other hand, where the Tax Court's decision is based on a factual determination, and there is no error of law, the reviewing court may not reverse the Tax Court's order if[***11] substantial evidence of record supports the agency's decision.

 
Ramsay, Scarlett & Co. v. Comptroller of the Treasury, 302 Md. 825, 834, 490 A.2d 1296, 1301 (1985). Furthermore, the reviewing court may not substitute its own judgment for that of the Tax Court if supported by substantial evidence. See CBS Inc. v. Comptroller of the Treasury, 319 Md. 687, 698, 575 A.2d 324, 329 (1990); Rouse-Fairwood Ltd. Partnership v. Supervisor of Assessments, 120 Md. App. 667, 685, 708 A.2d 19, 27 (1998); see also Comptroller of the Treasury v. Disclosure, Inc., 340 Md. 675, 682-83, 667 A.2d 910, 913 (1995); Director of Finance v. Charles Towers Partnership, 104 Md. App. 710, 716-17, 657 A.2d 808, 812 (1995), aff'd sub nom., Chesapeake & Potomac Tel. Co. v. Director of Finance , 343 Md. 567, 683 A.2d [**873] 512 (1996). There is no substantive dispute as to the facts of this case. The appeal before us, therefore, presents only a question of law in which we must interpret the provisions of the statute at issue at the time appellant entered into the FCMA, the step transaction doctrine, and the legal effect of appellant's multiple transactions in subdividing, listing, selling, [***12] withdrawing, and conveying lots two and four.

   B. Statutory Interpretation
 
Before we discuss the applicable rule of law, we turn first to the canons of statutory construction. We have said that "the cardinal rule of statutory interpretation is to ascertain and effectuate the intention of the legislature." Oaks v. Connors, 339 Md. 24, 35, 660 A.2d 423, 429 (1995). Legislative intent must be sought in the first instance in the actual language of the statute. Marriott Employees Fed. Credit [*393] Union v. Motor Vehicle Admin., 346 Md. 437, 444-45, 697 A.2d 455, 458 (1997); Stanford v. Maryland Police Training & Correctional Comm'n, 346 Md. 374, 380, 697 A.2d 424, 427 (1997) (quoting Tidewater v. Mayor of Havre de Grace, 337 Md. 338, 344, 653 A.2d 468, 472 (1995)); Coburn v. Coburn, 342 Md. 244, 256, 674 A.2d 951, 957 (1996); Romm v. Flax, 340 Md. 690, 693, 668 A.2d 1, 2 (1995); Oaks, 339 Md. at 35, 660 A.2d at 429; Mauzy v. Hornbeck, 285 Md. 84, 92, 400 A.2d 1091, 1096 (1979); Board of Supervisors v. Weiss, 217 Md. 133, 136, 141 A.2d 734, 736 (1958). Furthermore, where the statutory language is plain and free from ambiguity, and expresses a definite[***13] and simple meaning, courts do not normally look beyond the words of the statute itself to determine legislative intent. Marriott Employees, 346 Md. at 445, 697 A.2d at 458; Kaczorowski v. Mayor of Baltimore, 309 Md. 505, 515, 525 A.2d 628, 633 (1987); Hunt v. Montgomery County, 248 Md. 403, 414, 237 A.2d 35, 41 (1968).

    In Tracey v. Tracey, 328 Md. 380, 387, 614 A.2d 590, 594 (1992), however, this Court opined, in construing an alimony statute:
 
While the language of the statute is the primary source for determining legislative intention, the plain meaning rule of construction is not absolute; rather, the statute must be construed reasonably with reference to the purpose, aim, or policy of the enacting body. The Court will look at the larger context, including the legislative purpose, within which statutory language appears. Construction of a statute which is unreasonable, illogical, unjust, or inconsistent with common sense should be avoided. [Citations omitted.]

 
When there is a "lack of relevant legislative history, we must rely substantially on the language of the statutes in the context of the goals and objectives they seek to achieve." [***14] Subsequent Injury Fund v. Teneyck, 317 Md. 626, 632, 566 A.2d 94, 97 (1989) (citing Kaczorowski, 309 Md. at 513-16, 525 A.2d at 632-33). Finally,
 
where a statute is plainly susceptible of more than one meaning and thus contains an ambiguity, courts consider [*394] not only the literal or usual meaning of the words, but their meaning and effect in light of the setting, the objectives and purpose of the enactment. . . . The court . . . may consider the consequences resulting from one meaning rather than another, and adopt that construction which avoids an illogical or unreasonable result, or one which is inconsistent with common sense.
 
Tucker v. Fireman's Fund Ins. Co., 308 Md. 69, 75, 517 A.2d 730, 732 (1986) (citations omitted).

   The legislative history for the original statutory provision enacting the FCMA program is sparse. Nonetheless, the language of the statute, when read in conjunction with its broad purpose to protect the environmental and economic interests of the landowners, the State, and the people of Maryland makes clear that the Legislature did not intend land subject to an FCMA to be withdrawn and promptly conveyed [**874] to a new owner without either the transfer [***15]of the obligations of the agreement or the imposition of rollback taxes.

   The Conservation of Woodland Areas program was created by legislative enactment in 1963. The Act provided that the program was designed to encourage the people of this State to keep or develop lands for productive woodland purposes, to increase the income of the citizens of the State from the sale of timber, to prevent floods and the wasting of the State's soil, to provide open and wooded areas for the use and enjoyment of residents and sojourners in this State, and to promote the welfare and assets of the people of Maryland.
 
1963 Md. Laws, Chap. 884, § 1. The 1963 enactment provided a general scheme under which landowners could contract with the DNR for the tax assessment value of woodland areas to be frozen for the period of the contract in exchange for complying with a forest conservation and management program. See id. The statute also mandated that at the end of the period covered by the contract, or at the time part or all of the timber is harvested, or at the time part or all of the tract is conveyed to a new owner, whichever [*395] is the earliest date, there shall be a new valuation of the tract, [***16] or portion thereof.
 
Id. If only a portion of the tract were harvested or conveyed, the new valuation would be assessed proportionately. Id. The statute went on to provide that although a tract of land subject to the agreement could be conveyed without the new valuation made and rollback tax assessed, this was possible only if the FCMA were transferred to the buyer and the buyer assumed the obligations of the contract.  Id. The statute was silent as to withdrawals of property when there was no evidence of intent to convey the property. n9

n9 Section 8-211 was amended by 1994 Md. Laws, Chap. 435, to authorize the transfer of certain property under a FCMA, subject to restrictions, to the child of the owner without incurring a penalty for withdrawal. See § 8-211(k). This provision is not at issue in the case sub judice.

   As we read Chapter 884, notwithstanding that no other provisions specifically forbade the withdrawal of property from the FCMA, the Legislature clearly intended to deter[***17] the premature conveyance of property subject to the agreement by mandating that a rollback tax be assessed. The tax, however, would not be assessed if the property were conveyed subject to the agreement. By assessing the rollback tax to landowners who conveyed property subject to the agreement before the agreement terminated, the State provided an incentive for the landowners to uphold their end of the contract in protecting the woodland areas while receiving the cost-saving benefit of a frozen tax assessment. The Legislature permitted the conveyance of property subject to the agreement without the imposition of the rollback taxes if the contractual obligations were transferred to the buyer. Such provisions demonstrated the Legislature's intent to deter sale of property subject to an agreement without transferring that agreement's obligations to the buyer. Failure to abide by this resulted, and still results under present section 8-211 of the Tax-Property Article, in the imposition of a rollback tax. Therefore, any conveyance of property subject to the FCMA, free of its restrictions, results in the assessment of rollback taxes. 

   [*396] In 1988, the Legislature passed an amendment to address[***18] the perceived problem of landowners' attempts to subvert the imposition of rollback taxes by withdrawing property from the agreement and then conveying it. The amendment provided that a woodland area covered by the FCMA shall be reassessed, that is, a rollback tax imposed, any time the agreement is ended "at the request of the owner." 1988 Md. Laws, Chap. 179, § 1; § 8-211(i)(1)(iv). [**875]This provision, the Legislature explained, "clarified the rights and obligations of landowners having Forest Conservation and Management Agreements with the Department of Natural Resources." House State Economic and Environmental Affairs Committee, Bill Analysis for House Bill 209 (1988). Appellant argues that because this amendment was enacted subsequent to the 1986 renewal of his FCMA, the application of the amendment and accompanying rollback tax assessment violates the Contract Clause of the United States Constitution.

    Regardless of whether the 1988 amendment applies to appellant's agreement, his conveyances of lots two and four were subject to the rollback tax. This is true because even though appellant withdrew the lots from the agreement before the date of the actual conveyances, all of the[***19] transactions entered into by appellant before and after the withdrawal, when stepped together, were made in furtherance of the conveyances to the buyers without transferring appellant's obligations under the agreement. Therefore, for purposes of the assessment of the rollback tax and under the circumstances of this case, appellant's withdrawal, as we shall explain, was made with the purpose of completing already contracted-for sales and conveyances. Such transactions are, and have always been, subject to the rollback tax under the statute.

   C. The Step Transaction Doctrine
 
The Supreme Court and the federal circuits long have recognized the principle that form will not prevail over substance in federal tax matters. That is, taxpayers cannot escape tax liability by disguising the true nature of transactions [*397] with mere formalisms. In Minnesota Tea Co. v. Helvering, 302 U.S. 609, 612, 58 S. Ct. 393, 394, 82 L. Ed. 474 (1938), the issue before the Supreme Court was whether petitioner's delivery of cash to stockholders, who thereafter paid an equal sum of cash toward petitioner's debts, constituted a distribution pursuant to the Internal Revenue Code. The Court explained that the [***20] Code established that, in respect of any cash received and not "distributed," there was a taxable gain to petitioner. And, quite as plainly, payment of the debts by petitioner, if made directly by petitioner to the creditors, would not have been a distribution under the statute; for that contemplates a distribution to stockholders, and not payment to creditors. If, then, petitioner had followed the simple course of retaining in its own hands the sum here in question, and subsequently paying it directly to the creditors, it necessarily would result that liability of petitioner for a tax on the amount of gain could not be avoided. And, obviously, this is the effect of what was done, although circuitously.
 
302 U.S. at 612-13, 58 S. Ct. at 394, 82 L. Ed. 474. The Court went on to hold that even though petitioner took a "roundabout process," it achieved the same benefit it would have received had it retained the amount of the distribution and applied that sum to reduce its indebtedness.  Id. at 613, 58 S. Ct. at 395, 82 L. Ed. 474. The Court concluded that "payment of indebtedness, and not distribution of dividends, was, from the beginning, the aim of the understanding with the stockholders[***21] and was the end accomplished by carrying that understanding into effect. A given result at the end of a straight path is not made a different result because reached by following a devious path." Id. (emphasis added). See also Gregory v. Helvering, 293 U.S. 465, 469, 470, 55 S. Ct. 266, 267, 268, 79 L. Ed. 596 (1935) (noting that although "the legal right of a taxpayer to decrease the amount of what otherwise would be his taxes, or altogether avoid them, by means which the law permits, cannot be doubted," allowing sham transactions to escape tax liability would "exalt artifice above reality.").

   [*398] The Court later clarified this axiom in Commissioner v. Court Holding Co., 324 U.S. 331, 334, [**876] 65 S. Ct. 707, 708, 89 L. Ed. 981 (1945):
 
The incidence of taxation depends upon the substance of a transaction. The tax consequences which arise from gains from a sale of property are not finally to be determined solely by the means employed to transfer legal title. Rather, the transaction must be viewed as a whole, and each step, from the commencement of negotiations to the consummation of the sale, is relevant. A sale by one person cannot be transformed for tax purposes[***22] into a sale by another by using the latter as a conduit through which to pass title. To permit the true nature of a transaction to be disguised by mere formalisms, which exist solely to alter tax liabilities, would seriously impair the effective administration of the tax policies of Congress. [Emphasis added.] [Footnote omitted.]

   The "step transaction doctrine," as the principle later was to become known, was specifically recognized by the Supreme Court in Commissioner v. Clark, 489 U.S. 726, 109 S. Ct. 1455, 103 L. Ed. 2d 753 (1989). In that case the Court examined a substantial cash payment made in connection with a stock-for-stock exchange to determine whether it had the effect of a distribution of a dividend and was taxable as ordinary income or whether it was subject to capital gains. The Court reviewed the language and history of the Internal Revenue Code provision at issue, applied "a commonsense understanding of the economic substance of the transaction," and declared that a determination whether the exchange had the effect of distributing a dividend should be resolved "by examining the effect of the exchange as a whole." 489 U.S. at 738, 109 S. Ct. at 1462, 103 L. [***23] Ed. 2d 753. Going on, the Court stated:

   Our reading of the statute as requiring that the transaction be treated as a unified whole is reinforced by the well-established "step-transaction" doctrine, a doctrine that the Government has applied in related contexts, see, e.g., Rev. Rul. 75-447, 1975-2 Cum. Bull. 113, and that we have expressly sanctioned, see Minnesota Tea Co. v. Helvering, [*399] 302 U.S. 609, 613, 58 S. Ct. 393, 394, 82 L. Ed. 474 (1938); Commissioner v. Court Holding Co., 324 U.S. 331, 334, 65 S. Ct. 707, 708, 89 L. Ed. 981 (1945). Under this doctrine, interrelated yet formally distinct steps in an integrated transaction may not be considered independently of the overall transaction. By thus "linking together all interdependent steps with legal or business significance, rather than taking them in isolation," federal tax liability may be based "on a realistic view of the entire transaction." 1 B. Bittker, Federal Taxation of Income, Estates and Gifts P 4.3.5, p. 4-52 (1981).
 
Id. at 738, 109 S. Ct. at 1462-63, 103 L. Ed. 2d 753.
 
The federal circuit courts of appeal have explicitly recognized and applied the step transaction doctrine, recognizing three[***24] tests used to determine whether transactions should be "stepped" together and considered not as isolated incidents, but as components in an overall plan. See, e.g., Kornfeld v. Commissioner, 137 F.3d 1231 (10th Cir.), cert. denied,     U.S.    , 119 S. Ct. 171, 142 L. Ed. 2d 139 (1998); G.M. Trading Corp. v. Commissioner, 121 F.3d 977 (5th Cir. 1997); Greene v. United States, 13 F.3d 577 (2d Cir. 1994); Associated Wholesale Grocers, Inc. v. United States, 927 F.2d 1517 (10th Cir. 1991); Brown v. United States, 782 F.2d 559 (6th Cir. 1986); Security Indus. Ins. Co. v. United States, 702 F.2d 1234 (5th Cir. 1983); McDonald's Restaurants v. Commissioner, 688 F.2d 520 (7th Cir. 1982); Redwing Carriers, Inc. v. Tomlinson, 399 F.2d 652 (5th Cir. 1968); Penrod v. Commissioner, 88 T.C. 1415 (1987); King Enters., Inc. v. United States, 189 Ct. Cl. 466, 418 F.2d 511 (Ct. Cl. 1969). In Associated Wholesale Grocers, 927 F.2d at 1522, the Court of Appeals for the Tenth Circuit identified the "end result," "interdependence," and "binding commitment" [**877] tests. Although the end result and interdependence tests are the most frequently used, see id.,[***25] federal courts have not required the taxpayer to meet all three nor have many courts applied all three. See Kornfeld, 137 F.3d at 1235; Greene, 13 F.3d at 583- 85; Associated Wholesale Grocers, 927 F.2d at 1523. Nonetheless, although there are distinct differences between [*400] each of the step transaction tests, "each is faithful to the central purpose of the step transaction doctrine; that is, to assure that tax consequences turn on the substance of a transaction rather than on its form." King Enters., 418 F.2d at 517.

   The narrowest and most seldom applied test, the binding commitment test, see Kornfeld, 137 F.3d at 1235; Associate Wholesale Grocers, 927 F.2d at 1522 n.6, provides that a transaction will be stepped together if, at the first step of the transaction, a binding commitment was entered into to undertake later steps. See Penrod, 88 T.C. at 1429. The test is of limited applicability because it appears to have been formulated to address a transaction that spanned several tax years. See McDonald's Restaurants, 688 F.2d at 525. Another court has described the Supreme Court's application of this test as limited to the circumstances of that case and[***26] further noted the Court gave no indication that it intended the binding commitment test to be "the touchstone of the step transaction doctrine in tax law." King Enters., 418 F.2d at 518 (discussing Commissioner v. Gordon, 391 U.S. 83, 88 S. Ct. 1517, 20 L. Ed. 2d 448 (1968)).

   The interdependence test, a variation on the end result test, focuses on whether the steps in the transaction are so interdependent that "the legal relations created by one transaction would have been fruitless without a completion of the series." Greene, 13 F.3d at 584; Associated Wholesale Grocers, 927 F.2d at 1523; Penrod, 88 T.C. at 1430. The interdependence test concentrates on the relationship between all of the steps.  Associated Wholesale Grocers, 927 F.2d at 1523; Penrod, 88 T.C. at 1430. In applying this test, courts must look at whether each individual step had some "'independent significance or whether they had meaning only as part of the larger transaction.'" Greene, 13 F.3d at 584 (quoting Penrod, 88 T.C. at 1430).

   The end result test amalgamates purportedly separate transactions when it appears they actually were prearranged parts of "'a single transaction intended [***27]from the [*401] outset to be taken for the purpose of reaching the ultimate result.'" Associated Wholesale Grocers, 927 F.2d at 1523 (quoting King Enters., 418 F.2d at 516). This test is based upon the initial intent of the parties.  Penrod, 88 T.C. at 1430. What is more, even though the initial arrangement between the parties need not be legally binding, there must be some "showing of an informal agreement or understanding." Greene, 13 F.3d at 583.

   Several state courts have adopted the step transaction doctrine. n10 See, e.g., Penner v. County of Santa Barbara, 37 Cal. App. 4th 1672, 44 Cal. Rptr. 2d 606 (1995); McMillin-BCED/Miramar Ranch North v. County of San Diego, 31 Cal. App. 4th 545, 37 Cal. Rptr. 2d 472 (1995); Shuwa Invs. Corp. v. County of Los Angeles, 1 Cal. App. 4th 1635, 2 Cal. Rptr. 2d 783 (1991); Noddings Inv. Group, Inc. v. Capstar Communications, Inc.,     A.2d    , 1999 Del. Ch. LEXIS 56, 1999 WL 182568 (Del. Ch. 1999); Koch v. Commissioner, 33 Mass. App. Ct. 707, 605 N.E.2d 301 (1992), rev'd on other grounds, 416 Mass. 540, 624 N.E.2d 91 (1993); Lehmann v. Upper Cape Cod Reg'l Vocational Technical School Dist. Comm., 17 Mass. App. Ct. 283, 457 N.E.2d[***28] 666 (1983); Hutton v. Johnson, 956 S.W.2d 484 (Tenn. 1997). Notably, many of these cases adopted and applied the step transaction doctrine in matters [**878] other than income tax or corporate mergers. See, e.g., Lehmann, 17 Mass. App. Ct. at 284, 457 N.E.2d at 668 (applying the step transaction doctrine to hold that a school district improperly reduced a teacher's salary); Hutton, 956 S.W.2d at 489 (evaluating whether two transactions involving the purchase of jet aircraft should be considered one stepped together transaction for purposes of personal property taxation).

n10 The doctrine was recognized by the Court of Special Appeals in Hercules, Inc. v. Comptroller of the Treasury, 117 Md. App. 29, 54, 699 A.2d 461, 472 (1997), rev'd on other grounds,  351 Md. 101, 716 A.2d 276 (1998).

   The California Court of Appeal in McMillin-BCED, 31 Cal. App. 4th at 550, 37 Cal. Rptr. 2d at 474, applied the step transaction doctrine in a property tax matter to hold a series [*402] of transactions had established[***29] that a 100% change in ownership occurred in favor of McMillin and, therefore, it was not entitled to a refund of paid property taxes. In McMillin- BCED, BCE Development Properties, Inc. (Properties), a wholly-owned subsidiary of BCE Development, Inc. (Development), agreed in May 1989 to sell to McMillin/Scipps Ranch, a limited partnership for which the sole general partner was McMillin Communities, Inc. (McMillin), the subject 1200 acres of land for $100 million. The agreement fell through, however, because McMillin/Scipps Ranch could not secure financing and did not want to incur liabilities arising from any predevelopment activities on the land. The court described the subsequent steps in the transactions:

   Development then decided to develop the land with the assistance of an experienced residential developer. The following transactions ensued: As of January 26, 1990, title to the land was still held by Development. On that date, Development and Properties formed (but did not fund) a general partnership called Scripps Ranch. The partnership agreement required Development to contribute 30 percent tenancy-in-common interest in the land and Properties to contribute 70 percent[***30] tenancy-in-common interest in the land to the newly-formed partnership, as initial capital contributions. Profits and losses were to be shared in the same proportions. Four days later, Development conveyed a 70 percent tenancy-in-common interest in the land to Properties. For purposes of discussion, we shall refer to the tenancy-in-common transfer between Development and Properties as Step 1.

   On February 7, 1990, Development and Properties, as tenants-in-common, refinanced the land for $50 million. They executed a promissory note and deeds of trust in favor of their lender, Mortgage Development Corporation (MDC), which was, like Development, a wholly-owned subsidiary of BCE Canada. MDC immediately assigned the note to yet another wholly-owned subsidiary of BCE Canada, BCED Pacific, Inc. In a declaration prepared by Jeffrey H. Wagner, the director of taxation of the BCED corporations, [*403] submitted in support of the McMillin-BCED opening trial brief, the purpose for this loan was explained: "(a) to strengthen and improve [Development's] interest in the Land by becoming a secured lender and (b) to reduce the amount of equity in the Land a future developer/investor would be required to[***31] 'buy into.'" We shall refer to this transaction, the refinancing of the land by Development and Properties as tenants-in-common, as Step 2.

   Step 3 also took place on February 7, 1990, when Development and Properties deeded their respective interests in the land to the Scripps Ranch partnership, as required by the partnership agreement. In other words, they exchanged their 30-70 percent interests in the land for general partnership interests which would own the land. This structure would provide flexibility to negotiate a particular financial deal with a developer. The Scripps Ranch partnership assumed the loan on a non-recourse basis.

   Development then carried out negotiations with McMillin, as well as a competing developer, Davidson Communities, Inc. (Davidson), to establish terms for a partnership agreement. On February 9, [**879] 1990, the Scripps Ranch partnership and McMillin entered into a contribution agreement establishing the terms and conditions for McMillin's admission as a partner and Development's withdrawal from the partnership. Development agreed to guarantee the performance of all of Properties' present and future obligations to McMillin under the partnership agreement. McMillin[***32] agreed to contribute $5 million cash to the partnership. Properties' capital account was valued at $30 million. Development assigned its 30 percent partnership interest to, and withdrew from, the partnership.

   The effective date of the first amended and restated agreement of general partnership was February 12, 1990. Step 4 thus took place when McMillin bought into the appellant partnership. Two days later, the partnership name was changed from Scripps Ranch to McMillin-BCED. Pursuant to this agreement, McMillin now held a 14 percent interest in the capital of the partnership, a 30 percent [*404]interest in the profits, and a 50 percent management interest.
 
31 Cal. App. 4th at 551-52, 37 Cal. Rptr. 2d at 475 (footnote omitted) (alteration in original). The county assessor later reassessed the property, claiming a 100% change in ownership had occurred on February 12, 1990.

   Before determining whether the four steps should have been stepped together, that is, treated as one transaction that transferred 100% ownership subject to reassessment, the court decided that only one of the three tests need be satisfied in order to apply the step transaction doctrine. The court explained that an earlier[***33] California case involving nearly the same issue and applying the step transaction doctrine, Shuwa Investments Corp., 1 Cal. App. 4th 1635, 2 Cal. Rptr. 2d 783, did not address whether all three tests were required or the satisfaction of only one or two of the tests was sufficient. McMillin-BCED, 31 Cal. App. 4th at 555, 37 Cal. Rptr. 2d at 477. The McMillin court then examined comments by the courts in King Enterprises and Associated Wholesale Grocers. In King Enterprises, as we noted above, that court stated that although there are differences in each of the step transaction tests, each test "is faithful to the central purpose of the step transaction doctrine." McMillin-BCED, 31 Cal. App. 4th at 555, 37 Cal. Rptr. 2d at 477 (quoting King Enters., 418 F.2d at 517). The Court of Appeal for the Tenth Circuit in Associated Wholesale Grocers had found the satisfaction of only one of the tests, the interdependence test, adequate to apply the step transaction doctrine.  McMillin-BCED, 31 Cal. App. 4th at 555, 37 Cal. Rptr. 2d at 477-78. Accordingly, the court concluded, "the step transaction doctrine may be applied upon an adequate showing that one[***34] or more of the applicable tests is satisfied by the facts presented." Id. at 556, 37 Cal. Rptr. 2d at 478.

   The court next analyzed the facts under each of the tests. The facts of that case did not satisfy either the end result and binding commitment tests. First, both the tests seemed to require the same parties to pursue the same or related intent throughout the steps of the transaction. There was no evidence [*405] that McMillin, which joined the partnership in step four, desired the same end result or had the same ultimate purpose and intent in the transaction as the partnership formed by Development and Properties. Furthermore, Development and Properties had independent, legitimate business purposes for each of the transactions in steps one through three of protecting their financial interests in the property. Finally, the transaction was not stretched out over a period of years, which seemed implicitly required by the Tenth Circuit in Associated Wholesale Grocers, 927 F.2d at 1522-23 n.6, to apply the binding commitment test.

   The court then turned to the interdependence test. Applying findings made by the trial court, the court concluded that all [**880] of the steps were implemented[***35] with the goal of McMillin's development of the land:

   The trial court pointed out at trial that it was significant that in a series of transactions closely related in time, McMillin as an outsider came in to assume all of the entitlement of one of the partners, at specified percentages of capital and profit. The profit was directly related to the percentage of ownership of the third party's predecessor, Development. The way in which this was accomplished was that Development assigned its percentage interest to the partnership, and McMillin then made a $5 million capital contribution and obtained a 14 percent capital interest in the partnership, along with a 30 percent profit interest and a 50 percent management interest. The history of this transaction includes the failed sale to McMillin at an earlier time. A reasonable inference may be drawn that McMillin's goals would not have been accomplished as a developer without the transfer of title from Development, through Properties, to the Scripps Ranch partnership, and ultimately to the appellant McMillin-BCED partnership. Even if Development and Properties had internal corporate reasons as affiliates to transfer title among themselves, [***36]refinance the property, and create a development partnership, those steps would essentially have been fruitless had they not been able to find a developer to join in the project. These steps had [*406] the necessary interdependence such that, in substance, a change of ownership occurred.
 
McMillin-BCED, 31 Cal. App. 4th at 560-61, 37 Cal. Rptr. 2d at 481. Accordingly, because of the close relationship between all of the steps and because each of the steps essentially would have been fruitless had the ultimate goal not been achieved, the court held that the interdependence test applied and the transactions were correctly stepped together for the purpose of the property tax reassessment.  Id. at 562, 37 Cal. Rptr. 2d at 482.

   III. Analysis
 
Before applying the facts of this case to each of the step transaction tests, we shall address briefly whether all or only one of the tests must be satisfied in order to apply the step transaction doctrine. Like the California Court of Appeal, we believe each test addresses different concerns and situations, but each also remains "'faithful to the central purpose of the step transaction doctrine.'" Id. at 555, 37 Cal. Rptr. 2d at 477 (quoting[***37] King Enters., 418 F.2d at 517). For example, the interdependence test is useful in determining whether a series of transactions should be considered as one stepped-together transaction when each step, considered individually, would be illogical or "fruitless." This test may not be adequate when there are very few individual transactions or those transactions are spread over the course of many years. Under the binding commitment test, however, courts can uncover the true intent of the parties by looking at a binding commitment entered by the parties to achieve a certain result. Likewise, the end result test successfully overcomes the guise of seemingly separate transactions when the evidence reveals the true intent, goal, or desired result of the taxpayer. Accordingly, each test serves its purpose of evaluating otherwise separate transactions, taking into account the intent and goals of the parties, to determine whether all of the transactions should be considered one. For this Court to hold that all three tests must be met or require one to be met over the others would be to abandon the principles behind the [*407] step transaction doctrine, thus allowing some taxpayers to subvert their[***38] tax obligations. Given the various situations covered by the tests and the tests' adherence to the principals of the step transaction doctrine, we hold that the doctrine may be applied when one or more of the tests is satisfied under the facts of each case.

   We first examine the facts of the case sub judice under the binding commitment test. As we have mentioned, this strict [**881] test is satisfied when there is evidence that one step in a series of transactions is a "first step" and there is a binding commitment to take later steps. Often this test is applied when transactions occur over the course of several years. Although the transactions in this case took place over several years from the application for the subdivision in 1986 to the conveyances of lots two and four in 1992, the binding commitment test is not satisfied under the facts of this case. There was no evidence of a binding commitment by appellant to withdraw and convey his property to a new owner when he subdivided, which was the first step in this series of transactions. Even though we recognize that the subdivision plat referred to a "developer" and believe appellant's obvious intent at that time was eventually to sell[***39] the subdivided parcels, there was no obligation for him to do so. Accordingly, the facts do not satisfy the binding commitment test.
 
The facts of this case, however, satisfy the interdependence test. Under this test, transactions will be stepped together if the steps are so interdependent upon each other that an objective interpretation of each step leads to the conclusion that the legal relationship of each individual step would have been fruitless without any of the other steps. The purpose of the first step, the subdivision, is patent: landowners generally subdivide their property for later sale. Appellant testified to this intent before the Tax Court when he said that he renewed his FCMA agreement in 1986 because he "wanted a twenty year contract, because the original provision, our plan, was this subsequent development would be our retirement." Although it is possible for a property owner to subdivide his or her property without ever intending to sell the subdivided lots, [*408]it seems, at least under the circumstances of this case with such valuable waterfront property, highly improbable that appellant did not intend to sell the subdivided lots.
 
   The subsequent steps in this[***40] series of transactions likewise would have been fruitless if not for each of the other steps. In 1991, appellant exclusively listed lots two and four "to sell" with a real estate agent. It would be spurious to argue that the appellant did not intend to sell the lots when he listed them for sale. This step of listing the lots for sale would have been fruitless without the prior and subsequent steps.

   Appellants next step was to execute the sales contracts on December 30, 1991, and February 7, 1992, for lots four and two, respectively. Clearly, the execution of a binding sales contract without the contemplation of selling the lots would be an inherently contradictory action. We can think of no reasonable explanation for the execution of a contract for the sale of land other than to facilitate the conveyance of that land.

   Next, appellant drafted two letters on July 23, 1992, and August 12, 1992, six months after the execution of the binding sales contracts, to DNR requesting that lots two and four, respectively, be withdrawn. Appellant's withdrawal of the property at this time cannot be viewed for any purpose other than to convey the lots to the buyers with whom the sales contracts already[***41] had been finalized. We doubt that appellant, after subdividing, listing, and executing binding contracts for the sale of the lots withdrew his property from the beneficial tax structure just to look at it; it is obvious he intended to finalize the sale by conveying the subdivided lots immediately after the withdrawal from the program which limited their development. Appellant in fact conveyed lot two on July 30, 1992, just seven days after the request for the withdrawal, for $385,000, and conveyed lot four on November 13, 1992, three months after the withdrawal, for $500,000. Each of the steps we have outlined were interdependent of the others and would have been pointless without the other steps and the ultimate conveyance of the subject property. Accordingly, [*409]the interdependence test is satisfied under the facts of this case.

   [**882] The facts in the case before us also clearly satisfy the end result test. Under the end result test, separate transactions should be stepped together to become one amalgamated transaction if the steps were prearranged parts of "'a single transaction intended from the outset to be taken for the purpose of reaching the ultimate result.'" Associated Wholesale [***42]  Grocers, 927 F.2d at 1523 (quoting King Enters. Inc., 418 F.2d at 516). In applying the interdependence test, supra, we specified and evaluated each step appellant took with regard to lots two and four. Those steps do not bear repeating because their effect is obvious; appellant intended, from the subdivision to the actual conveyances, to sell the subject properties. Each step, therefore, was part of that prearranged plan to convey the property.

   Even if it could be argued that when appellant first subdivided the lots he did not know he would be required to pay rollback taxes if he withdrew the property from the agreement for purposes of a conveyance, appellant became poignantly aware of that consequence when he conveyed another lot from that subdivided parcel. Appellant, prior to the transactions at issue in the case sub judice, directly conveyed lot three, which also was subject to the FCMA. He was assessed and paid the rollback tax. He was, accordingly, fully aware of the tax consequences under the agreement when property subject to it was sold. With that knowledge, appellant, in 1991, listed lots two and four, entered into the sales contracts, and took the other steps[***43] detailed above. Thus, after being required to pay the rollback tax from the conveyance of lot three, appellant apparently sought a perceived loophole that would allow him to avoid his tax liability and asked that lots two and four be withdrawn prior to the finalization of the already pending sale of the two lots. This clearly was done in an effort to avoid the tax appellant believed (or hoped) was only associated with an outright conveyance.

   [*410] We believe the facts of this case demonstrate that the steps appellant took in listing, executing a contract for sale, and withdrawing the property were all steps made in hopes of achieving the end result of conveying the lots in a manner that would avoid the rollback tax. Simply stated, the procedure was a plan to avoid paying taxes. Because of the close relationship of each of the steps, appellant's knowledge that an outright conveyance would result in an rollback tax, the close proximity in time between the transactions, and the ultimate result of appellant's conveyance of property without the transfer of the FCMA obligations, and all of the reasons aforementioned, we conclude that the interdependence and the end result tests have been satisfied. [***44] Accordingly, all of the transactions should be stepped together and considered conveyances of property subject to the FCMA. As we have indicated, such transfers of property for the purpose of sale always have been subject to the rollback tax.

   The Tax Court's reasoning is entirely consistent with our holding. In its written opinion, that entity stated in relevant part:
 
In entering the FCMA, the State was placed in a position of having property protected from tree harvesting and other development during the period of time the agreement was in effect. The primary benefit received by the property owner came from the significant tax savings that an owner would enjoy by having property enrolled in this program. [Appellant] . . . saved thousands of dollars that he would have otherwise had to pay in real estate taxes . . . due to the benefits he . . . received while the property was in this program.

   The change in the law that was made in July of 1988 did not in any way impair or infringe upon the primary purposes for both the State and the property owner in relation to the agreement. . . . The primary purpose for entering into the agreement in the first place was in no way affected. [***45]

   [**883] . . . The change in the State law that restricts a party to gains it reasonably expected from the contract does not necessarily constitute a substantial impairment. . . .

   [*411] . . . The law previously set forth that if there was a change in ownership of the property then there was to be a reassessment of the taxes that otherwise would have to be paid in connection with this property. This clearly indicates the intent of the Legislature that if there was a change in ownership, there should be some economic payback to the State.

   In affirming the Tax Court, the circuit court, consistent with our reasoning, opined in relevant part:
 
The Maryland Tax Court correctly found that the primary benefit of the agreement to [appellant] was the frozen tax assessment on his property. Despite the changes to the agreement implemented by the 1988 amendment, [appellant] still received the frozen tax assessment. In order to receive the benefits that he reasonably expected from the FCMA he simply had to follow the agreement that he entered. It was only when he breached the agreement that [appellant] suffered rollback taxes.
 
The reasoning of the circuit court and the agency, although not couched [***46]in "step transaction" language, is entirely consistent with our holding.

   What appellant attempted in the series of transactions, with some poor grace, we might add, was to attempt to enjoy the benefits of the agreement but to ignore the burdens he assumed when he entered into the agreement. These are the types of agreements that serve the interest of owners and the State alike. They do not cause deprivation of property value interests; rather, they accommodate such interests. These agreements, and others of similar intent, are the balance that property owners, who recognize their obligations in a property tax system, seek out to insure a continuation of ownership while property values increase to their benefit. We will not permit such appropriate devices to be emasculated by those who have received the benefits and then seek to avoid the burdens by declaring loopholes that have never, under the circumstances here extant, existed.

   [*412] IV. Conclusion
 
The intent of the original Conservation of Woodland Areas Act, in effect when appellant entered into his initial FCMA and during the subsequent renewals, was to impose a rollback tax for property withdrawn for the purpose of conveyance, [***47]even if that conveyance was effected after the property technically was withdrawn. Under the interdependence and end result tests, the series of transactions conducted by appellant should be stepped together and substantively considered one transaction: a withdrawal for the purposes of sale and conveyance. Accordingly, the rollback taxes imposed by appellee and affirmed both by the Tax Court and circuit court were not in error.
 
JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AFFIRMED; COSTS TO BE PAID BY APPELLANT. 

JAMES W. GRAYSON v. STATE OF MARYLAND, MICHAEL JAMES JACKSONv. STATE OF MARYLAND 
Nos. 25 & 26, September Term, 1997
 
COURT OF APPEALS OF MARYLAND
 
354 Md. 1; 728 A.2d 1280; 1999 Md. LEXIS 241

 May  7, 1999, Filed

   PRIOR HISTORY: [***1] Certiorari to the Court of Special Appeals (Circuit Court for  Anne Arundel  County). Lawrence H. Rushworth, JUDGE.

DISPOSITION: IN NO. 25, THE JUDGMENT OF THE COURT OF SPECIAL APPEALS IS REVERSED, AND THE CASE IS REMANDED TO THAT COURT WITH DIRECTIONS TO REVERSE THE JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE CITY AND REMAND THE CASE TO THE CIRCUIT COURT FOR BALTIMORE CITY FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID BY THE RESPONDENT. IN NO. 26, THE JUDGMENT OF THE COURT OF SPECIAL APPEALS IS REVERSED AND THE CASE IS REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. COSTS IN THIS COURT TO BE PAID BY THE RESPONDENT. COSTS IN THE COURT OF SPECIAL APPEALS TO ABIDE THE RESULT. 
CASE SUMMARY 

PROCEDURAL POSTURE:  Petitioners sought review of two judgments from the Court of Special Appeals, the Circuit Court for Anne Arundel County (Maryland), which determined that their petitions for relief were not allowable under the Post Conviction Procedure Act, Md. Ann. Code art. 27, § 645(a)(2).

OVERVIEW:  The court reversed an appellate decision holding that a petition for relief under the Post Conviction Procedure Act, Md. Ann. Code art. 27, § 645A, was not allowable. In particular, Md. R. 1-203 and Md. Ann. Code art. 1, § 36 gave petitioner until Monday October 2, 1995, to file his petition. In the second case, the appellate court erred by failing to exercise its discretion to determine whether to grant leave to appeal. Specifically, when the circuit court reopened a post conviction proceeding, the losing party was entitled to file an application for leave to appeal to the appellate court. In such a case, the appellate court had to exercise its discretion to determine whether or not to grant leave to appeal. Finally, the limitation upon the court's certiorari jurisdiction in Md. Code Ann., Cts. & Jud. Proc. § 12-202 did not apply because the appellate decisions at issue did not simply amount to discretionary denials of leave to appeal.

OUTCOME:  The court reversed the appellate decisions and remanded the first case to the circuit court because the petition for post conviction relief was timely filed and allowable under the Post Conviction Procedure Act. The court remanded the second case to the appellate court to exercise its discretion to determine whether to grant leave to petitioner to appeal the denial of post conviction relief.

CORE TERMS:  leave to appeal, Post Conviction Procedure Act, allowable, writ of certiorari, pro se, subtitle, effective date, denied relief, retroactively, reopen, postconviction, reopening, jurisdiction to review, discretionary, imposition of sentence, sentences imposed, post-conviction, intermediate, challenging, initiated, sentence, wording, holiday, Maryland Rules, entitled to file, original trial, direct appeal, state prison, entertain, asserting

CORE CONCEPTS -  

Criminal Law & Procedure: Postconviction Proceedings
Criminal Law & Procedure: Appeals: Right to Appeal
See Md. Ann. Code art. 27, § 645A(a)(2).

Criminal Law & Procedure: Appeals: Reviewability
See Md. Code Ann., Cts. & Jud. Proc. § 12-202.

Criminal Law & Procedure: Appeals: Reviewability
The limitation upon the Court of Appeals of Maryland set forth in Md. Code Ann., Cts. & Jud. Proc. § 12-202 relates only to the action of the Court of Special Appeals in granting or denying an application for leave to appeal. Except for the nonreviewability of that specific action, the Court of Appeals of Maryland has jurisdiction over the type of cases listed in § 12-202 to the extent that such jurisdiction is conferred by Md. Code Ann., Cts. & Jud. Proc. § 12-201 or other statutory provisions.

Criminal Law & Procedure: Postconviction Proceedings
See Md. R. 1-203(a).

Criminal Law & Procedure: Postconviction Proceedings
Criminal Law & Procedure: Appeals: Right to Appeal
Md. Ann. Code art. 27, § 645(a)(2)(iii) specifically authorizes a circuit court to reopen a post conviction proceeding if the circuit court decides that such action is in the interests of justice. When the circuit court does reopen a post conviction proceeding, and then grants or denies post conviction relief, the losing party is entitled to file an application for leave to appeal to the Court of Special Appeals. In such a case, the Court of Special Appeals must exercise its discretion to determine whether or not to grant leave to appeal.

COUNSEL: ARGUED BY Julia Doyle Bernhardt, Assistant Public Defender (Stephen E. Harris, Public Defender, on brief) of Baltimore, MD. FOR PETITIONER.
 
ARGUED BY Ann N. Bosse, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General, on brief) of Baltimore, MD. FOR RESPONDENT.

JUDGES: ARGUED BEFORE Bell, C.J.; Eldridge, Rodowsky, Chasanow, Raker, and Karwacki, Robert L. (retired, specially assigned) JJ. Opinion by Eldridge, J.

OPINIONBY: ELDRIDGE
 
OPINION: [*3] [**1281]
 
Opinion by Eldridge, J.
 
We granted petitions for writs of certiorari in these two cases to decide issues relating to the Post Conviction Procedure Act, Maryland Code (1957, 1996 Repl. Vol., 1998 Supp.), Art. 27, § 645A. The questions raised in the petitions and briefs include the following: (1) whether this Court has jurisdiction to review the decisions of the Court of Special Appeals in these two cases; [***2] (2) whether petitioner Grayson's petition for post conviction relief should be reviewed under the provisions of the Post Conviction Procedure Act that were in effect before the 1995 amendments, Code (1957, 1987 Repl. Vol., 1995 Supp.), Art. 27, § 645A, as interpreted by this Court in Mason v. State, 309 Md. 215, 522 A.2d 1344 (1987); (3) whether the circuit court reopened a prior post conviction proceeding when reviewing petitioner Jackson's most recent petition for post conviction relief; and (4) whether the circuit court's decision regarding Jackson's petition can be reviewed by the Court of Special Appeals. We shall hold that this Court has jurisdiction, shall reverse the Court of Special Appeals in both cases, shall direct that Grayson's case be remanded to the circuit court, and shall direct that Jackson's case be further considered by the Court of Special Appeals.

   I.

   The Maryland Post Conviction Procedure Act, "as originally enacted in 1958 . . . did not place any limit on the number of post conviction petitions which a petitioner was entitled to file." Mason v. State, supra, 309 Md. at 217-218, 522 A.2d at 1345. Nevertheless, "by Chapter 647 of the Act of 1986, [***3] the General Assembly amended § 645A [the Post Conviction Procedure Act] by adding new Subsection (a)(2) which provided that '[a] person may not file more than two petitions, arising out of each trial, for relief under this Subtitle.' Section 2 of Chapter 647 provided 'That this Act shall take effect July 1, [*4] 1986.'" 309 Md. at 218, 522 A.2d at 1345. This Court in Mason held that the 1986 amendments to the Post Conviction Procedure Act, imposing the two petition limit, were not intended to be applied retroactively, and that, regardless of the number of petitions filed by a petitioner prior to the 1986 amendments, all petitioners had the right to file two petitions under the Act after July 1, 1986.

   The General Assembly in 1995 once again addressed the number of petitions under the Post Conviction Procedure Act which could be filed to challenge a particular conviction. By Ch. 110 of the Acts of 1995, which was captioned "Death Penalty Reform" and which primarily amended statutory provisions relating to capital punishment, the General Assembly also amended subsection (a)(2) of the Post Conviction Procedure Act to provide as follows:

   "(2)(I) A person may file only one petition, [***4] arising out of each trial, for relief under this subtitle.

   "(II) The court may in its discretion reopen a postconviction proceeding that was previously concluded if the court determines that such action is in the interests of justice."
 
 The first of the above-quoted paragraphs was subsequently codified as Art. 27, 645A(a)(2)(i) and the second as Art. 27, § 645(a)(2)(iii). Sections 2, 3 and 5 of Ch. 110 of the Acts of 1995 stated as follows:

   "SECTION 2. AND BE IT FURTHER ENACTED, That, subject to Section 3 below, the provisions of this Act shall apply to all criminal cases, regardless of whether the case arises out of an offense that is committed before or after the effective date of this Act or whether the trial or sentencing of the defendant occurs before or after the effective date of this Act.

   "SECTION 3. AND BE IT FURTHER ENACTED, That the provisions of this Act that amend Article 27, § 645A of the Code do not apply to a case in which a second postconviction petition was filed prior to the effective date of this Act. In such a case, the court shall process the case in [*5] due course as required under Article 27, § 645A prior to the effective date of this Act."

    * * * [***5]

   "SECTION 5. AND BE IT FURTHER ENACTED, That this Act shall take effect October 1, 1995."
 
[**1282] The effect of these provisions upon § 645A(a)(2) was that a petitioner, who had previously filed a petition relating to a particular trial, had until September 30, 1995, to file another petition under the statute relating to the same trial. Ch. 110 of the Acts of 1995 was signed into law by the Governor on April 11, 1995.

   Subsection (a)(2) of the Post Conviction Procedure Act was also amended by Ch. 258 of the Acts of 1995, which was signed into law by the Governor on May 9, 1995. Section 1 of Ch. 258 provided as follows:

   "SECTION 1. BE IT ENACTED BY THE GENERAL ASSEMBLY OF MARYLAND, That the Laws of Maryland read as follows:
 
Article 27 - Crimes and Punishments
 
645A.

   (a)(2)(I) A person may not file more than 2 petitions, arising out of each trial, for relief under this subtitle.

   (II) Unless extraordinary cause is shown, in a case in which a sentence of death has not been imposed, a petition under this subtitle may not be filed later than 10 years from the imposition of sentence."
 
The above-quoted first paragraph of § 645A(a)(2) represented no change in the wording that[***6] had been enacted by Ch. 647 of the Acts of 1986. The second paragraph was entirely new language, and is now codified as Art. 27, § 645A(a)(2)(ii). Sections 2 and 3 of Ch. 258 of the Acts of 1995 stated as follows:

   "SECTION 2. AND BE IT FURTHER ENACTED, That this Act shall be construed prospectively to apply only to postconviction proceedings for sentences imposed on or after the effective date of this Act and may not be applied or interpreted to have any effect on or application to postconviction [*6] petitions for sentences imposed before the effective date of this Act.

   "SECTION 3. AND IT BE FURTHER ENACTED, That this Act shall take effect October 1, 1995."

   II.

   The underlying facts in the two cases before us are as follows.

   A.

   In 1965 James W. Grayson was found guilty by a Baltimore City jury of first degree murder, and the court sentenced him to life imprisonment on January 17, 1966. Grayson, represented by his court-appointed lawyer, took an appeal, and the Court of Special Appeals affirmed the judgment.  Grayson v. State, 1 Md. App. 548, 232 A.2d 284 (1967). In 1968, the same attorney filed the first of Grayson's petitions for post conviction relief, raising the identical[***7] issues in the post conviction petition that had been raised on direct appeal. The court denied relief on the ground that the issues raised in the post conviction petition had been fully and finally litigated on direct appeal. An application for leave to appeal was denied by the Court of Special Appeals in an unreported opinion. Thereafter Grayson filed, pro se, a second petition for post conviction relief, asserting, inter alia, ineffective assistance of counsel. In 1969, the trial court denied relief, and the Court of Special Appeals again denied Grayson's application for leave to appeal.

   Grayson's third petition for relief under the Post Conviction Procedure Act, also filed pro se, commenced the present litigation. According to the record, the petition was given to the prison officials to mail to the Circuit Court for Baltimore City on Thursday, September 28, 1995. The Circuit Court for Baltimore City marked the petition as filed on Monday, October 2, 1995. The circuit court declined to consider the merits of the petition and denied relief, stating that it was precluded from considering Grayson's petition because "'a person may file only one petition, arising out of each trial, [***8] for relief under [*7][Art. 27, § 645A(2)(i)].'" Additionally, the circuit court stated that it was precluded from considering the petition because Art. 27, § 645A(2)(ii), "states 'unless extraordinary cause is shown, in a case in which a sentence of death has not been imposed, a petition under this subtitle may not be filed later than 10 years from the imposition [**1283] of sentence.'" The court stated that "Petitioner was sentenced thirty (30) years ago . . . [and] this Court finds that 'extraordinary cause' is not shown in Petitioner's allegations."

   Grayson applied for leave to appeal to the Court of Special Appeals. The intermediate appellate court, in an unreported opinion, stated:

   "James Walker Grayson has filed an application for leave to appeal from a denial of post conviction relief. The petition that initiated this case was filed after October 1, 1995, and is the third post conviction petition the applicant has filed seeking review of this case. Because the law, Art. 27, § 645A(a)(2)(i), allows only one petition to be filed per case, we must dismiss the instant application.

    "Application For Leave To Appeal Denied. Any costs to be paid by applicant."
 
Grayson filed in this[***9] Court, pro se, a petition for a writ of certiorari, asserting that the circuit court erroneously applied Ch. 110 of the Acts of 1995 retroactively, that, in any event, his petition should be treated as filed when he delivered it to the state prison officials on September 28, 1995, that under the Maryland Rules his petition should be treated as filed before the October 1 statutory deadline, and that the circuit court erred in applying Ch. 258 of the Acts of 1995 retroactively. We granted the petition, Grayson v. State, 345 Md. 459, 693 A.2d 356 (1997), and requested the Office of the Public Defender to represent Grayson in this Court.
 
B.

   On January 30, 1991, Michael James Jackson was convicted in the Circuit Court for Anne Arundel County of first degree sex offense, burglary, and assault with intent to rape. Jackson [*8] was sentenced to life imprisonment plus two fifteen year terms to run consecutive to the life sentence but concurrent to each other. The Court of Special Appeals affirmed the judgments, Jackson v. State, 92 Md. App. 304, 608 A.2d 782 (1992), and this Court denied a petition for a writ of certiorari. Jackson v. State, 328 Md. 238, 614 A.2d 84 (1992).

   Jackson[***10] filed, pro se, a petition under the Post Conviction Procedure Act on July 19, 1993. Relief was denied by the circuit court on September 14, 1994. The Court of Special Appeals, in an unreported opinion, granted Jackson's application for leave to appeal and remanded the case for further proceedings. We denied a petition for a writ of certiorari. Jackson v. State, 339 Md. 354, 663 A.2d 72 (1995). On December 5, 1995, upon remand, the circuit court once again denied relief. The Court of Special Appeals denied Jackson's application for leave to appeal, and we denied a petition for a writ of certiorari. Jackson v. State, 342 Md. 473, 677 A.2d 566 (1996).

   Jackson initiated the present case on June 20, 1996, by filing in the Circuit Court for Anne Arundel County another petition under the Post Conviction Procedure Act. Jackson argued, inter alia, that the circuit court should revisit some of the issues raised in his first petition for post conviction relief in light of a then recently filed opinion by this Court, Armstead v. State, 342 Md. 38, 673 A.2d 221 (1996). The circuit court, in a memorandum opinion, considered on their merits Jackson's various challenges to his 1991[***11] convictions, rejected Jackson's arguments on their merits, and denied relief. Jackson filed an application for leave to appeal, and the Court of Special Appeals, in an unreported opinion, stated:

   "Michael James Jackson has filed an application for leave to appeal from a denial of post conviction relief. The petition that initiated this case was filed after October 1, 1995, and is the second post conviction petition the applicant has filed seeking review of this case. Because the law, Art. 27, § 645A(a)(2)(i), allows only one petition to be filed per case, we must dismiss the instant application. [*9]

   "Application For Leave To Appeal Denied. Any costs to be paid by applicant."
 
Jackson filed in this Court, pro se, a petition for a writ of certiorari, raising the issues of whether "Art. 27, § 645(a)(2), as amended [in] 1995, bars a person sentenced prior to October 1, 1995, from filing a second petition for post conviction relief," whether, when "a post conviction court accepts a second petition [**1284] and issues an opinion" on the merits, " § 645(a)(2)(i) bars that person from appellate review," and whether the Court of Special Appeals erred in dismissing Jackson's application for leave[***12] to appeal. This Court granted Jackson's certiorari petition, Jackson v. State, 345 Md. 459, 693 A.2d 356 (1997), and requested that the Office of the Public Defender represent Jackson in this Court.

   C.

   With regard to the first issue raised in Grayson's and Jackson's certiorari petitions, the Public Defender's Office, in its briefs on behalf of Grayson and Jackson, appears to concede that the "one petition" limitation under Ch. 110 of the Acts of 1995 is viable and applies retroactively to bar the filing, after September 30, 1995, of a new petition under the Post Conviction Procedure Act challenging a trial if the petitioner had earlier filed one or more petitions under the Act challenging the same trial. We shall accept, for purposes of these cases, this concession.

   The Public Defender's Office nevertheless argues that if Grayson's petition was untimely, n1 the circuit court should have treated it as a reopening, under Art. 27, § 645A(a)(2)(iii), of his earlier petitions because "Mr. Grayson never had a meaningful opportunity to challenge the effective assistance of trial or appellate counsel in 1969 when he had his post-conviction [*10] hearing." (Grayson's brief at 11). The Public[***13] Defender's Office points out that the circuit court clearly erred in applying the ten-year limitation in § 645(a)(2)(ii) retroactively to Grayson.

n1 While the Public Defender's Office makes no argument that Grayson's petition was timely, it does not expressly abandon the arguments made in Grayson's pro se certiorari petition that his petition was timely filed. In a case decided by the Court of Special Appeals, ordinarily the issues before this Court are those set forth in the certiorari petition, not the briefs. See Maryland Rule 8- 131(b).

   The Office of the Public Defender further argues that, in Jackson's case, the circuit court in effect treated his petition as a reopening under § 645A(a)(2)(iii), and that the Court of Special Appeals should have exercised its discretion to grant or deny leave to appeal instead of dismissing the application under the "one petition" provision of Ch. 110 of the Acts of 1995.
 
The State, in addition to arguing that the Court of Special Appeals properly dismissed both[***14] applications for leave to appeal, suggests that this Court lacks jurisdiction to review the Court of Special Appeals' decisions in these cases. The State relies on Code (1974, 1998 Repl. Vol.), § 12-202 of the Courts and Judicial Proceedings Article, which provides in pertinent part as follows:
 
   " § 12-202. Exceptions.

   A review by way of certiorari may not be granted by the Court of Appeals in a case or proceeding in which the Court of Special Appeals has denied or granted:

   (1) Leave to prosecute an appeal in a post conviction proceeding . . . ."

   III.

   We shall first address the State's suggestion that § 12-202(1) deprives this Court of jurisdiction to review the Court of Special Appeals' decisions in these cases.

   The history and purpose of the limitation in § 12-202 upon this Court's certiorari jurisdiction was considered in detail by us in Williams v. State, 292 Md. 201, 205-211, 438 A.2d 1301, 1302-1305 (1981). We pointed out in Williams, 292 Md. at 206, 438 A.2d at 1303, that the language was taken from former Code (1957, 1973 Cum. Supp.), Art. 5, § 21A, which gave the Court of Appeals broad jurisdiction to review by [*11] certiorari decisions of the Court of Special [***15] Appeals, with the only exception being that "no such [certiorari] petition shall be entertained by the Court of Appeals from the denying or granting by the Court of Special Appeals of an application for leave to prosecute an appeal in post conviction" proceedings. (Emphasis added). The Court stated in Williams that this exception to our certiorari jurisdiction related only to the Court of Special Appeals' discretionary ruling denying or granting an application for leave to appeal and did not relate to any other action by the Court of Special Appeals in such a case. We further pointed out in Williams that, when the wording [**1285] of Art. 5, § 21A, was changed by § 12-202 of the Courts and Judicial Proceedings Article, no change in the nature of this Court's certiorari jurisdiction had been intended by the General Assembly. The Williams opinion noted that this Court had previously construed the language in § 12-202 to have the same meaning as former Art. 5, § 21A. See Moss v. Director, 279 Md. 561, 369 A.2d 1011 (1977); Jourdan v. State, 275 Md. 495, 506 n.4, 341 A.2d 388, 394-395 n.4 (1975). The Court in Williams thus concluded as follows (292 Md. at 210-211, [***16] 438 A.2d at 1305):

   "Consequently, we reaffirm the holdings in Jourdan and Moss that the limitation upon this Court's jurisdiction set forth in § 12-202 of the Courts and Judicial Proceedings Article relates only to the action of the Court of Special Appeals in granting or denying an application for leave to appeal. Except for the nonreviewability of that specific action, we have jurisdiction over the type of cases listed in § 12-202 to the extent that such jurisdiction is conferred by § 12-201 or other statutory pro-visions. Therefore, in the present case, although we may not review the Court of Special Appeals' exercise of discretion in granting the State's application for leave to appeal, we are authorized to review that court's decision on the merits remanding the case to the trial court."

   The holding in Williams has been re-affirmed by us on several occasions. See, e.g., Cianos v. State, 338 Md. 406, 407, 659 A.2d 291, 292 (1995); McElroy v. State, 329 Md. 136, 145, [*12] 617 A.2d 1068, 1073 (1993); Sherman v. State, 323 Md. 310, 311, 593 A.2d 670 (1991) (this "Court has no certiorari jurisdiction to grant post-conviction relief when the Court of Special [***17]Appeals has simply denied an application for leave to appeal in a post- conviction proceeding") (emphasis added). See also State v. Hernandez, 344 Md. 721, 728, 690 A.2d 526, 530 (1997) (distinguishing between the denial of leave to appeal which does "no more than say 'There shall be no appeal in this case,'" and a decision on the merits of an issue raised by the petitioner).

   The Court of Special Appeals' decisions in the two cases at bar were not simply discretionary determinations that there should be no appeals. Rather, the Court of Special Appeals decided the merits of an issue raised by both Grayson and Jackson, namely whether the instant petitions were allowable under Art. 27, § 645(a)(2). Despite the insertion of the sentences stating that the applications for leave to appeal were denied, the intermediate appellate court did not simply exercise its discretionary authority not to entertain appeals. Instead, the Court of Special Appeals in both cases held that the post-conviction petitions were not allowable as a matter of law. Compare McElroy v. State, supra, 329 Md. 136, 617 A.2d 1068, where the Court of Special Appeals held that post conviction relief was not[***18] allowable because the petitioners had waived their right to post conviction relief, and where this Court exercised certiorari jurisdiction and affirmed the decisions of the Court of Special Appeals.
 
Since the decisions of the Court of Special Appeals in these cases did not simply amount to discretionary denials of leave to appeal, the limitation upon this Court's certiorari jurisdiction in § 12-202 of the Courts and Judicial Proceedings Article does not apply. We have jurisdiction over these cases under § 12-201 of the Courts and Judicial Proceedings Article. n2

n2 Section 12-201 provides as follows:

   " § 12-201. Certiorari to Court of Special Appeals.

   Except as provided in § 12-202 of this subtitle, in any case or proceeding pending in or decided by the Court of Special Appeals upon appeal from a circuit court or an orphans' court . . ., any party, including the State, may file in the Court of Appeals a petition for certiorari to review the case or proceeding. The petition may be filed either before or after the Court of Special Appeals has rendered a decision, but not later than the time prescribed by the Maryland Rules. In a case or proceeding described in this section, the Court of Appeals also may issue the writ of certiorari on its own motion."

[***19] [*13]

   IV.

   As previously discussed, Ch. 110 of the Acts of 1995 placed a deadline of September 30, 1995, upon the filing of a petition under the Post Conviction Procedure Act [**1286] challenging a criminal conviction if the petitioner had earlier filed one or more petitions under the Act relating to the same conviction. Under the wording of Ch. 110, if such a petitioner filed the petition on or before September 30, 1995, its allowability would be governed by § 645A(a)(2) as it was amended by Ch. 647 of the Acts of 1986, and as construed by this Court in Mason v. State, supra, 309 Md. 215, 522 A.2d 1344. Under Ch. 647 of the Acts of 1986 and our holding in the Mason case, a petition by Grayson filed on or before September 30, 1995, would have been allowable because his prior petitions were filed before 1986.

   In September 1995 Grayson was an inmate of the Maryland Correctional Institution at Jessup, Maryland, which is not very far from Baltimore City. As mentioned earlier, the record indicates that Grayson on Thursday, September 28, 1995, delivered his post conviction petition to the appropriate state prison officials for mailing to the Circuit Court for Baltimore City. The record also [***20]shows that the circuit court officials stamped Grayson's petition as filed on Monday, October 2, 1995. The record does not show when the prison officials actually mailed the petition or when it actually arrived at the Baltimore City courthouse.

   Under Maryland Rule 16-304, the hours when the circuit court's clerk's office would have been open were from 8:30 a.m. to 4:30 p.m., Monday through Friday. Consequently, the [*14] office presumably was not open on Saturday, September 30, 1995, which was the latest day for the filing of Grayson's petition.

   Maryland Rule 1-203(a) provides that whenever a rule, order of court, or "any applicable statute" prescribes the latest day for the performance of an act, and if the last day
 
"(1) . . . is a Saturday, Sunday, or holiday, in which event the period runs until the end of the next day that is not a Saturday, Sunday, or holiday; or
 
"(2) the act to be done is the filing of a paper in court and the office of the clerk of that court on the last day of the period is not open, or is closed for a part of the day, in which event the period runs until the end of the next day that is not a Saturday, Sunday, holiday, or a day on which the office is [***21]not open during its regular hours."
 
See also Code (1957, 1998 Repl. Vol.), Art. 1, § 36, which is largely to the same effect. Although the rule and the statute are most often applied to a statutorily prescribed time period, such as within a specified number of days after a certain event, n3 the Attorney General has expressed the view that "we have no doubt that the courts would apply the same principle to a single specified day." 79 Opinions of the Attorney General 455 (1994). Furthermore, section 3 of Ch. 110 of the Acts of 1995 in effect created a time period expiring at the end of the day on September 30, 1995. Consequently, we conclude that Rule 1-203 and Art. 1, § 36, are applicable under the circumstances here.

n3 See, e.g., Ungar v. Handelsman, 325 Md. 135, 139 n.1, 599 A.2d 1159, 1161 n.1 (1992); Dixon v. State, 302 Md. 447, 450 n.1, 488 A.2d 962, 963 n.1 (1985).

    Since, under Ch. 110 of the Acts of 1995, September 30, 1995, was the last day for Grayson to file the instant post conviction[***22] petition, and because September 30th fell on a Saturday, Rule 1-203 and Art. 1, § 36, gave Grayson until the following Monday to file his petition. The petition was filed on Monday, and, therefore, it was timely. Both the circuit court and the Court of Special Appeals erred in holding that [*15] Grayson's petition was not allowable under Ch. 110 of the Acts of 1995.

   Moreover, the circuit court clearly erred in holding that Grayson's petition was barred by the 10-year provision enacted by Ch. 258 of the Acts of 1995. Under Section 2 of Ch. 258, the prohibition against filing a petition later than 10 years from the imposition of sentence, absent extraordinary cause, applied only to sentences imposed on and after October 1, 1995. Grayson's sentence was imposed in 1966.

   In light of our holding that Grayson's petition was allowable under Section 3 of Ch. 110 of the Acts of 1995, and section 2 of Ch. 258 of the Acts of 1995, it is unnecessary for us to reach any of the other arguments advanced by Grayson or by the Office of the Public Defender on Grayson's behalf. We shall direct [**1287]that Grayson's case be remanded to the circuit court for that court to consider the merits of his petition under[***23] the Post Conviction Procedure Act.

   V.

   In Jackson's present petition for post conviction relief, he specifically requested, inter alia, that the circuit court reopen his earlier post conviction proceeding pursuant to Art. 27, § 645(a)(2)(iii). Although the circuit court may not have employed the word "reopen" in its opinion, the court in detail discussed and ruled upon each one of Jackson's challenges to his 1991 convictions and sentences. In connection with Jackson's argument that his trial counsel had been ineffective, the circuit court also "weighed any cumulative effect" of the alleged deficiencies by Jackson's counsel at his original trial. In addition, the circuit court held that this court's opinion in Armstead v. State, supra, provided no basis for post conviction relief. The circuit court concluded that there had been no denial of Jackson's constitutional rights at his original trial and then, immediately thereafter, stated that, "accordingly," Jackson's petition was denied.

   Nothing in the circuit court's opinion remotely suggested that the court was refusing to entertain Jackson's petition on [*16] the merits. Instead, it is clear that the circuit court, in accordance[***24] with Jackson's express request, was reopening the prior post conviction proceeding.

   Art. 27, § 645(a)(2)(iii), specifically authorizes a circuit court to reopen a post conviction proceeding if the circuit court decides that such action is in the interests of justice. When the circuit court does reopen a post conviction proceeding, and then grants or denies post conviction relief, the losing party is entitled to file an application for leave to appeal to the Court of Special Appeals. In such a case, the Court of Special Appeals must exercise its discretion to determine whether or not to grant leave to appeal. In Jackson's case, the Court of Special Appeals did not exercise this discretion. Instead, the intermediate appellate court erroneously overlooked the decision of the circuit court reopening the matter and held that Jackson's petition was not allowable.

   Therefore, we shall remand Jackson's case to the Court of Special Appeals for that court to exercise its discretion and simply deny or grant the application for leave to appeal. If the application is granted, the case shall proceed like any other appeal in the Court of Special Appeals.  Williams v. State, supra, 292 Md. at[***25] 208-209, 438 A.2d at 1304-1305; Jourdan v. State, supra, 275 Md. at 506 n.4, 341 A.2d at 394-395 n.4.

   IN NO. 25, THE JUDGMENT OF THE COURT OF SPECIAL APPEALS IS REVERSED, AND THE CASE IS REMANDED TO THAT COURT WITH DIRECTIONS TO REVERSE THE JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE CITY AND REMAND THE CASE TO THE CIRCUIT COURT FOR BALTIMORE CITY FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID BY THE RESPONDENT.

   IN NO. 26, THE JUDGMENT OF THE COURT OF SPECIAL APPEALS IS REVERSED AND THE CASE IS REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS [*17] CONSISTENT WITH THIS OPINION. COSTS IN THIS COURT TO BE PAID BY THE RESPONDENT. COSTS IN THE COURT OF SPECIAL APPEALS TO ABIDE THE RESULT. 

VINCENT N. VALENTINE, ET AL. v. ON TARGET, INC. 
No. 8, September Term, 1997
 
COURT OF APPEALS OF MARYLAND
 
353 Md. 544; 727 A.2d 947; 1999 Md. LEXIS 169

 April  19, 1999, Filed

   PRIOR HISTORY: [***1]

   Certiorari to the Court of Special Appeals (Circuit Court for  Anne Arundel  County). Clayton Greene, Jr., JUDGE.

DISPOSITION: JUDGMENT AFFIRMED, WITH COSTS. 
CASE SUMMARY 

PROCEDURAL POSTURE:  Plaintiff challenged the judgment of the Court of Special Appeals, Circuit Court for Anne Arundel County (Maryland), which affirmed the dismissal of plaintiff's cause of action for negligence against respondent gun dealer.

OVERVIEW:  Plaintiff brought suit against respondent gun dealer for negligence. The complaint was based on the fact that an assailant using a gun stolen from respondent's store murdered plaintiff's decedent. Plaintiff contended that respondent owed a duty to the decedent to exercise reasonable care in the display of handguns held out to the public for sale and that respondent breached that duty. Respondent moved to dismiss based on a failure to state a claim upon which relief could be granted, and the trial court granted the motion. Upon review, the court held that under the facts of the case, respondent did not owe a duty to plaintiff and thus could not be held liable in negligence. Plaintiff did not allege any facts to support his claim that respondent knew or should have known of the existence of the circumstances that increased the probability that a thief would steal his guns, which would then be used in a criminal manner. To impose on respondent an imprecise notion of a foreseeability risk of harm to the public in general would pose too great a burden on store owners, with only a hypothetical benefit to the public, at best.

OUTCOME:  The court affirmed the dismissal of plaintiff's negligence action because respondent gun dealer did not owe a duty of reasonable care to plaintiff's decedent so as to be found liable for the decedent's death.

CORE TERMS:  duty, gun, handgun, theft, stolen, foreseeable, firearm, merchant, decedent, owed, owe, foreseeability, intervening, retail, third person, store owner, exercise reasonable care, gun control, criminal acts, dealer, motion to dismiss, third parties, display, cause of action, landlord, felons, respondent owed, general public, matter of law, third party

CORE CONCEPTS -  

Civil Procedure: Pleading & Practice: Defenses, Objections & Demurrers: Motions to Dismiss
Civil Procedure: Appeals: Standards of Review
When considering an appeal that arises as the result of the trial court's granting a motion to dismiss, as opposed to the granting of summary judgment or judgment entered after trial, the court will assume the truth of all well-pleaded facts and any reasonable inferences that can be properly drawn therefrom; however, the court does not consider merely conclusory charges.

Civil Procedure: Pleading & Practice: Defenses, Objections & Demurrers: Motions to Dismiss
The granting of a motion to dismiss is proper when, even if the facts and allegations as set forth in the complaint were proven to be true, the complaint would nevertheless fail to state a claim upon which relief could be granted.

Torts: Negligence: Actions
To maintain an action in negligence, the plaintiff must assert in the complaint the following elements: (1) that the defendant was under a duty to protect the plaintiff from injury, (2) that the defendant breached that duty, (3) that the plaintiff suffered actual injury or loss, and (4) that the loss or injury proximately resulted from the defendant's breach of the duty.

Civil Procedure: Pleading & Practice: Pleadings: Construction
Facts must be pleaded with some specificity to demonstrate that the elements which are required to sustain the cause of action exist. It is not sufficient to merely assert conclusory allegations suggesting that the elements are in fact present in the controversy.

Torts: Negligence: Duty: Determinations
The existence of all of the elements including a legally recognized duty owed by the defendant to the plaintiff or to a class of persons of which the plaintiff is a member is vital to sustaining a cause of action in negligence. Generally, whether there is adequate proof of the required elements needed to succeed in a negligence action is a question of fact to be determined by the fact finder, but the existence of a legal duty is a question of law to be decided by the court.

Torts: Negligence: Duty: Determinations
A duty, in negligence cases, may be defined as an obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct toward another. In addition, duty, it must be recalled, does not exist in a vacuum; the duty required in law must be to the person injured. It is a focused duty. In other words, "duty" is a question of whether the defendant is under any obligation for the benefit of the particular plaintiff; and in negligence cases, the duty is always the same -- to conform to the legal standard of reasonable conduct in the light of the apparent risk.

Torts: Negligence: Duty: Determinations
In determining the existence of a duty owed to a plaintiff, the court has applied a "foreseeability of harm" test, which is based upon the recognition that a duty must be limited to avoid liability for unreasonably remote consequences. Inherent also in the concept of duty is the concept of a relationship between the parties out of which the duty arises.

Torts: Negligence: Duty: Determinations
Notwithstanding the fact that foreseeability is a critical element in ascertaining whether or not a duty exists, not all foreseeable harm gives rise to a duty; there are other factors to consider such as intervening circumstances or parties.

Torts: Negligence: Duty: Control of Third Parties
Torts: Negligence: Duty: Determinations
There is no duty on the part of a storeowner to aid a customer from attack by a third person in the absence of statute or special relationship.

COUNSEL: ARGUED BY Clarke F. Ahlers of Columbia, MD (Sharon E. Haynie of Houston, TX, on brief) FOR PETITIONERS.
 
ARGUED BY Kevin J. McCarthy (Heather J. Kelly, McCarthy, Bacon & Costello, L.L.P., on brief) of Lanham, MD., FOR RESPONDENT.

JUDGES: ARGUED BEFORE Bell, C.J.; Eldridge, Rodowsky, Chasanow, Raker, Smith, Marvin H. and Karwacki, Robert L. (retired, specially assigned), JJ. Opinion by Karwacki, J. in which Bell, C.J., and Eldridge, J., join.

OPINIONBY: ROBERT L. KARWACKI

OPINION: [*546] [**948]

   Opinion by Karwacki, J.
 
We issued a writ of certiorari in this case to answer the question of what, if any, tort duty a gun store owner owes to third parties to exercise reasonable care in the display and sale of handguns to prevent the theft and the illegal use of the [*547] handguns by others against third parties. Confining our analysis to the well pleaded facts in the complaint filed by petitioner in the instant case, the issue is properly limited to the determination of whether respondent owed a duty to the petitioner's decedent. We hold that such a tort duty is not cognizable under those facts and consequently that the trial court properly granted respondent's motion to dismiss the complaint.
 
I.

   On July 17, 1993, Edward Wendell McLeod and a confederate stole several handguns from On Target, Inc., the respondent, a gun retailer located in Anne Arundel County. On September 26, 1993, Joanne Valentine[***2] was murdered outside of her home in Anne Arundel County by an unknown assailant who shot her with one of the guns stolen from On Target, Inc., on the previous July 17th. Vincent Valentine, the petitioner, as personal representative of the Estate of Joanne Valentine, and as surviving spouse and next friend of Vincent N. Valentine II and Nicholas Paul Valentine, surviving minor children of the deceased, filed suit in the Circuit Court for Anne Arundel County against the respondent to recover damages for her wrongful death.
 
   The complaint sought damages from the respondent based on a claim of negligence. In his complaint petitioner asserted that respondent owed a duty to "Joanne Valentine and to all other persons situate in or near Anne Arundel County, to exercise reasonable care in the display of handguns held out to the public for sale to prevent theft and illegal use of the handguns." (Significantly, the complaint does not describe how the handguns were displayed or what could have been done by respondent's agents to prevent the theft). The petitioner further averred that respondent breached this duty by failing to (1) properly train and supervise its employees to prevent theft of[***3] the handguns, (2) properly supervise customers at a time when the store was open to members of the general public for the sale of handguns, (3) adequately keep watch over the handguns and install adequate security devices [*548] to deter, or detect, the theft of handguns, (4) properly secure the handguns and store them in a display case to safeguard them from theft, (5) interrupt the theft of the handguns, (6) notice the theft of the handguns and notify law enforcement authorities in a timely fashion, and (7) failed to warn the community of the theft of the handguns in a timely fashion.

   [**949] The respondent filed a motion to dismiss pursuant to Maryland Rule 2-322(b)(2) based on a failure to state a claim upon which relief could be granted. After conducting a hearing, the trial court, without stating any reasons, granted the motion to dismiss. The petitioner noted a timely appeal to the Court of Special Appeals and that court affirmed the trial court's dismissal.  Valentine v. On Target, 112 Md. App. 679, 686 A.2d 636 (1996). Then Chief Judge Wilner writing for the intermediate appellate court, reasoned that the trial court was correct for alternative reasons (1) that the respondent did not[***4] owe a duty to the petitioner's decedent under the well pleaded facts of the complaint or (2) even if the failure to prevent the theft of the guns was a breach of some duty, it was not the proximate cause of death of the petitioner's decedent.
 
II.

   When considering an appeal that arises as the result of the trial court's granting a motion to dismiss, as opposed to the granting of summary judgment or judgment entered after trial, the Court will assume the truth of all well-pleaded facts and any reasonable inferences that can be properly drawn therefrom; however, we do not consider "merely conclusory charges." Faya v. Almaraz, 329 Md. 435, 443-44, 620 A.2d 327, 331 (1993), citing Berman v. Karvounis, 308 Md. 259, 264-265, 518 A.2d 726, 728-29 (1987). The granting of a motion to dismiss is proper when, even if the facts and allegations as set forth in the complaint were proven to be true, the complaint would nevertheless fail to state a claim upon which relief could be granted.  329 Md. at 443. As the Court of Special Appeals noted, because the trial court did not state its reasons for granting respondent's motion to dismiss, it will be affirmed if the record reveals any legally[*549] [***5] sound reason for the decision. Valentine v. On Target, 112 Md. App. 679, 682, 686 A.2d 636, 637 (1996).

   III.

   To maintain an action in negligence, the plaintiff must assert in the complaint the following elements: "(1) that the defendant was under a duty to protect the plaintiff from injury, (2) that the defendant breached that duty, (3) that the plaintiff suffered actual injury or loss, and (4) that the loss or injury proximately resulted from the defendant's breach of the duty." BG & E v. Lane, 338 Md. 34, 43, 656 A.2d 307, 311 (1995), citing Rosenblatt v. Exxon, 335 Md. 58, 76, 642 A.2d 180, 188 (1994). See also Lamb v. Hopkins, 303 Md. 236, 492 A.2d 1297 (1985). Facts must be pleaded with some specificity to demonstrate that the elements which are required to sustain the cause of action exist. It is not sufficient to merely assert conclusory allegations suggesting that the elements are in fact present in the controversy. Id.

   The existence of all of the elements including a legally recognized duty owed by this defendant to this plaintiff or to a class of persons of which this plaintiff is a member is vital to sustaining a cause of action in negligence. Rosenblatt [***6]  v. Exxon, 335 Md. 58, 76, 642 A.2d 180, 188 (1994). Generally, whether there is adequate proof of the required elements needed to succeed in a negligence action is a question of fact to be determined by the fact finder; but, the existence of a legal duty is a question of law to be decided by the court. Nevertheless, as so aptly stated by W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS § 30, at 358 (5th ed. 1984):

   "There is little analysis of the problem of duty in the courts. Frequently it is dealt with in terms of what is called 'proximate cause,' usually with resulting confusion. In such cases, the question of what is 'proximate' and that of duty are fundamentally the same: whether the interests of the plaintiff are to be protected against the particular invasion by the defendant's conduct. . . . [*550]
 
There are, however, a good many defendants, and a good many situations, as to which there is no such duty. In other words, the defendant is under no legal obligation toward the particular plaintiff to act with the care of a reasonable man, and he is not liable even though his conduct falls short of that standard, and the other is injured as a result."

   [**950] We focus our[***7] attention then on the question of whether the respondent owed a duty to the petitioner's decedent under the facts of the instant case. First, it is important to consider the policy reasons supporting a cause of action in negligence. The purpose is to discourage or encourage specific types of behavior by one party to the benefit of another party. The purpose is defined in the first element needed in order to sustain a cause of action in negligence, proof that the defendant had a duty to act to the benefit of the plaintiff. If the creation of a duty has no benefit to the plaintiff then the purpose is defeated. In Ashburn v. Anne Arundel County, 306 Md. 617, 627, 510 A.2d 1078, 1083 (1986) we quoted Prosser and Keeton's treatise on torts: "A duty, in negligence cases, may be defined as an obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct toward another." PROSSER AND KEETON ON THE LAW OF TORTS, supra, at 356. In addition, "duty, it must be recalled, does not exist in a vacuum; the duty required in law must be to the person injured. It is a focused duty." Valentine v. On Target, 112 Md. App. 679, 684, 686 A.2d 636, [***8] 638 (1996). As further defined by Prosser and Keeton "In other words, 'duty' is a question of whether the defendant is under any obligation for the benefit of the particular plaintiff; and in negligence cases, the duty is always the same -- to conform to the legal standard of reasonable conduct in the light of the apparent risk," supra at 356.

    Accordingly, the duty question that arises under the facts of the instant case primarily requires consideration of two of the concepts which create duty, relationship or nexus of the parties and foreseeability. As we further held in Rosenblatt, supra, "in determining the existence of a duty owed to [*551] a plaintiff, we have applied a 'foreseeability of harm' test, which is based upon the recognition that a duty must be limited to avoid liability for unreasonably remote consequences. Inherent also in the concept of duty is the concept of a relationship between the parties out of which the duty arises." 335 Md. 58, 77, 642 A.2d 180, 189 (1994). Petitioner does not allege any facts to support his claim that respondent knew or should have known of the existence of circumstances that increased the probability that a thief would steal guns from [***9]its retail store and that a third unknown party would obtain one of those stolen guns and use it in a criminal manner. Nevertheless, petitioner argues that it is generally foreseeable that guns are increasingly used in the commission of crimes. In effect, petitioner's argument would impose a duty based solely on an imprecise notion of a foreseeability of risk of harm to the public in general. Notwithstanding the fact that foreseeability is a critical element in ascertaining whether or not a duty exists, not all foreseeable harm gives rise to a duty; there are other factors to consider such as intervening circumstances or parties.
 
Although this Court has analyzed the concept of duty under a variety of different factual scenarios, our holding in Scott v. Watson, 278 Md. 160, 359 A.2d 548 (1976), articulates the law in Maryland and adds substantial support for our holding in the case at bar. In that case we were called upon to answer a question certified to us by the United States District Court for the District of Maryland, pursuant to the Uniform Certification of Questions of Law Act, Maryland Code (1974) § 12-601 et seq., of the Courts & Judicial Proceedings Article. The[***10] questions certified to us involved what, if any, duty a landlord owed to tenants to protect them from the criminal acts of third parties committed in the common areas of the leased premises which were within the landlord's control.  278 Md. at 161-62. In that case, a tenant was shot in the underground parking garage of the apartment complex by an unknown assailant. Plaintiff brought an action sounding in negligence against the landlord. We held that "the general rule is a subsidiary of the broader rule that a [*552] private person is under no special duty to protect another from the criminal acts by a third person, in the absence of statutes, or of a special relationship. See Restatement of Torts (Second) § 315 (1965) (no duty to control third person's conduct so as to prevent physical harm to another unless a special relation exists between actor and third person, [**951] or between actor and the other.)" Id. at 166.

   As clearly outlined by Judge Wilner, "the view expressed in Scott has been confirmed in later cases. See Lamb v. Hopkins, 303 Md. 236, 492 A.2d 1297 (1985); cf.  Southland Corp. v. Griffith, 332 Md. 704, 716-17, 633 A.2d 84 (1993), applying the same principle[***11] with respect to a duty to aid, i.e., there is no duty on the part of a storeowner to aid a customer from attack by a third person in the absence of statute or special relationship. See also Ashburn v. Anne Arundel County, 306 Md. 617, 510 A.2d 1078 (1986) (police officer had no duty to prevent allegedly drunk driver from injuring pedestrian); Furr v. Spring Grove State Hosp., 53 Md. App. 474, 454 A.2d 414, cert. denied, 296 Md. 46, 459 A.2d 205 (1983) (psychiatrist owed no public duty to prevent harm by failing to detain patient); Hartford Ins. Co. v. Manor Inn, 335 Md. 135, 642 A.2d 219 (1994)." Valentine v. On Target, 112 Md. App. 679, 686, 686 A.2d 636, 639 (1996).

   As explained by Prosser and Keeton, anticipating the actions of third parties involves the consideration of a variety of factors including who the third party is likely to be or what type of conduct one is attempting to predict.

   "There is normally much less reason to anticipate acts on the part of others which are those which are merely negligent, and this is all the more true where, as is usually the case, such acts are criminal. Under all ordinary and normal circumstances, in the absence of any reason to[***12] expect the contrary, the actor may reasonably proceed upon the assumption that others will obey the criminal law. . . .

   There are, however, other situations, in which either a special responsibility resting upon the defendant for the protection of the plaintiff, or an especial temptation and [*553] opportunity for criminal misconduct brought about by the defendant, will call upon him to take precautions against it. The responsibility for protection may arise out of contract, by which the defendant has agreed to provide it; or it may be founded upon some relation existing between the parties, such as carrier and passenger, innkeeper and guest, invitor and business visitor, school and pupil, employer and employee, landlord and tenant, and no doubt others." (Footnotes omitted).
 
PROSSER AND KEETON ON THE LAW OF TORTS, supra at 356.

   One cannot be expected to owe a duty to the world at large to protect it against the actions of third parties, which is why the common law distinguishes different types of relationships when determining if a duty exists. The class of persons to whom a duty would be owed under these bare facts would encompass an indeterminate class of people, known and unknown. [***13] When balancing the burden on the shop owner with the benefit to society at large clearly this imposition of duty would be a tremendous burden on shop owners while providing only a hypothetical benefit to the public at best. This Court does not discern in the common law the existence of a third party common law duty that would apply to these facts.
 
IV.

   Petitioner cites several cases from other jurisdictions in support of his argument that a duty exists under these circumstances. Upon an analysis of these cases we find that they are factually distinguishable from the situation in the case at bar. Furthermore, even if a factual analogy could be made, the legal rationale supporting the holdings in one of these cases cannot be reconciled with the longstanding jurisprudence of our State.

    Pavlides v. Niles Gun Show, Inc., 93 Ohio App. 3d 46, 637 N.E.2d 404 (Ohio App. 5 Dist. 1994) is factually inapposite. There the defendants were sued for negligence by the victims of a shooting perpetrated by minors who stole the gun used in the shooting from a gun show operated by the defendants. Summary [*554]judgment was entered against the plaintiffs from which they appealed. The Court of Appeals[***14] of Ohio reversed the trial court's granting of summary judgment in favor of the defendants, holding that there was sufficient facts alleged in the complaint to demonstrate that issues of fact needed to be resolved pertaining to whether the minor's criminal activity was foreseeable and whether defendants' conduct was willful and wanton misconduct.

   [**952] The court in Pavlides reasoned that considering the specific facts alleged in the complaint indicating that the defendants had knowledge of thefts from prior gun shows and had knowledge of the risks associated with allowing unsupervised minors entrance to the gun show suggested that reasonable minds could conclude that the defendants should have foreseen that there existed a substantial probability that minors would be attracted to the show and would likely be lured into stealing guns. Furthermore, evidence was produced alleging that one of the gun dealers sold ammunition to one of the minor children thus bolstering the court's holding that because reasonable minds could conclude that it was foreseeable that minor children who could easily steal guns and then successfully purchase ammunition would likely use the weapon in furtherance [***15]of criminal activity therefore, granting summary judgment was inappropriate under the facts presented. Id.

    Berly v. D&L Security Services and Investigations, Inc., 876 S.W.2d 179 (Tex. Ct. App. 1994) is also factually inapposite. In that case the plaintiff's decedent was a clerk in a store which employed the defendant security guard service. The decedent was killed on the store premises by a shoplifter who was being pursued by defendant's guard. The Texas court reasoned that the guard's pursuit of the armed shoplifter increased the danger to plaintiff's decedent and others present in the store, thereby partially creating the danger to which they were exposed.

   A third case cited by the petitioner in support of his argument is Estate of Strever v. Cline, 278 Mont. 165, 924 P.2d 666 (Mont. 1996) wherein the Supreme Court of Montana affirmed a [*555] summary judgment in favor of a gun owner whose stolen gun accidentally was fired, killing a minor child. While the Montana court held that a gun owner did owe a duty to the deceased minor to store his gun in a safe and reasonable manner, the court went on to hold that under the facts presented in the controversy that the intervening[***16] criminal acts of the deceased minor and his companions were superseding acts which prohibited liability by the gun owner for the injury.

   The relevant facts consisted of the following; four boys, including the deceased minor who was the subject of the controversy, entered the defendant's unlocked truck and stole several items including a handgun that was wrapped in a paper bag and stored under the seat. After one of the boys had been smoking marijuana, he was playing with the gun and in the process caused the gun to discharge hitting another boy and fatally wounding him. The court held that the defendant owed a duty not only to the minor boys who stole the gun from his truck but also "to the public in general." 924 P.2d at 669.
 
The Supreme Court of Montana partially based its holding on their abandonment of the common law distinctions between the duty owed to invitee, licensee and trespasser and instead have "adopted a uniform standard of reasonable care under the circumstances." 924 P.2d at 670. The court reasoned that although a tortious trespass usually involves an intrusion upon land that a trespass can also be against one's personal property. Consequently, although the boys[***17] were trespassers as to the defendant's truck and his gun, the court focused its analysis on whether the defendant exercised reasonable care instead of examining what duty should be owed to the boys based on their conduct under the circumstances. In our view, this rationale shifts the entire burden of avoiding harm to one party, the land or property owner. We cannot conclude that this is a legally sound approach when analyzing whether a common law duty is owed under these facts. The legal principle that this case stands for, that a duty may exist to the public at large without any evidence of a relationship between the parties, is simply too foreign to our well-established jurisprudence [*556] to sufficiently advocate a different result than the one we have reached.
 
V.

   Extending the general duty that an actor owes to exercise reasonable care to avoid causing injury to another and applying it to the facts of this case would require that this [**953] Court create a completely new cause of action in this State which we do not believe is the proper course of action under these facts. We caution that the holding in this case does not mean that a gun store owner may never be held liable to another[***18] party for negligence in the display and sale of guns when that other party is injured as a result of the negligence but rather that under the specific facts alleged in this particular case no duty was owed to this petitioner's decedent.

   Our holding that a gun store owner does not owe a duty to a third person and thus can not be held liable in negligence is best explained by public policy; that although the inherent nature of guns suggests that their use may likely result in serious personal injury or death to another this does not create a duty of gun dealers to all persons who may be subject of the harm. If we would hold today that gun merchants owe an indefinite duty to the general public effectively we would be regulating the merchants. This type of regulation is the realm of the legislature and is not appropriate as a judicial enactment.
 
JUDGMENT AFFIRMED, WITH COSTS.

CONCURBY: Raker

CONCUR:  
Raker, J., concurring:

   I join in the judgment of the Court affirming the trial court's dismissal of Petitioner's complaint. While I agree with the majority's reasoning with regard to the insufficiency of Petitioner's factual allegations, I take issue with those parts of the opinion[***19] which impliedly foreclose the possibility of a tort action based upon the negligence of a retail gun merchant in the keeping, display, storage, or sale of handguns. [*557]

   The majority affirms the trial court's dismissal of Petitioner's complaint based on the failure to state a claim upon which relief can be granted. The majority denies relief to Petitioner on several grounds: (1) that the plaintiff failed to allege sufficient facts in the complaint upon which relief can be granted; (2) that no duty is owed to the plaintiff; and (3) that the criminal act of murder constituted an unforeseeable, intervening act that broke the chain of causation. I agree with the first conclusion, but respectfully disagree with the majority's view that no duty is owed to the plaintiff, as well as its intimation that the theft of a handgun from a retail gun store, and the subsequent criminal misuse of that handgun are not foreseeable as a matter of law.
 
   The majority stresses in several parts of its opinion that the rationale and decision in this case are limited to the facts presented, insufficient as they are. For instance, in the introductory paragraph, the majority states:

   Confining our analysis to the [***20]  well pleaded facts in the complaint filed by petitioner in the instant case, the issue is properly limited to the determination of whether respondent owed a duty to the petitioner's decedent. We hold that such a tort duty is not cognizable under those facts . . . .
 
Maj. op. at 1 (emphases added). The majority further writes, "We focus our attention then on the question of whether the respondent owed a duty to the petitioner's decedent under the facts of the instant case." Maj. op. at 5 (emphasis added). Shortly thereafter, in rejecting the assertion that the theft and criminal misuse of the handgun in the present case were foreseeable, the majority concludes, "Petitioner does not allege any facts to support his claim . . . ." Maj Op. at 6. The majority later states,
 
The class of persons to whom a duty would be owed under these bare facts would encompass an indeterminate class of people, known and unknown. . . . This Court does not discern in the common law the existence of a third party common law duty that would apply to these facts."[*558]
 
Maj. op. at 9 (emphases added). Lastly, the majority's final section, Part V., begins as follows:

   Extending the general[***21] duty that an actor owes to exercise reasonable care to avoid causing injury to another and applying it to the facts of this case would require that this Court create a completely new cause of action in this State which we do not believe is the proper course of action under these facts.
 
Maj. op. at 12 (emphases added).

   Despite these explicit and purposeful limitations, other portions of the majority opinion [**954] are painted, in my estimation, with too broad a brush. Most notably, the Court's concluding paragraph, Maj. op. at 13, proclaims:
 
Our holding that a gun store owner does not owe a duty to a third person and thus can not be held liable in negligence is best explained by public policy; that although the inherent nature of guns suggests that their use may likely result in serious personal injury or death to another this does not create a duty of gun dealers to all persons who may be subject of the harm. If we would hold today that gun merchants owe an indefinite duty to the general public effectively we would be regulating the merchants. This type of regulation is the realm of the legislature and is not appropriate as a judicial enactment.

   These final thoughts, not[***22] limited to the facts of the present case, may be the most lasting impression of the Court's decision today. Lest they be misunderstood as declaring victims of handgun violence in Maryland to be barred from suing retail handgun merchants for their negligent handling of their handgun inventory, I write to suggest that the majority's opinion should not be read to mitigate or mute what the Court has announced in concluding its penultimate paragraph:

   We caution that the holding in this case does not mean that a gun store owner may never be held liable to another party for negligence in the display and sale of guns when that other party is injured as a result of the negligence but [*559]rather that under the specific facts alleged in this particular case no duty was owed to this petitioner's decedent.
 
Maj. op. at 12-13 (emphases added). To my mind, this singular sentence comprises the Court's most significant ruling.

   I would affirm the Court of Special Appeals on the very narrow ground that the complaint fails to state any facts, beyond bald and conclusory allegations, that Respondent breached a duty of due care to Petitioner in this case. See Maryland Rule 2-303(b) (A pleading[***23] shall contain statements of fact necessary to show pleader's entitlement to relief); Scott v. Jenkins, 345 Md. 21, 28, 690 A.2d 1000, 1003 (1997) ("Any claim for relief based upon an alleged tort, intentional or non-intentional, must allege facts, if proven true, sufficient to support each and every element of the asserted claim.").

   Writing for the Court of Special Appeals, then Chief Judge Wilner, now a member of this Court, pointed out that the complaint gives no details as to how McLeod and his confederate managed to steal the guns, how the guns were stored, what precautions Respondent had taken to secure the guns, or how the theft occurred.  Valentine v. On Target, 112 Md. App. 679, 682, 686 A.2d 636, 637 (1996). Moreover, the complaint does not indicate whether McLeod was an unaccompanied minor, id. at 689, 686 A.2d at 641, nor what Respondent did or did not do to prevent the theft, id., 686 A.2d at 641, nor what more Respondent could or should have done.  Id. at 691, 686 A.2d at 641. The intermediate appellate court therefore emphasized that "to extend liability to the general public on these facts, or lack of them, would effectively create a doctrine [***24]of absolute liability . . . ." Id., 686 A.2d at 641.

   For the reason--and only for the reason--that Petitioner failed to sufficiently plead the facts necessary to state a cause of action in negligence against Respondent, I would affirm the judgment dismissing the complaint. Because, however, the majority opinion ventures beyond that which is necessary to decide the instant case, I feel compelled to respectfully dissent from its reasoning beyond the issue of factual insufficiency. [*560]
 
In weighing the burden on the retail gun merchant against the benefit to the public at large, the majority reasons that the scale shifts towards no liability. Maj. op. at 9. The majority concludes that to rule otherwise would unfairly shift the entire burden of avoiding harm and establishes an indefinite duty of care on handgun shop merchants. The majority bases this decision on a finding that a duty of ordinary care to protect against theft is not, as a matter of law, owed by a gun store owner in the displaying of firearms held out to the public for sale. The majority also implies that, even if a duty existed, proximate causation between the defendant's actions and the plaintiff's injuries [**955] was, as[***25] a matter of law, broken by the intervening criminal acts of a third party. Maj. op. at 7-9. Although, again, I would leave for another day the question of whether a retail handgun merchant can be liable in tort where the merchant fails to exercise reasonable care in the security of handguns held out for sale to the public, I note my disagreement with the broad policy statements set forth by the majority.

   I believe that retail handgun merchants owe a legally recognized duty to exercise ordinary care in securing handguns held out for public sale and that, as a matter of law, the chain of causation is not necessarily broken by intervening criminal acts. The imposition of tort liability upon the merchant would not shift the entire burden of preventing harm onto a gun store owner, nor would it establish an "indefinite duty," as the majority ominously predicts. Instead, it would merely impose upon a store owner a duty to exercise ordinary care in the storage and display of handguns held out for sale to the public.
 
Under our current tort jurisprudence, does the defendant have a legally recognized duty to secure its guns to prevent theft? Duty, in negligence cases, has been defined as[***26] "an obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct toward another." Ashburn v. Anne Arundel County, 306 Md. 617, 627, 510 A.2d 1078, 1083 (1986) (quoting W. PAGE KEATON, PROSSER AND KEATON ON TORTS § 53, at 356 (5th ed. 1984)). Since, in the absence of a statutory duty, a special relationship ordinarily [*561] must exist between the plaintiff and the defendant at the time the plaintiff is injured by the criminal acts of a third party for liability to attach, see Scott v. Watson, 278 Md. 160, 166, 359 A.2d 548, 552 (1976), the majority correctly focuses on foreseeability as the determining factor for whether a duty of care exists.  See Jacques v. First Nat'l Bank, 307 Md. 527, 534-35, 515 A.2d 756, 759-60 (1986) (stating that where failure to exercise due care creates risk of personal injury, "the principal determinant of duty becomes foreseeability."). See also Matthews v. Amberwood, 351 Md. 544, 560-61, 719 A.2d 119, 127 (1998); Village of Cross Keys v. U.S. Gypsum, 315 Md. 741, 752-53, 556 A.2d 1126, 1131 (1989). In my opinion, the theft of a handgun, left unsecured and easily accessible, is foreseeable, [***27] as is the definitive possibility that a stolen handgun will be used in violent crime, and thus, a duty exists.

   The foreseeability test is "simply intended to reflect current societal standards with respect to an acceptable nexus between the negligent act and the ensuing harm . . . ." Henley v. Prince George's County, 305 Md. 320, 334, 503 A.2d 1333, 1340 (1986). If a plaintiff can prove that the theft of a handgun from a retail shop, as well as the subsequent, violent, criminal misuse of the stolen handgun were foreseeable, and not "highly extraordinary," then a duty exists to a foreseeable plaintiff on the part of the retail merchant to secure handguns for sale to the public. See RESTATEMENT (SECOND) OF TORTS § 435(2) (1965) (stating that attachment of liability may be avoided where it appears highly extraordinary that defendant's negligent conduct should have brought about the harm (cited in Henley, 305 Md. at 334, 503 A.2d at 1340)). I therefore disagree with the majority's conclusion that, as a matter of law, neither the theft nor the criminal misuse of the firearm was foreseeable. Cf.  Matthews, 351 Md. at 560-63 and n. 4, 719 A.2d at 127-28 and n.4 (imposing[***28] liability on landlord for fatal attack by tenant's pit bull on sixteen-month old child based in part on foreseeability of attack which was partly demonstrable by numerous legislative efforts to control or ban pit bull breed widely known for viciousness and aggression). [*562]

   Estimates for the number of guns stolen each year vary greatly. Some authorities put the figure somewhere between 65,000 and 225,000 guns annually, n1 while others estimate that as many as 1,800,000 guns are stolen per year. n2 Whatever the exact figure, [**956] the theft of a handgun is clearly not uncommon. This fact is significant because it is well known that stolen handguns are an important source of supply to the criminal population. See JAMES D. WRIGHT & PETER H. ROSSI, ARMED AND CONSIDERED DANGEROUS 184, 193, and 196 (Expanded Edition 1994). Stolen guns are particularly attractive to people who intend to commit violent crimes with handguns because they are untraceable, an important characteristic to felons, and enjoy a potentially quick turnover. THE ANNALS OF THE AMERICAN ACADEMY OF POLITICAL AND SOCIAL SCIENCE, GUN CONTROL 100 (Philip J. Cook ed., 1981) (hereinafter, "GUN CONTROL"). Moreover, under federal and[***29] state law, felons are unable to buy handguns legitimately from a licensed retail merchant. See 18 U.S.C. § 922(g)(1) (criminalizing possession by person, convicted of crime punishable by term of imprisonment of more than one year, of firearm in or affecting interstate commerce); Maryland Code (1957, 1996 Repl. Vol., 1998 Supp.) Article 27, § 442(h)(2)(i)(2) (precluding person convicted of felony from purchasing regulated firearm from licensed dealer). Consequently, felons steal handguns or buy them "off the street." See JOSEPH F. SHELEY & JAMES D. WRIGHT, NATIONAL INSTITUTE OF JUSTICE, GUN ACQUISITION AND POSSESSION IN SELECTED JUVENILE SAMPLES 6 (December 1993).

n1 See THE ANNALS OF THE AMERICAN ACADEMY OF POLITICAL AND SOCIAL SCIENCE, GUN CONTROL 100 (Philip J. Cook ed., 1981). 

n2 See GARY KLECK, TARGETING GUNS: FIREARMS AND THEIR CONTROL 92 (1997).

   As Professors Wright and Rossi summed up in their well-known study of convicts and handgun use, "at least four-tenths, and possibly as much[***30] as seven-tenths, of the most recent handguns possessed by [these convicts] were stolen weapons." WRIGHT & ROSSI, supra, at 207. Surveying over 1800 inmates in ten states about their guns, the professors found that 32% of the felons who possessed handguns when [*563] sent to prison had obtained their most recently acquired handgun by stealing it. Id. at 184. Another recent study deduced that theft is "probably the primary way that guns are transferred from the less criminal segments of the population to the more criminal segments." GARY KLECK, TARGETING GUNS: FIREARMS AND THEIR CONTROL 91 (1997). Professor Philip J. Cook, in his 1981 study on gun control, concluded that there "is a strong presumption that virtually all stolen guns end up in the hands of proscribed or dangerous people." GUN CONTROL, supra, at 100.

   The attraction of a stolen handgun to those individuals likely or intending to commit a crime is obvious. As Wright and Rossi stated,
 
A stolen firearm . . . can only be traced back to the last legal owner if the gun is subsequently used in a crime. . . . Untraceability is an important characteristic that felons look for in handguns, and stolen guns fit that definition[***31] very well. Even when other sources of supply are available, it is easy to see that there might be a preference among criminals for stolen equipment.
 
WRIGHT & ROSSI, supra, at 193. This idea has been echoed by other commentators: "Stolen guns are particularly attractive to people who intend to commit violent crimes with guns because they are virtually impossible to trace." GUN CONTROL, supra, at 100. The notion that it is not foreseeable that a stolen handgun will be used in violent crime is simply nonsense.

   Policy considerations are important in deciding whether a duty of care exists. The relevant policy considerations include (1) the moral blame attached to the defendant's conduct, (2) a desire to prevent future harm, (3) the extent of the burden on the defendant and the consequences to the community of imposing a duty to exercise care, and (4) the availability, cost and prevalence of insurance. See Village of Cross Keys, 315 Md. at 752, 556 A.2d at 1131 (citing Tarasoff v. Regents of University of California, 17 Cal. 3d 425, 551 P.2d 334, 342, 131 Cal. Rptr. 14 (1976)). Accordingly, in a case involving the [*564] death of a minor shot with a gun stolen from the unlocked[***32] truck of the defendant, the Montana Supreme Court found that the existence of a duty of care on the part of the original gun owner depends upon "the foreseeability of the risk and upon a weighing of policy considerations for and against the imposition of liability." Estate of Strever v. Cline, 278 Mont. 165, 924 P.2d 666, 670 (Mont. 1996) (citation omitted).

   The federal government and the State of Maryland have enacted elaborate statutory [**957] schemes designed to regulate the transfer of handguns. Passed by Congress in 1968, the Omnibus Crime Control and Safe Streets Act, among other things, prohibits possession of all firearms in or affecting interstate commerce by persons with a felony conviction. See 18 U.S.C. § 922(g)(1). The General Assembly has likewise restricted the purchase, rental, or transfer of regulated firearms to certain classes of persons. Article 27, § 442. The purpose of this legislation is to control and, if possible, eliminate gun violence. As discerned by this Court, it has been the public policy of this State, and the "dominant purpose" of the Legislature's enactment of Article 27, § 36B, n3 "to stop the alarming rise in the use of handguns in the commission [***33]of crimes of violence." Dillon v. State, 277 Md. 571, 584, 357 A.2d 360, 368 (1976) (citation omitted). See also Eldridge v. State, 329 Md. 307, 313, 619 A.2d 531, 534 (1993) (reiterating in reference to the passage of § 36B in 1972 "that the Legislature[,] spurred by a dramatic increase in the number of crimes perpetrated with handguns and a concomitant increase in the number of deaths and injuries caused by persons carrying handguns on the streets who were inclined to use them in criminal activity, enacted strong handgun control legislation." (internal quotation marks and citations omitted)). Accordingly, the State has a strong interest in preventing theft of handguns by those persons that are ineligible to buy guns.

n3 Article 27, § 36B proscribes the wearing, carrying, or transporting of a handgun, and the use of a handgun in the commission of crime.

 
   In Maryland, a person may not legally purchase a firearm unless that person is at least 21 years of age, Article 27, [*565] § 442(h)(2)(vi), and has not [***34] been convicted of a crime of violence, a felony or a misdemeanor that carries a statutory penalty of more than two years. Id. at (h)(2)(i)(1)-(3). The purchaser of a firearm may not be a fugitive from justice, a habitual drunkard or an addict or habitual user of any controlled dangerous substances. Id. at (h)(2)(ii)-(iv). Finally, the purchaser cannot have spent more than thirty consecutive days in any medical institution for treatment of a mental disorder unless certified by a physician as capable of safely possessing a firearm, id. at (h)(2)(v), nor be a respondent against whom a current non ex parte civil protective order has been entered under § 4-506 of the Family Law Article (1984, 1999 Repl. Vol.) of the Maryland Code. Id. at (h)(2)(vii). In addition, a gun owner in Maryland who fails to secure adequately a firearm in a manner which would reasonably prevent possession by an unsupervised minor is subject to criminal liability. See Article 27, § 36K. n4 In weighing the benefits against the burdens, dealers faced with the prospect of liability in tort for negligent storage of handguns will be more careful in the storage of those guns held out for sale to the[***35] general public. Cf. Markus Boser, Note, Go Ahead, State, Make Them Pay: An Analysis of Washington D.C.'s Assault Weapon Manufacturing Strict Liability Act, 25 COLUM. J.L. & SOC. PROBS. 313, 337 (1992) (arguing that firearms dealers faced with prospect of unlimited liability from stolen handgun have additional incentive to prevent theft, and would guard inventory much more carefully than if simply protecting stock).

n4 Article 27, § 36K provides, in pertinent part, as follows:

   (b) Prohibited acts -- An individual may not store or leave a loaded firearm in any location where the individual knew or should have known that an unsupervised minor would gain access to the firearm.

    * * * * * *

   (e) Penalty. -- Any person who violates this section is guilty of a misdemeanor and upon conviction shall be fined not more than $1,000.

   Interwoven in its conclusion that no duty existed, the majority also essentially concludes that Respondent's actions (or [*566] inactions) are not the proximate cause of the injuries[***36] of Petitioner's decedent. Maj. op. at 7-9. I disagree. Generally, intervening acts of third parties will sever the chain of causation necessary to find negligence. If, however, the intervening negligent act was foreseeable, the original negligent actor is not freed from liability. See Matthews, 351 Md. at 578-79, 719 A.2d at 135-36; BG & E v. Lane, 338 Md. 34, 52, 656 A.2d 307, 316 (1995) ("The intervening negligence is not a superseding cause if it is reasonably foreseeable."); Penn. Steel Co. v. Wilkinson, 107 Md. 574, 581-82, [**958] 69 A. 412, 414-15 (1908). As we reiterated last term in Matthews:

    If the negligent acts of two or more persons, all being culpable and responsible in law for their acts, do not concur in point of time, and the negligence of one only exposes the injured person to risk of injury in case the other should also be negligent, the liability of the person first in fault will depend upon the question whether the negligent act of the other was one which a man of ordinary experience and sagacity, acquainted with all the circumstances, could reasonably anticipate or not. If such a person could have anticipated that the intervening act of negligence might, [***37] in a natural and ordinary sequence, follow the original act of negligence, the person first in fault is not released from liability by reason of the intervening negligence of another.
 
351 Md. at 578, 719 A.2d at 135-36 (quoting State v. Hecht Company, 165 Md. 415, 422, 169 A. 311, 313 (1933); Lane, 338 Md. at 52, 656 A.2d at 315; Hartford Ins. Co. v. Manor Inn, 335 Md. 135, 160, 642 A.2d 219, 231 (1994); Atlantic Mutual v. Kenney, 323 Md. 116, 131, 591 A.2d 507, 514 (1991). See also Robertson v. Sixpence Inns of America, 163 Ariz. 539, 789 P.2d 1040, 1047 (Ariz. 1990); Godesky v. Provo City Corp., 690 P.2d 541, 545 (Utah 1984).

   By the same token, the intervening criminal actions of another would not supersede the original negligence so long as they were foreseeable; for the crux of the matter is the foreseeability of those acts, not the level of intent with which they were conducted. As declared in the second restatement of the law of torts: [*567]

   The act of a third person in committing an intentional tort or crime is a superseding cause of harm to another resulting therefrom, although the [original] actor's negligent conduct created a situation which afforded [***38]an opportunity to the third person to commit such a tort or crime, unless the [original] actor at the time of his negligent conduct realized or should have realized the likelihood that such a situation might be created, and that a third person might avail himself of the opportunity to commit such a tort or crime.
 
RESTATEMENT (SECOND) OF TORTS, supra, § 448.

   For all the reasons stated above, I cannot join in the majority's view that there is no duty upon retail gun store owners to exercise reasonable care in securing handguns held out for sale to the public. I believe that the policy concerns cry out loudly in favor of recognizing a duty to the foreseeable plaintiff on the part of retail handgun sellers to exercise reasonable care in conducting their business so as to avoid the theft and subsequent criminal misuse of handguns.

   Chief Judge Bell and Judge Eldridge have authorized me to state that they join in the views expressed herein. 

PATRICIA MARTIN et al. v. BEVERAGE CAPITAL CORPORATION etal. 
No. 60, September Term, 1998
 
COURT OF APPEALS OF MARYLAND
 
353 Md. 388; 726 A.2d 728; 1999 Md. LEXIS 116

 March  25, 1999, Filed

   PRIOR HISTORY: [***1] Certiorari to the Court of Special Appeals (Circuit Court for  Anne Arundel  County). Joseph P. Manck JUDGE.

DISPOSITION: JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED. CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO AFFIRM THE JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY. COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID BY RESPONDENT. 
CASE SUMMARY 

PROCEDURAL POSTURE:  Petitioner appealed from the Court of Special Appeals (Maryland), which found, in petitioner's workers' compensation death benefits suit, that petitioner did not continue to be wholly dependent and eligible for continued workers' compensation death benefits.

OVERVIEW:  Petitioner's spouse was killed in an accident at work. Petitioner filed a dependency claim with the Workers' Compensation Commission (Commission). The Commission found her to be wholly dependent on her deceased husband and awarded her a weekly death benefit. Respondents filed an appeal, and the parties filed cross-motions for summary judgment. The court granted petitioner's summary judgment motion. Respondents made payment up to $45,000, the maximum initial award of compensation under Md. Code Ann. § 9-681(c)(2). They then discontinued benefits. Petitioner filed issues with the Commission, claiming that she continued to be wholly dependent and sought resumption of the weekly benefits. The Commission agreed with petitioner and ordered respondents to continue the weekly payments. On appeal, the court of Special Appeals held that petitioner was not wholly dependent on workers compensation benefits. Petitioner appealed. The court reversed, holding that a spouse, like petitioner, continued to be wholly dependent and eligible for continued workers' compensation death benefits when he or she had an ongoing dependence on the deceased workers' salary at the time of death.

OUTCOME:  The court reversed the finding that petitioner was not wholly dependent on workers' compensation benefits, finding she continued to be wholly dependent and eligible for continued death benefits because she had an ongoing dependence on her deceased husband's salary at the time of his death.

CORE TERMS:  dependency, claimant, deceased, workers' compensation, salary, death benefits, surviving spouse, spouse, average weekly wage, earning, weekly, total dependency, ongoing, consequential, time of death, earn, safeguard, occasional, partially, maximum, self-supporting, hypothetical, alive, wage, legislative intent, temporary, totally, deceased husband, current income, insurer

CORE CONCEPTS -  

Workers' Compensation & SSDI: Administrative Proceedings
Maryland's Workmen's Compensation Act is essentially social legislation and the provisions thereof are to be liberally construed. It must be interpreted to effectuate its general purpose and not strictly construed. Where there is a conflict in the Workmen's Compensation law, questions of construction should be resolved in favor of the claimant.

Governments: Legislation: Construction & Interpretation
When the court interprets a statute in order to effectuate its goal, the primary concern is to ascertain the intent of the legislature. The search for legislative intent begins, and ordinarily ends, with the words of the statute under review. A statute may contain ambiguous language, requiring the court to look beyond its plain language to discern intent. Where the statutory language is unambiguous and expresses a plain and definite meaning, however, the court need not look beyond the words of the statute itself to determine legislative intent.

Governments: Legislation: Construction & Interpretation
When interpreting a statute and determining legislative intent, the entire statutory scheme must be examined, as opposed to scrutinizing parts of a statute in isolation. Once the court determines that the statutory language at issue is in accordance with the legislature's intended purpose in enacting the statute, the court's task of interpretation is complete.

Workers' Compensation & SSDI: Administrative Proceedings: Judicial Review
See Md. Code Ann. § 9-745.

Workers' Compensation & SSDI: Administrative Proceedings: Judicial Review
In reviewing a workers' compensation ruling the court is to be guided by the general statutory command that the decisions of the Workers' Compensation Commission are entitled to prima facie correctness. A court, therefore, may reverse a commission ruling only upon a finding that its action was based upon an erroneous construction of the law or facts.

Workers' Compensation & SSDI: Benefit Determinations: Dependents
A workers' compensation claimant can be found a total dependent even though he or she has received occasional financial aid or benefits from sources other than the deceased worker. However, if these additional benefits constitute a consequential contribution to the claimant's own support, then a finding of total dependency will be defeated

Workers' Compensation & SSDI: Benefit Determinations: Dependents
In a workers' compensation dependency claim, a showing of actual dependency does not require proof that, without decedent's contributions, claimant would have lacked the necessities of life, but only that decedent's contributions were relied on by claimant to maintain claimant's accustomed mode of living.

Workers' Compensation & SSDI: Benefit Determinations: Dependents
The correct formula to apply in determining whether a claimant continues to be wholly dependent under Md. Code Ann. § 9-681(d) is to compare the amount earned by the worker at the time of death with the amount the surviving spouse earns after the $45,000 has been paid.

Workers' Compensation & SSDI: Administrative Proceedings: Judicial Review
Pursuant to Md. Code Ann. § 9-745 (b)(1), the decision of the Workers' Compensation Commission is presumed to be prima facie correct.

COUNSEL: ARGUED BY Michael D. Steinhardt (Forman & Steinhardt, P.A. of Glen Burnie, MD; Jonathan P. Kagan, Brassel & Baldwin, P.A. of Annapolis, MD) on brief FOR PETITIONERS.
 
ARGUED BY Alan M. Carlo (Leslie W. Gawlik, Mason, Ketterman & Morgan, P.A.; W. John Vernon, Lord & Whip, P.A., all of Baltimore, MD; Nancy L. Harrison, Law Offices of Nancy L. Harrison of Annapolis, MD) all on brief) FOR RESPONDENTS.

JUDGES: ARGUED BEFORE Bell, C. J.; Rodowsky, Chasanow, Raker, Wilner, Murphy, Joseph F., Jr. (specially assigned), and Thieme, Raymond G., Jr. (specially assigned), JJ. Opinion by Chasanow, J.

OPINIONBY: CHASANOW

OPINION: [**730] [*392]
 
Opinion by Chasanow, J.
 
In this appeal, we are asked to settle a dispute as to the identity of the payment source upon which a surviving spouse, in a workers' compensation death benefits case, must continue[*393] to be dependent in order to receive additional benefits after the initial maximum award of $45,000 has been paid out. Specifically, we are called upon to determine whether the phrase "continues to be wholly dependent," as found in Maryland Code (1991 Repl. Vol.), Labor and Employment Article, § 9-681(d), n1 refers to an ongoing dependency on the deceased worker's wages or the generally lesser amount of workers' compensation benefits. Patricia Martin (Petitioner) contends that in ongoing [**731] dependency determinations, "continues to be wholly[***2] dependent" refers to the standard of living the claimant experienced while the deceased spouse was alive; thus, she has a continued dependency on her husband's income at the time of his death. Beverage Capital Corporation (Beverage Capital), Sun Dun, Inc. (Sun Dun), and Great Distribution and Warehousing, Inc. (Great Distribution) (Respondents) n2 argue, in accordance with the Court of Special Appeals, that this phrase refers to the surviving spouse's continued dependency on the workers' compensation death benefits initially granted.

n1 Unless otherwise indicated, all statutory references are to Maryland Code (1991 Repl. Vol.), Labor and Employment Article.

n2 The other Respondents are Centennial Insurance Company, the workers' compensation insurer for Beverage Capital Corporation; American Manufacturers Mutual Insurance Company, the carrier for Sun Dun, Inc.; and Niagara Fire and Marine Insurance Company, the insurer for Great Distribution and Warehousing, Inc.

   For the reasons set forth below, we reverse[***3] the judgment of the Court of Special Appeals and affirm the Workers' Compensation Commission's (Commission) finding that Petitioner continued to be wholly dependent on her deceased husband within the meaning of the Workers' Compensation Act. In accordance with the Commission's interpretation of the statute and its findings of total dependency on the part of Petitioner, we hold that "continues to be wholly dependent" as found in § 9-681(d) refers to the surviving spouse remaining wholly dependent on the deceased spouse's income at the time of his or her death, and not the generally lesser amount of workers' compensation benefits. Thus, in [*394] making ongoing dependency determinations, the amount earned by the deceased worker at the time of death must be compared with the amount the claimant earns after the initial $45,000 has been received. In this case, Mr. Martin, the deceased spouse, earned an average of $200,000 per year prior to his accident. In stark contrast is the average salary of Mrs. Martin, the surviving spouse, of approximately $15,000 per year. After Mrs. Martin received the initial $45,000, she was still earning approximately $15,000 per year; therefore, she "continues[***4] to be wholly dependent" if her circumstances have not changed since the initial dependency determination was made.

   In the instant case, we need not attempt to define the exact point at which a claimant becomes either wholly or partially self-supporting after the initial $45,000 has been paid out. We leave to the legislature and future cases the task of determining the percentage or amount of the deceased spouse's average weekly income the claimant must earn in order to be found either wholly or partially self-supporting. With this holding we are adopting the Commission's interpretation and administration of the Act, which directs that Petitioner's workers' compensation death benefits will not suddenly cease when some specific point in time is reached, but will instead continue so long as her dependency remains; that is, until she remarries, dies, or the Commission decides that she has become wholly or partially self-supporting.

   I. BACKGROUND

   The facts of this case are undisputed. On January 15, 1992, Chester Martin was operating a helicopter in the course of his employment with Beverage Capital, Sun Dun, and Great Distribution when it malfunctioned and he was tragically killed. n3[*395] [***5] At the time of his death, Mr. Martin held various executive positions with Beverage Capital, Sun Dun, and Great Distribution. He was President and a shareholder of Beverage Capital, the sole owner of Sun Dun, and President of Great Distribution.

n3 There is a discrepancy in the record as to the exact date of Mr. Martin's death; it appears in some documents as January 15, and in others as January 14. In this opinion we cite the January 15 date, as this is the date the Workers' Compensation Commission referenced in its initial February 1, 1994, order.

   Mr. Martin was survived by Mrs. Martin. The Martins were married on July 2, 1976, and no children were born of the marriage. At the time of the marriage, Mrs. Martin was employed with Giant Food, earning approximately $18,000 per year. In June 1987, Mrs. Martin resigned her job with Giant Food because Mr. Martin wanted her to stay home and not work anymore. So that she would not have to work outside the home, the Martins agreed that Mr. Martin would pay Mrs. Martin[***6] a salary from Sun Dun, but that she would not have to actually do any work for the company. In 1991, Mrs. Martin began a sideline business selling business forms. Most of her customers were either businesses owned by her husband or accounts that he helped her obtain. Mrs. Martin received a salary from Sun Dun until January 15, 1992, the date of Mr. Martin's death. After this date, the salary payments stopped.

   For the two years prior to Mr. Martin's death, the Martins' finances were as follows:

1990      Chester Martin Income         $ 151,504
          Patricia Martin Income        38,895 (Sun Dun)
          Total Family Income           190,399 n4
1991      Chester Martin Income         $ 187,240
          Patricia Martin Income        38,852 (Sun Dun)
                                        4,246 (Her job selling forms)
          Total Family Income           230,338

 

n4 In addition, a distribution from Beverage Capital and dividends placed the Martins' total family income at $357,423.

 
[**732] A few months after Mr. Martin was killed, Mrs. Martin filed a dependency claim with the Commission stating that she was "wholly[***7] dependent" on her husband at the time of his death. A hearing was held on January 21, 1994, and on February 1, 1994, the Commission found Mrs. Martin to be "wholly dependent" [*396] on her deceased husband. Pursuant to Md. Code (1991 Repl. Vol., 1998 Supp.), Labor and Employment Art., § 9-602 ("Average weekly wage") and Code of Maryland Regulations (COMAR) 14.09.01.07, the Commission determined that Mr. Martin's average weekly wage was $2,850 per week ($148,200 per year). In accordance with the established formula, the Commission awarded Mrs. Martin $475 for 94.736 weeks as the weekly death benefit, retroactive to January 15, 1992. n5

n5 Pursuant to § 9-681(b), the death benefit "shall equal two-thirds of the average weekly wage of the deceased covered employee, but may not: (i) exceed the State average weekly wage...." In 1992, pursuant to Md. Code (1991 Repl. Vol., 1998 Supp.), Labor and Employment Art., § 9-603 ("State average weekly wage"), the State average weekly wage was $475, the maximum allowable under the statute. Pursuant to § 9-603, this State average weekly wage is adjusted on January 1 of each calendar year.

[***8]

   Respondents filed an appeal of the Commission's order to the Circuit Court for Anne Arundel County, challenging the finding of Mrs. Martin's total dependency. The appeal was decided through cross motions for summary judgment, and on February 3, 1995, the court granted Mrs. Martin's summary judgment motion finding that she was "wholly dependent" on her husband at the time of his death. Respondents did not appeal this ruling. In accordance with the Commission's award, by the end of January 1994, Respondents had made total payments to Mrs. Martin of $45,000, the maximum initial award of compensation under § 9-681(c)(2). They then discontinued the benefits.

   At this point, the issue became whether Mrs. Martin continued to be wholly dependent after she received the initial maximum benefits under § 9-681(d). Since 1993, Mrs. Martin has been working as an independent contractor, brokering products for Canada Dry Corporation to Giant Food. Her job is low paying with sporadic, non-established hours. Mrs. Martin has earned the following since Mr. Martin's death in January 1992: 1993 -- $11,249.50; 1994 -- 9,651.00; and 1995 -- $15,879.00. n6 Mrs. Martin filed issues with the Commission, [***9] [*397]claiming that she continued to be "wholly dependent" and seeking resumption of the weekly death benefit payments. On March 7, 1995, there was a hearing before the Commission and on August 22, 1995, it ruled that Mrs. Martin continued "to be wholly dependent on her deceased husband," and Respondents were ordered to continue paying the weekly benefits. On the same day as the ruling, the Respondents filed another appeal to the Circuit Court for Anne Arundel County, which was also decided through cross motions for summary judgment.

n6 In her brief to this Court, Mrs. Martin states that her income for 1994 was $7,763 and for 1995 it was $13,676. These figures vary from those cited in Beverage Capital v. Martin, 119 Md. App. 662, 672 n.7, 705 A.2d 1175, 1180 n.7 (1998), which we adopt in this opinion. We simply point out this inconsistency for the record; it is not necessary for us to resolve this factual dispute in order to uphold the Commission's August 22, 1995, order.

   On November 26, 1996, the circuit court[***10] granted Mrs. Martin's motion for summary judgment, affirming the Commission's order [**733] and mandating the continuation of benefits. Respondents appealed to the Court of Special Appeals, and on February 25, 1998, the court reversed the Commission's order. The Court of Special Appeals held that Mrs. Martin was "partially self-supporting and not 'wholly dependent' upon Workers' Compensation benefits within the meaning of LE § 9-681(d)." Beverage Capital v. Martin, 119 Md. App. 662, 683, 705 A.2d 1175, 1186 (1998)(emphasis added). The court stated that when analyzing whether a dependent is entitled to continue to receive workers' compensation death benefits following the initial award of $45,000, a determination must be made as to whether there is an ongoing dependency on the benefits, as opposed to an ongoing dependency on the deceased worker's salary at the time of his or her death.  Martin, 119 Md. App. at 672-75, 705 A.2d at 1181-82. The court went on to hold that because Mrs. Martin's employment was not temporary, occasional, or minor, and that her salary constituted approximately fifty percent of the workers' compensation death benefits, she was no longer "wholly[***11] dependent." Martin, 119 Md. App. at 682-83, 705 A.2d at 1185-86.

   [*398] Mrs. Martin filed a petition for certiorari in April, 1998, appealing the Court of Special Appeals' ruling on the issue of whether she remains wholly dependent. We granted certiorari. Specifically, we are asked to determine whether "continues to be wholly dependent" in § 9-681(d), as it pertains to a surviving spouse who has already received the maximum initial workers' compensation death benefits of $45,000, refers to a continued dependency on the standard of living, in the form of the deceased worker's salary, at the time of the fatal injury or on the generally lesser workers' compensation death benefits. As the Court of Special Appeals acknowledged, "the statute does not explicitly say upon what the surviving spouse must continue to be dependent." Martin, 119 Md. App. at 671, 705 A.2d at 1180.

   We reverse the Court of Special Appeals and hold that a spouse "continues to be wholly dependent," and therefore eligible for continuing workers' compensation death benefits, when he or she has an ongoing dependency on the deceased worker's salary at the time of death.

   II. DISCUSSION AND ANALYSIS

   A. Statutory Interpretation
 
Maryland's[***12] Workers' Compensation Act (the Act), which has been in existence for over eighty years, is intended to protect workers and their families from the various hardships that result from employment-related injuries.  Queen v. Agger, 287 Md. 342, 343, 412 A.2d 733, 734 (1980). Specifically, "it is designed to provide workers with compensation for loss of earning capacity resulting from accidental injury, disease or death arising out of and in the course of employment, to provide vocational rehabilitation, and to provide adequate medical services." Id. Moreover, as we stated in Bethlehem-Fairfield Shipyard v. Rosenthal, 185 Md. 416, 45 A.2d 79 (1945):
 
   "The Workmen's Compensation Act is essentially social legislation and the provisions thereof are to be liberally construed. It must be interpreted to effectuate its general purpose and not strictly construed. Where there is a [*399]conflict in the Workmen's Compensation law, questions of construction should be resolved in favor of the claimant." (Citations omitted).
 
185 Md. at 425, 45 A.2d at 83.

   When we interpret a statute in order to effectuate its goal, our primary concern is to ascertain the intent of the legislature.  Oaks [***13]  v. Connors, 339 Md. 24, 35, 660 A.2d 423, 429 (1995). Regarding this task, we have previously stated: "The search for legislative intent begins, and ordinarily ends, with the words of the statute under review." Schuman, Kane v. Aluisi, 341 Md. 115, 119, 668 A.2d 929, 931 (1995). A statute may contain ambiguous language, requiring us to look beyond its plain language to discern intent. Where the statutory language is unambiguous and expresses a plain and definite meaning, however, we need not look beyond the words of the statute itself to determine legislative intent. Marriott Employees v. MVA, 346 Md. 437, 445, 697 A.2d 455, 458 (1997).
 
[**734] In determining legislative intent, we must never lose sight of the overriding purpose and goal of the statute. As we observed in Kaczorowski v. Mayor of Baltimore, 309 Md. 505, 525 A.2d 628 (1987), the search for legislative intent is most accurately characterized "as an effort to 'seek to discern some general purpose, aim, or policy reflected in the statute.'" 309 Md. at 513, 525 A.2d at 632 (quoting Melvin J. Sykes, A Modest Proposal for a Change in Maryland's Statutes Quo, 43 MD. LAW REV. 647, 653 (1984)). In addition, when [***14]interpreting a statute and determining legislative intent, "the entire statutory scheme [must be examined], as opposed to scrutinizing parts of a statute in isolation." Williams v. State, 329 Md. 1, 15-16, 616 A.2d 1275, 1282 (1992).

   Once we determine that the statutory language at issue is in accordance with the legislature's intended purpose in enacting the statute, our task of interpretation is complete. See Gargliano v. State, 334 Md. 428, 435, 639 A.2d 675, 678 (1994)("If the language of the statute is plain and clear and expresses a meaning consistent with the statute's apparent [*400] purpose, no further analysis is ordinarily required."); Dickerson v. State, 324 Md. 163, 171-72, 596 A.2d 648, 652 (1991)("When the language is clearly consistent with the apparent purpose of the statute and the result is not absurd, no further research is required.").

   Thus, in interpreting and determining legislative intent, we must look to the plain language of the enactment, while keeping in mind its overall purpose and aim. Only when both of these tasks are done concurrently do we obtain an accurate interpretation of the statute. In light of these guiding principles of statutory interpretation, [***15] we now proceed to a discussion of the Maryland law that is pertinent to our analysis of § 9-681(d). As we do so, we must be keenly aware that "the Workers' Compensation statute should be liberally construed so that any ambiguity, uncertainty or conflict is resolved in favor of the claimant, in order to effect the statute's benevolent purposes." Linder Crane Service Co. v. Hogan, 86 Md. App. 438, 443, 586 A.2d 1290, 1292 (1991)(footnote omitted).
 
   B. Maryland Workers' Compensation Law
 
1. Background

   In Maryland, there is a two-step process for determining the initial receipt and continuation of workers' compensation death benefits. The first step is to determine whether the surviving spouse is entitled to receive benefits up to the $45,000 maximum. Step one is undertaken pursuant to § 9-679, "Determination of dependency," which provides in part:

   "Except as otherwise provided in this subtitle, the Commission shall determine all questions of partial or total dependency in accordance with the facts of each case that existed:

   (1) at the time of the occurrence of the accidental personal injury that caused the death of the covered employee."
 
See also § 9-681(a), [***16] (b), and (c). The second step comes into play after the initial $45,000 has been paid out. If the claimant petitions for further benefits, step two requires the [*401] surviving spouse to prove that he or she "continues to be wholly dependent" under § 9-681(d). In general, § 9-681, "Wholly dependent individuals," governs the payment of benefits to dependents following the death of a worker in the course of his or her employment. In particular, § 9-681(d) states:
 
"If a surviving spouse who was wholly dependent at the time of death continues to be wholly dependent after $45,000 has been paid, the employer or its insurer shall continue to make payments to the surviving spouse at the same weekly rate during the total dependency of the surviving spouse."

   The instant case concerns step two; specifically, whether the phrase "continues to be wholly dependent" refers to an ongoing dependency on the salary of the deceased worker at the time of his or her fatal injury (in essence, the standard of living experienced by the surviving spouse while the deceased employee was alive) or on the generally lesser workers' compensation death benefits. Most of this State's case law regarding this two-step[***17] process concerns step one, the determination [**735] of initial dependency. Only two reported Maryland appellate cases have looked at this second step of determining whether a claimant "continues to be wholly dependent." See Martin, supra, and Linder Crane, supra. While the "step one" cases are not directly on point with the particular issue in this appeal, they provide important guidance as to whether "continues to be wholly dependent" in § 9-681(d), step two, refers to an ongoing dependency on the deceased spouse's salary or on the benefits.

   The standard of review for workers' compensation proceedings is found in § 9-745, "Conduct of appeal proceedings." It provides in pertinent part:

   "(b) Presumption and burden of proof. -- In each court proceeding under this title:

   (1) the decision of the Commission is presumed to be prima facie correct; and 
 [*402]
 (2) the party challenging the decision has the burden of proof.
 
(c) Determination by court. -- The court shall determine whether the Commission: 

   (1) justly considered all of the facts about the accidental personal injury...;

   (2) exceeded the powers granted to it under this title; or
 
(3) misconstrued the[***18] law and facts applicable in the case decided.

    ***

   (e) Disposition. -- (1) If the court determines that the Commission acted within its powers and correctly construed the law and facts, the court shall confirm the decision of the Commission.

   (2) If the court determines that the Commission did not act within its powers or did not correctly construe the law and facts, the court shall reverse or modify the decision or remand the case to the Commission for further proceedings." (Emphasis added).

   Beyond the statutory language, further guidance of the standard of review may be found in Frank v. Baltimore County, 284 Md. 655, 399 A.2d 250 (1979), in which we stated:

   "In reviewing this ruling we, as was the circuit court, are to be guided by the general statutory command that 'the decisions of the Commission [are] entitled to prima facie correctness.' A court, therefore, may reverse a commission ruling only upon a finding that its action was based upon an erroneous construction of the law or facts...." (Citations omitted).
 
284 Md. at 658, 399 A.2d at 252 (quoting in part Md. Bureau of Mines v. Powers, 258 Md. 379, 382, 265 A.2d 860, 862 (1970)).
 
2. "Step One" [***19]  Cases

   Unfortunately, the Act does not define "total dependency" or "wholly dependent." Until June 1, 1947, when Chapter 895 [*403] of the Acts of 1947 took effect, the law presumed that a wife was wholly dependent on her husband. Meyler v. Mayor and City Council, 179 Md. 211, 215, 17 A.2d 762, 764 (1941). The 1947 amendments removed the presumptions of dependency and placed all matters of dependency within the discretion of the Commission. § 9-679. We have often stated, in accordance with § 9-679, that "the question of dependency is one primarily of fact to be decided in every case upon the facts of that case." Rosenthal, 185 Md. at 420, 45 A.2d at 81.

   In 1941, this Court stated that the test of dependency is "not whether a claimant was capable of supporting himself without the earnings of the workman, but whether he did in fact rely upon such earnings for his livelihood, in whole or in part, under circumstances indicating an intent on the part of the workman to furnish such support." Meyler, 179 Md. at 217, 17 A.2d at 765. In 1958, we defined a "dependent" within the meaning of the Act as "one who relies wholly or in part upon a workman for the reasonable necessities of[***20] life at the time of his accidental injury. A legal or moral obligation to support some one does not create dependency in the absence of actual support." Mario Anello v. Dunn, 217 Md. 177, 180, 141 A.2d 731, 733 (1958)(emphasis added).

    Meyler, supra, was one of our early cases in which we examined the issue of dependency in the workers' compensation death benefits context. In Meyler, the claimant, who was the stepdaughter of the deceased, and her stepfather agreed that she would stay [**736] home and take care of her invalid mother and the home.  179 Md. at 213, 17 A.2d at 763. Even though the claimant had previously held a factory job and was capable of supporting herself, we held that "there is no provision in the statute requiring that a person must be incapable of supporting himself before he can be dependent, and there is no reason to hold that dependency should be so restricted in its meaning." Meyler, 179 Md. at 217, 17 A.2d at 765. We further stated that the "mere ability to earn a livelihood does not necessarily preclude a person from being a dependent." Id. See also Superior Builders, Inc. v. Brown, 208 Md. 539, 543, 119 A.2d 376, 378 (1956)("In construing[***21] the Act, [*404] the courts do not demand that a claimant must show destitution to obtain an award as a total dependent."). We held that the evidence was sufficient for the jury to find that the claimant was either totally or partially dependent on the deceased and ordered a new trial. Meyler, 179 Md. at 219, 17 A.2d at 766.

   In the 1944 case of Larkin v. Smith, we examined the words "wholly dependent" as delineated in the Act.  183 Md. 274, 37 A.2d 340 (1944). In this case, the claimant alleged that she was dependent on her son for financial support, even though she sometimes sold eggs from her hens, ate occasional free meals at the restaurant where she previously worked, and intermittently received clothing from her former employer.  Larkin, 183 Md. at 276-77, 37 A.2d at 341. The employer/insurer (appellants) maintained that the jury should be instructed that "if they should believe from the evidence 'that the claimant received any support from any source other than from [her son] at the time of his injury'" then the claimant could not be found wholly dependent on her deceased son. Larkin, 183 Md. at 278, 37 A.2d at 342 (emphasis added).

   In finding the claimant to be[***22] "wholly dependent" on her deceased son, we noted that while these words were not precisely defined under the Act, other jurisdictions had adopted what appeared to be the following universal rule as to their meaning:

   "Total dependency exists where the dependent subsists entirely on the earnings of the workman; but in applying this rule courts have not deprived claimants of the rights of total dependents, when otherwise entitled thereto, on account of temporary gratuitous services rendered them by others, or on account of occasional financial assistance received from other sources, or on account of other minor considerations or benefits which do not substantially modify or change the general rule as above stated.'" (Emphasis added).
 
Larkin, 183 Md. at 280, 37 A.2d at 343 (quoting Bloomington-Bedford Stone Company v. Phillips, 65 Ind. App. 189, 116 N.E. 850, 852 (Ind. App. 1917)). See also Johnson v. Cole, 245 Md. 515, 520-21, [*405] 226 A.2d 268, 271 (1967)(stating that aid or benefits from other sources will not negate a finding of total dependency so long as they "do not substantially affect or modify [the dependent's] status toward the deceased employee").
 
   In adopting[***23] the above rule, we stated that we "did not think that the legislature intended such an illiberal construction of the word 'wholly' as contended ... by the appellants" and concluded that the Act "must be interpreted to effectuate its general purpose, and not by strict rules of construction." Larkin, 183 Md. at 282, 37 A.2d at 344.

   Similarly, in Rosenthal, supra, we also found that the claimant was totally dependent on her deceased husband, even though she was employed at the time of her husband's death. In examining the particular facts of the case, as we are required to do pursuant to § 9-679, we found that the claimant was working outside the home "because her boy was in the Navy and she was worried and wanted to occupy her mind ... until her son came home...." Rosenthal, 185 Md. at 423, 45 A.2d at 82. Therefore, we held that "the claimant's work was only temporary or occasional, and that her intention was to depend solely on her husband's income in the future as she had in the past. So finding, the jury could decide that there was total dependency within the meaning of the Act." Rosenthal, 185 Md. at 426, 45 A.2d at 84 (emphasis added).  See also Harvey [***24]  v. Roche & Son, 148 Md. 363, 129 A. 359 (1925) (recognizing that claimant, who though separated from her spouse at the time of his [**737] death but received monthly support money from him, could be found a total dependent even though she collected weekly rent from a boarder).

   Thus, as the above cases illustrate, a claimant can be found totally dependent even though he or she has received occasional financial aid or benefits from sources other than the deceased employee. Later cases somewhat restricted the above holdings, however, with the development of the "consequential contribution" test, under which total dependency status may be denied to dependents who make a "consequential contribution" to their own support. Specifically, this test states that while a wholly dependent claimant "may receive [*406] temporary gratuitous services, occasional financial assistance or other minor benefits from sources other than the deceased workman ... he must not have had a consequential source or means of maintenance in addition to what is received out of the earnings of the deceased." Mullan Construction Co. v. Day, 218 Md. 581, 586, 147 A.2d 756, 759 (1959)(emphasis added). n7

n7 While we first mentioned the consequential contribution test in Larkin v. Smith, 183 Md. 274, 280, 37 A.2d 340, 343 (1944), we did not apply it until Mario Anello v. Dunn, 217 Md. 177, 183, 141 A.2d 731, 734 (1958).

[***25]

    Mario Anello, supra, was the first case to apply the consequential contribution test. In Mario Anello, Mrs. Dunn, the claimant, had pooled her significant earnings with that of her husband's for several years and used them to support the family.  217 Md. at 180, 141 A.2d at 733. In finding Mrs. Dunn to be partially dependent, we held that we were "unable to say that a jury could properly find, or infer, that her earnings were not a consequential part of her maintenance; therefore she was not wholly dependent upon her husband." 217 Md. at 183, 141 A.2d at 734.

    Mullan Construction, supra, following on the heels of Mario Anello, supra, also involved a wife pooling her earnings with her deceased husband. As in Mario Anello, we found that Mrs. Day was partially, not totally, dependent on her deceased husband, as she made almost fifty percent of her husband's salary. Mullan Construction, 218 Md. at 588, 590, 147 A.2d at 760, 761. We held that:

   "Where the earnings of [Mrs. Day] were substantial, where she did not subsist solely out of the earnings of her husband, and where she either could not or would not account for more than half of her net earnings, she cannot[***26] establish the status of a total dependent by merely claiming she did not pool her earnings with those of her husband."
 
Mullan Construction, 218 Md. at 589, 147 A.2d at 760.

   In yet another pooled income case, Toadvine v. Luffman examined whether the deceased employee's two minor children[*407] were totally dependent on him at the time of his death.  14 Md. App. 333, 286 A.2d 790 (1972). The court applied the consequential contribution test and found that because the "mother's contributions were a substantial source, about 40%, of the total funds," the children were not totally dependent on their deceased father.  Toadvine, 14 Md. App. at 346-47, 286 A.2d at 797. The court stated that "the mother's contributions were regular as distinguished from occasional, permanent as distinguished from temporary, substantial as distinguished from minor." Toadvine , 14 Md. App. at 346, 286 A.2d at 797 (emphasis added). See also Simmons v. B & E Landscaping Co., 256 Md. 13, 15, 259 A.2d 314, 316 (1969)(upholding the trial judge's conclusion that "'the mother's contribution to this family [cannot] be deemed either occasional or inconsequential. She ... was and is the bulk of the [***27]support of her children.'").

   Thus, as these "step one" cases demonstrate, a claimant can be found a total dependent even though he or she has received occasional financial aid or benefits from sources other than the deceased worker. However, if these additional benefits constitute a consequential contribution to the claimant's own support, then a finding of total dependency will be defeated.
 
"[**738] 3. "Step Two" Cases
 
As mentioned, only two reported appellate cases have examined the issue of whether a claimant "continues to be wholly dependent" after the sum of $45,000 has been paid. See Martin, supra, and Linder Crane, supra. Linder Crane does not fully address the specific issue posed in the instant case, and we need not determine whether we would adopt all aspects of its holding. Linder Crane, however, does lend support to our, and the Commission's, interpretation of § 9-681(d), which is that "continues to be wholly dependent" refers to the claimant continuing to be dependent on the salary of the deceased worker at the time of death. [*408]

   In Linder Crane the claimant was the surviving spouse of the deceased employee, who was killed in an automobile[***28] accident during the course of his employment.  86 Md. App. at 440, 586 A.2d at 1291. During their twenty-year marriage, Mr. Hogan supported the family and Mrs. Hogan was a homemaker. Id. Mrs. Hogan began a paying job two months after her husband's death, due to financial necessity brought on by a dispute as to death benefit compensability.  Linder Crane, 86 Md. App. at 440-41, 586 A.2d at 1291. Eventually, Mrs. Hogan was determined to be wholly dependent on her husband and was awarded the maximum initial workers' compensation death benefits. Linder Crane, 86 Md. App. at 441, 586 A.2d at 1291. She quit her job approximately two weeks after receiving the $45,000. Id. The benefit payments were stopped after the $45,000 had been paid, so Mrs. Hogan filed a claim to have the benefits reinstated. Id. The Commission reinstated her benefits and the circuit court affirmed, holding: "It was undisputed that appellee was not working at the time the Commission continued her benefits and that she did not work during her marriage." Linder Crane, 86 Md. App. at 442, 586 A.2d at 1292. Appeal was then made to the Court of Special Appeals.

   The Court of Special Appeals affirmed[***29] the circuit court's holding that Mrs. Hogan's workers' compensation death benefits should be reinstated. Linder Crane, 86 Md. App. at 447, 586 A.2d at 1294. After finding that Mrs. Hogan was wholly dependent on Mr. Hogan for the twenty years prior to his fatal accident, and that she only worked after his death for thirty-three months due to financial necessity, the court held that Mrs. Hogan remained wholly dependent on Mr. Hogan.  Linder Crane, 86 Md. App. at 443-45, 586 A.2d at 1292- 94. In examining the issue of Mrs. Hogan's ability to earn money outside of the home, the court referenced Meyler for the proposition that simply because a "claimant has the ability to be self-supporting does not preclude her from being wholly dependent."  Linder Crane, 86 Md. App. at 444, 586 A.2d at 1293. In support of its finding of Mrs. Hogan's total dependency, the court focused on the private marital agreement [*409] between the Hogans, stating: "[Mrs. Hogan] and Joseph agreed that she should ... stay home ... while he supported the family. This was the arrangement at the time of Joseph's death." Id. (emphasis added). Basing its holding on a "benevolent reading" of the statute, [***30] the court held that:

   "Frances' ability to work will not prevent her from being wholly dependent. Moreover, the fact that Frances actually earned a salary for thirty-three months will not prevent her from continuing to be deemed wholly dependent, once she terminated her employment. The courts have been reluctant to deprive a claimant of the rights of a wholly dependent, when otherwise entitled thereto, on account of temporary employment which was not intended to alter the dependency of the claimant on the worker." (Emphasis added).
 
Linder Crane, 86 Md. App. at 444, 446, 586 A.2d at 1293, 1294. The court further held that Mrs. Hogan's pressure to obtain outside employment due to necessity did not "alter the arrangement that existed prior to Joseph's death -- that he supported the family and she maintained the home." Linder Crane, 86 Md. App. at 446, 586 A.2d at 1294.

   In ordering the continuation of benefits to Mrs. Hogan, the Linder court did not state explicitly what the surviving spouse continued to be dependent on -- the workers' compensation death benefits or Mr. Hogan's salary at the time of his fatal accident. We question, however, the Court of Special Appeals' [***31]statement in Martin that "the Linder [**739] Crane Court looked to the income Mrs. Hogan received from Workers' Compensation benefits to determine whether she continued to be totally dependent after the amount of $45,000 had been paid." 119 Md. App. at 677, 705 A.2d at 1183. On the contrary, we can readily infer from the court's emphasis on the agreement between the Hogans that existed during their lengthy marriage, along with our prior case law and the need for a liberal construction of the Act favoring the claimant, that the Linder Crane court found Mrs. Hogan "continued to be wholly dependent" on the salary of Mr. Hogan at the time of his death. [*410]

   C. The Law as Applied to This Case
 
In applying the Maryland law discussed supra, while concurrently reading the Act liberally in order to effectuate its benevolent purpose of compensating injured workers and their families, we hold that Mrs. Martin "continues to be wholly dependent" under § 9-681(d) on Mr. Martin's income at the time of his fatal accident. For the reasons discussed below, we find that the Court of Special Appeals erred in holding that Mrs. Martin could only continue to receive compensation if she had an ongoing[***32] dependency on the death benefits. As we will elaborate infra, Mr. Martin, the deceased spouse, earned an average of $200,000 per year while he was alive. In stark contrast is the average salary of Mrs. Martin, the surviving spouse, of approximately $15,000 per year. After Mrs. Martin received the initial $45,000, she was still earning approximately $15,000 per year; therefore, she "continues to be wholly dependent" if her circumstances have not changed since the initial dependency determination was made.

   Respondents assert that § 9-681(d) is ambiguous as to the identity of the payment source upon which the surviving spouse must continue to be dependent, but we find no ambiguity in the statute. Indeed, the plain language of § 9-681(d) itself states "at the time of death" when discussing the initial determination of dependency. Therefore, if the Act makes the awarding of initial benefits dependent on the salary of the deceased spouse at the time of death (see § 9-681(b)), then it is only logical and consistent that determinations of ongoing dependency under § 9-681(d) should also depend on the salary of the deceased spouse. In addition, even if we did find ambiguity[***33] in the language of § 9-681(d), we must resolve all such ambiguities in favor of the claimant, Mrs. Martin, as it was the intent of the legislature that the Act be liberally construed to effect its broad remedial goal. As such, we must also examine § 9-681(d) in context of the Act's overall remedial scheme, not in isolation. For example, § 9-681(a), which empowers the Commission to decide whether the claimant is wholly or partially dependent on the deceased employee after the worker's death, provides: "If there are individuals who [*411] were wholly dependent on a deceased covered employee at the time of death resulting from an accidental personal injury or occupational disease, the employer or its insurer shall pay death benefits in accordance with this section." (Emphasis added). Section 9-681(c), which governs the duration of benefits, states that death benefits are to be paid "(1) for the period of total dependency; or (2) until $45,000 has been paid." (Emphasis added).

   Thus, when subsection (d) is read within the overall context of § 9-681, there is no language to indicate that the issue of total dependency after the $45,000 has been paid should focus on a continued dependency[***34] "on the benefits." To the contrary, if subsection (a) is read as a preamble to the rest of the section, including subsection (d), it plainly states that the test for determining total dependency is "individuals who were wholly dependent on a deceased covered employee at the time of death." The logical inference from this reading is that for a claimant to continue to be wholly dependent, he or she must have an ongoing dependency on the deceased worker's salary at the time of death.

   In the instant case, pursuant to § 9-679, Mrs. Martin's dependency was determined at the time of her husband's death, which was the same time as the accident. In the recent case of Meadowood v. Keller, 353 Md. 171, 725 A.2d 563, 1999 Md. LEXIS 107 (1999), we also construed dependency in the Act to turn on the timing of the event giving rise to the benefit. Mrs. Keller was injured in a job-related accident [**740] and later died of an unrelated cause. At the time of the accident, her son was not financially dependent on her, but he later became so after he left his job to live with and take care of her. Using § 9-679, which covers death benefits, as a guide in construing Md. Code (1991 Repl. Vol., [***35] 1998 Supp.), Labor and Employment Art., § 9-632, which deals with permanent partial disability benefits, we held that the dependency of Mrs. Keller's son turned on his circumstances at the time of her accident and not at the time of her death.  Keller, 353 Md. at 187, 725 A.2d at 571, 1999 Md. LEXIS 107 at *28-29. We noted that § 9-679 mandates application of the facts existing at the time of the accident that caused the death of the employee in [*412]dependency determinations and held that dependency for the purposes of § 9-632 must also be determined as of the date of the accident.  Keller, 353 Md. at 177-178, 725 A.2d at 566-567, 1999 Md. LEXIS 107 at *10-12. This Court stated: "We are unable to discern any evidence that the Legislature desired to have the term 'dependent' mean one thing for purposes of the death benefits and another for purposes of the survived benefit, nor have we been able to determine any compelling reason why it would have wanted to have different standards apply."  Keller, 353 Md. at 187, 725 A.2d at 571, 1999 Md. LEXIS 107 at *28-29. Like we held in Keller, we believe that § 9-681(d) should be construed to turn on the timing of the event[***36] giving rise to the benefit.

   Respondents further propose that, in determining whether Mrs. Martin "continues to be wholly dependent," we should look at Mrs. Martin's current income and compare it to the maximum benefits available under the statewide average weekly wage pursuant to Md. Code (1991 Repl. Vol., 1998 Supp.), Labor and Employment Art., § 9-602 and COMAR 14.09.01.07. Respondents maintain that if Mrs. Martin's current income constitutes a significant percentage of the statewide average weekly wage, then she is no longer dependent on the workers' compensation death benefits and is therefore not wholly dependent. We decline to adopt Respondents' proposed formula for calculating whether a claimant "continues to be wholly dependent" under § 9-681(d). Rather, the correct formula to apply in making ongoing dependency determinations is to compare the amount earned by the worker at the time of death with the amount the surviving spouse earns after the $45,000 has been paid.

   In Martin, the court based its holding in part on a detailed hypothetical regarding two surviving spouses whose deceased spouses made very differing salaries when they were alive, resulting in a more frequent[***37] finding of "continues to be wholly dependent" on the part of the wealthier surviving spouse. n8 The court stated:

n8 The hypothetical reads as follows:

   "Suppose Spouse 1 and Spouse 2 are wholly dependent on the incomes earned by their husbands and both husbands die on the same date. Spouse 1's husband earns $320,000 per year and Spouse 2's husband earns $40,060 annually. Both surviving spouses receive $475 per week in death benefits pursuant to [] § 9-681. If, after the insurer has paid $45,000 in death benefits to both Spouse 1 and Spouse 2, both get a job paying $15,000 per year, Spouse 2, under [Mrs. Martin's] formulation, would have a much more difficult time convincing the Commission that she continues to be wholly dependent because her $15,000 annual income is 37.5 percent of the amount that her husband earned when he lived. On the other hand, Spouse 1, whose husband made eight times as much as Spouse 2's husband, could argue that her current income is only 5 percent of her husband's former salary -- and thus, in comparison, minuscule."
 
Martin, 119 Md. App. at 673, 705 A.2d at 1181.

[***38] [*413]

   "If we were to adopt [Mrs. Martin's] reading of [] § 9-681(d), persons whose spouses earn huge incomes would be more likely to be able to convince the Commission that they continue to be wholly dependent than those with modest income. This would produce an illogical and unjust result and one at odds with the purpose of the Act."
 
Martin, 119 Md. App. at 673, 705 A.2d at 1181.

   We do not feel it necessary to refute the court's hypothetical point-by-point, but instead rely on four safeguards to demonstrate the hypothetical's fallacious reasoning. Before we discuss the safeguards, however, we want to first view the hypothetical from a different perspective. The hypothetical can easily be seen as penalizing the spouse whose husband earned more money, in that she will receive only eight percent of her deceased [**741]husband's average weekly wage in workers' compensation death benefits as compared to the spouse with the more modest income, who will be awarded sixty-two percent of her husband's salary. In examining the instant case, it was found that two-thirds of Mr. Martin's average weekly wage of $2,850 at the time of his death was $1,881. Therefore, Mrs Martin's weekly death[***39] benefit was $475, which was the maximum permitted under the Act in 1992. See footnote 5, supra. As such, Mrs. Martin was only receiving seventeen percent of her husband's full weekly salary in [*414] workers' compensation death benefits; a figure nowhere near her husband's average weekly wage at the time of his death.

   At this juncture, we wish to emphasize that we are not determining a specific income percentage or amount at which a surviving spouse achieves a self-supporting status. We simply use percentages in this opinion to illustrate the major income disparity between Mrs. Martin's current financial situation and what her lifestyle was when Mr. Martin was alive. In accordance with the Act and the manner in which the Commission administers it, we maintain that Mrs. Martin's dependent status, either total or partial, will not abruptly end at a particular point in time, say after she has received death benefits for a certain number of days, weeks, months, or years. Instead, she will continue to receive benefits so long as her dependency on her deceased husband's salary remains. Under the current schema, Mrs. Martin's benefits will continue until she remarries, dies, or the Commission[***40] determines that she has become either wholly or partially self-supporting.

   We now turn to the safeguards that protect against the unjust awards predicted in the Court of Special Appeals' hypothetical by our adoption of an interpretation of § 9-681(d) based on the deceased worker's salary. The first safeguard is the statutory cap on compensation. The cap obviates the Court of Special Appeals' concern that a wealthy claimant will reap an unjust award. Under § 9-681(b), the weekly benefit may not "exceed the State average weekly wage." We need look no further than the instant case to see the curative effect of this safeguard. Mr. Martin's average weekly wage was found to be $1,881 (two-thirds of $2,850), yet Mrs. Martin was only receiving the statewide average weekly wage of $475, which is the maximum allowed under the statute. Therefore, Mrs. Martin's average weekly income was reduced by $1,406, a seventy-five percent reduction.

   The second safeguard is § 9-679, which requires that initial dependency determinations be based on the particular facts of each case. Section 9-679's mandate, that the Commission must examine each case on its own unique set of facts, [*415] prevents the perceived[***41] unfairness and injustice that Respondent, and the Court of Special Appeals, maintains would result if we determine that "continues to be wholly dependent" refers to an ongoing dependency on the deceased worker's salary rather than the benefits. The particular facts and circumstances include the wide range of salaries that may be involved from case to case. For this reason, it would be inappropriate for us to adopt a specific percentage under which a dependent can earn income, relative to the deceased worker's salary, and still be found "wholly dependent" by the Commission. In this case, Mrs. Martin earns approximately eight percent of Mr. Martin's yearly income at the time of his death. On its own, Mrs. Martin's approximately $15,000 annual salary is insufficient to compensate her as contemplated by the legislature in enacting the Workers' Compensation Act. Modifying the facts of the instant case and applying them to our own hypothetical, say that Mr. Martin was earning $500,000 at the time of his death. If we take eight percent of $500,000, Mrs. Martin's annual salary would be $40,000 per year. Now when we apply § 9-679 and examine the particular facts and circumstances of this[***42] hypothetical, we observe that the Commission could well determine that Mrs. Martin is not wholly dependent, even though her $40,000 salary would also constitute a mere eight percent of Mr. Martin's annual salary at the time of his death.

   The third safeguard is the consequential contribution test, discussed in Part II.B.2. supra, which ensures that total dependency will not be found if the claimant makes a [**742] substantial contribution to his or her own support. In applying the consequential contribution test to this case, it is clear that Mrs. Martin's earnings with Canada Dry do not constitute a "consequential contribution" to the family income. First, when we apply the correct formula, detailed supra in this section, and compare Mrs. Martin's current income against Mr. Martin's salary at the time of his death, it is obvious that the percentage of Mrs. Martin's earnings when compared to Mr. Martin's does not rise to the level of those found in the Mario Anello, Mullan Construction, and Toadvine cases, [*416] discussed supra, so as to constitute a consequential, substantial contribution. As mentioned, Mr. Martin's weekly wage was $2,850. After business expenses were deducted, [***43] Mrs. Martin's approximate weekly wages from her Canada Dry job were as follows for the three years after her husband's fatal injury: 1993 -- $216 ($11,249.50 divided by 52); 1994 -- $186 ($9,651 divided by 52); and 1995 -- $305 ($15,879 divided by 52). Thus, in 1993, Mrs. Martin earned eight percent of Mr. Martin's full weekly wage; in 1994, she earned seven percent; and in 1995, she earned eleven percent. Second, even if we apply the formula that the Court of Special Appeals adopted and compare Mrs. Martin's current income to the statewide average weekly wage, we see that her weekly income is significantly less than the statewide average weekly wage of $475 in 1992, a figure that increases every year and thus makes the disparity even greater today. From the above weekly wage calculations, it is apparent that Mrs. Martin is not earning more than the average worker in Maryland, nor anywhere close to this average weekly wage. Moreover, there has been little change in Mrs. Martin's financial circumstances since the time when the Commission initially found her to be "wholly dependent" on Mr. Martin in its initial death benefit compensation award of February 1, 1994. Her personal [***44]income remains fairly static.

   The final safeguard that exists to curb unfair award determinations is found in § 9-681(j). It states in pertinent part:

   "(j) Continuing jurisdiction of commission. -- The Commission has continuing jurisdiction to:

   (1) determine whether a surviving spouse or child has become wholly or partly self-supporting;

   (2) suspend or terminate payments of compensation."
 
Therefore, should Mrs. Martin's financial circumstances change down the road and she becomes either wholly or partially self-supporting, the Commission has the authority to reduce or eliminate her benefits as necessary.

   In many cases there may well be a discrepancy in the amount of ultimate benefits awarded to a person who is [*417] wealthy and a person who is not. In general, workers' compensation benefits are based on the worker's income, so there will naturally be a variable in how much claimants receive. However, the unfairness the court says will result if we adopt an interpretation of continued dependency based on the deceased worker's salary, rather than on the death benefits, is negated by application of the above four safeguards. The (1) built-in protection of the statutory cap; (2) [***45] the analysis of dependency determinations on a case-by-case basis pursuant to § 9-679; (3) the application of the "consequential contribution" test after the initial $45,000 has been paid; and (4) the exercise of Commission jurisdiction under § 9-681(j), as necessary, all will result in findings that are consistent and in accordance with the benevolent purpose of the Act. Finally, any unfairness that results which is beyond the reach of these safeguards is for the legislature to resolve. 

   We now turn to a discussion of Linder Crane, which the Respondents misconstrue. In finding that Mrs. Martin continues to be wholly dependent on Mr. Martin's income at the time of his death, we note that the Martins, like the Hogans in Linder Crane, had a private marital agreement that she would not work outside the home. This agreement was in place for the last several years of their marriage, including at the time of Mr. Martin's death; thus, it is clear that he intended to provide indefinite financial support for his wife while she took care of the household. Like Mrs. Hogan in Linder Crane, Mrs. Martin sought employment due to the financial [**743] circumstances brought about by her husband's[***46] death.

   Respondents point to the "temporary employment" language found in Linder Crane and maintain that because Mrs. Martin's present job with Canada Dry is not temporary, as Mrs. Hogan's was found to be, she cannot continue to be wholly dependent on Mr. Martin. While it is true that Mrs. Martin's position with Canada Dry may not be temporary or occasional, it is undisputed that her income, which has never exceeded $16,000, is a mere fraction of what the Martin family income was when her husband was alive. Any contributions Mrs. Martin made to the family income, both while Mr. Martin[*418] was alive and also after his death, were minor, insubstantial contributions. Mrs. Martin's job selling business forms, which she had while Mr. Martin was alive, was purely a sideline business that yielded no substantial income ($4,246 in 1991). Moreover, her clients for this sideline business derived almost exclusively from her husband's business contacts. In addition, the salary she received from Sun Dun was purely gratuitous and did not in any way alter her dependent status on her husband.

   Therefore, we can analogize the "temporary employment" scenario in Linder Crane to the major disparity[***47] that exists between Mrs. Martin's current income and what it was before Mr. Martin died. In so doing, it is obvious that Mrs. Martin's low-paying job with Canada Dry, with its sporadic, non-established hours, was "not intended to alter [her] dependency ... on [Mr. Martin]." See Linder Crane, 86 Md. App. at 444, 586 A.2d at 1293. "Even total dependency is consistent with the receipt of some other income, if unsubstantial , or sporadic." 2A ARTHUR LARSON, LARSON'S WORKMEN'S COMPENSATION LAW § 63.13, at 11-134 (1989)(footnote omitted).

   On a policy level, if we were to adopt Respondent's interpretation of § 9-681(d) there would be a disincentive for a surviving spouse, or any dependent, to work and be a productive member of society; instead, he or she could earn more money by not working and staying home. At the present time, Mrs. Martin is not earning more than the benefits, so if she had simply quit her job prior to the second workers' compensation hearing, she would have unquestionably been granted continuing death benefits. Perhaps this "all or nothing" facet of the Act is something that the legislature should address, but until it does should we tell people in Mrs. Martin's[***48] situation to simply quit their jobs in order to retain their benefits? Rather than being punished by having her benefits discontinued, Mrs. Martin should be commended for working. Efforts toward self-sufficiency should be encouraged, not discouraged. [*419] We agree with Judge Wolff's factual finding, and the Commission's finding and interpretation of the statute, that Mrs. Martin's current income level is "not sufficient to provide her with the basic necessities contemplated by the Workers' Compensation statute." While it may appear unfair to some, the reality of our capitalist system is that people earn vastly different amounts of money depending on their education, training, background, and level of industriousness, among other factors. That reality is reflected in the Act's recognition that even with the application of the safeguards discussed supra, employers/insurers must still pay higher benefits to those employees, or their dependents, for whom they have elected to compensate at a higher salary. n9 The fact is [**744] that Mrs. Martin's husband earned a high wage, and as a result she grew accustomed to a higher standard of living than many[*420] experience. While she should naturally expect[***49] a diminution in income after her husband's death, the disparity should not be so great that she is subsisting solely on the income from her job as an independent contractor, which is less than ten percent of the previous family income. The Act clearly considers a claimant's standard of living when making benefit determinations; indeed, § 9-681(b) contemplates the socioeconomic status of the dependent in making an initial award of benefits when it mandates that the average weekly wage of the deceased be considered in any benefit determination. n10 See also 2A ARTHUR LARSON, LARSON'S WORKMEN'S COMPENSATION LAW § 63.11(b), at 11-109 (1989)(stating that "[a] showing of actual dependency does not require proof that, without decedent's contributions, claimant would have lacked the necessities of life, but only that decedent's contributions were relied on by claimant to maintain claimant's accustomed mode of living")(emphasis added)(footnote omitted).

n9 We observe that our nation's workers' compensation laws were designed to eliminate a worker's right to recover in tort from his or her employer by providing them with guaranteed compensation. The quid pro quo is that the employer is insulated from tort liability, while the employee is guaranteed compensation, albeit at a potentially lower rate. See 1 ARTHUR LARSON, LARSON'S WORKMEN'S COMPENSATION LAW § 1.20, at 2 (1990)("The employee and his dependents, in exchange for these modest but assured [workers' compensation] benefits, give up their common-law right to sue the employer for damages for any injury covered by the act.") As such, in any given case, this tradeoff may work to either the employer or employee's advantage. In the instant case, Mrs. Martin had no right to recover in tort because Mr. Martin was killed in the course of his employment. If Mrs. Martin had been allowed to sue in tort and had a valid claim, she would have been able to recover not only her full pecuniary loss but other damages as well. See Md. Code (1998 Repl. Vol.), Courts & Judicial Proceedings Art., § 3-904 (d), which states, in pertinent part, that damages awarded under a wrongful death action
 
"are not limited or restricted by the 'pecuniary loss' or 'pecuniary benefit' rule but may include damages for mental anguish, emotional pain and suffering, loss of society, companionship, comfort, protection, marital care, parental care, filial care, attention, advice, counsel, training, guidance, or education...."
 
The workers' compensation laws, by accounting for the injured or deceased worker's income level, therefore retain elements of the tort system that the laws were intended to replace. Thus, it is not unjust under the particular facts of this case that Mrs. Martin be awarded continuing benefits as a total dependent even though she is currently employed in a low-paying job.

[***50] 

n10 There are other contexts where Maryland courts look to see if a person is self- supporting, and in so doing the person's status is taken into consideration. See Md. Code (1999 Repl. Vol.), Family Law Art., § 8-205(b)(governing awards of marital property) and Md. Code (1999 Repl. Vol.), Family Law Art., § 11-106(b)(governing awards of alimony).

   We also may be affronted by the particulars of the arrangement the Martins made; specifically, the fact that in accepting a gratuitous salary from Sun Dun, Mrs. Martin was "getting something for doing nothing." No matter what our personal biases are, we must not penalize Mrs. Martin because Mr. Martin was professionally successful and financially able to make this special arrangement with his wife. We are still obligated to look at the facts of each case and make not only our initial dependency determinations based on her deceased husband's salary, but also any continuing dependency determinations on this basis.

   Thus, when we look at the plain language of the statute in the context of its benevolent purpose, we hold that Mrs. Martin "continues[***51] to be wholly dependent" on Mr. Martin's income at the time of his fatal accident. We further hold that the correct formula to apply in determining whether a claimant [*421]continues to be wholly dependent under § 9-681(d) is to compare the amount earned by the worker at the time of death with the amount the surviving spouse earns after the $45,000 has been paid. If we adopt the Court of Special Appeals' interpretation, that for compensation to be continued the claimant must have an ongoing dependency on the death benefits, untold numbers of people may be unable to continue to receive the support they need to live. Nothing in our case law, or the wording of the statute itself, points to such a strict rule of construction; in fact, legislative intent tells us that we must avoid such a narrow reading of the Act.

   Furthermore, pursuant to § 9-745 (b)(1), the decision of the Commission is presumed to be prima facie correct. There is nothing in the record to indicate that the Commission did not fairly consider all of the facts regarding Mr. Martin's accidental death or that it exceeded its powers or misconstrued the law and facts of the case. See § 9-745 (c)(1)-(3). Therefore, in accordance [***52]with § 9-745 (e)(1), we shall affirm the decision of the Commission and uphold the order of reinstatement of Mrs. Martin's workers' compensation death benefits.

   III. CONCLUSION

   For the reasons stated, we reverse the judgment of the Court of Special Appeals and hold that the phrase "continues to be wholly dependent," as found in § 9-681(d), [**745] refers to a continued dependency on the deceased spouse's income at the time of his or her death. In making ongoing dependency determinations, the amount earned by the deceased employee at the time of death must be compared with the amount the claimant earns after the initial maximum $45,000 has been paid. In deference to the Commission's interpretation of the statute and its findings, we affirm its August 22, 1995, order, which found that Petitioner continued to be "wholly dependent on her deceased husband."
 
JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED. CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO AFFIRM THE JUDGMENT [*422] OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY. COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID BY RESPONDENT. 

Graham, David Jonathan v. State 
Pet. Docket No. 649, September Term, 1998
 
COURT OF APPEALS OF MARYLAND
 
353 Md. 269; 725 A.2d 1068; 1999 Md. LEXIS 141

 March  12, 1999, Decided

NOTICE: 

 [*1]  DECISION WITHOUT PUBLISHED OPINION 

PRIOR HISTORY: (No. K-98-00717 ID, Circuit Court for  Anne Arundel  County).

OPINION: Petitions for Writ of Certiorari denied. 

Guthrie, Kevin Michael v. State 
Pet. Docket No. 520, September Term, 1998
 
COURT OF APPEALS OF MARYLAND
 
352 Md. 335; 722 A.2d 63; 1998 Md. LEXIS 1038

 December  23, 1998, Decided

NOTICE: 

 [*1]  DECISION WITHOUT PUBLISHED OPINION 

PRIOR HISTORY: (No. K-98-465, Circuit Court for  Anne Arundel  County).

OPINION: Petition for Writ of Certiorari denied. 

J & R Plumbing v. Nash 
Pet. Docket No. 455, September Term, 1998
 
COURT OF APPEALS OF MARYLAND
 
352 Md. 335; 722 A.2d 63; 1998 Md. LEXIS 1040

 December  23, 1998, Decided

NOTICE: 

 [*1]  DECISION WITHOUT PUBLISHED OPINION 

PRIOR HISTORY: (No. C-98-44727CO, Circuit Court for  Anne Arundel  County).

OPINION: Petition for Writ of Certiorari denied. 

KIMBERLY BOSWELL v. ROBERT G. BOSWELL 
No. 4, September Term, 1998
 
COURT OF APPEALS OF MARYLAND
 
352 Md. 204; 721 A.2d 662; 1998 Md. LEXIS 952

 December  18, 1998, Filed

   PRIOR HISTORY: [***1] Circuit Court for  Anne Arundel  County. Case # C-94 16022 DV.  Certiorari to the Circuit Court for  Anne Arundel  County. Lawrence H. Rushworth, JUDGE.

DISPOSITION: JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED. CASE REMANDED TO THE COURT OF SPECIAL APPEALS WITH DIRECTIONS TO REMAND THIS CASE TO THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID BY PETITIONER. 
CASE SUMMARY 

PROCEDURAL POSTURE:  Petitioner sought review challenging only that portion of an order from the Court of Special Appeals (Maryland), which vacated the circuit court's prohibition on respondent's visitation with the parties' minor children, while in the presence of respondent's non-marital partner.

OVERVIEW:  Petitioner sought clarification as to the standard a trial court should apply in determining the extent of restrictions on parental visitation of children in the presence of non-marital partners. The appeal arose from an order from the circuit court, which restricted respondent's visitation with his children because respondent was involved in a homosexual relationship. The appellate court vacated the prohibition against visitation because there was no evidentiary basis for the circuit court to conclude that respondent's homosexual relationship was harmful to the children. On certiorari, the court held that the correct standard to be applied was the best interests of the child, with visitation being restricted only upon a showing of actual or potential harm to the child resulting from contact with the non-marital partner. Specifically, the court clarified that the appellate court's judgment should not be interpreted as articulating an "actual harm" standard that was separate and distinct from the best interests of the child standard. Accordingly, the judgment of the appellate court was affirmed.

OUTCOME:  The judgment vacating the prohibition on respondent's visitation was affirmed and the case was remanded because no factual findings were made by the circuit court as to likely harm to the minor children. Therefore, there was no nexus between such harm and the presence of respondent's non-marital partner during visitation, and the order was properly vacated.

CORE TERMS:  visitation, custody, non-marital, homosexual, partner, overnight, non-custodial, actual harm, adverse impact, lifestyle, parental, harmful effect, homosexuality, potential harm, case law, adultery, harmed, best interest, heterosexual, restricting, chancellor, emotional, detriment, exposure, lesbian, well-being, clarify, adverse effect, adulterous, vacated

CORE CONCEPTS -  

Family Law: Child Custody: Proceedings
A parent has a fundamental right to the care and custody of his or her child. The United States Supreme Court has upheld the rights of parents regarding the care, custody, and management of their children in several contexts, including child rearing, education, and religion. In accordance with the Supreme Court, Maryland has declared that a parent's interest in raising a child is a fundamental right that cannot be taken away unless clearly justified.

Family Law: Child Custody: Awards
In the context of most family law disputes over children, the state's interest is to protect the child's best interests as parens patriae, which is in accord with the state's interest in protecting the health, safety, and welfare of its citizens. "Parens patriae" refers to the principle that the state must care for those who cannot take care of themselves, such as minors.

Family Law: Child Custody: Awards
In Maryland, the state's interest in disputes over visitation, custody, and adoption is to protect the best interests of the child who is the subject matter of the controversy. The court has described the best interests of the child standard as being of transcendent importance and the sole question in familial disputes; indeed, it is therefore not considered as one of many factors, but as the objective to which virtually all other factors speak.

Family Law: Child Custody: Awards
While a parent has a fundamental right to raise his or her own child, the court has held that the best interests of the child may take precedence over the parent's liberty interest in the course of a custody, visitation, or adoption dispute. The controlling factor in adoption and custody cases is not the natural parent's interest in raising the child, but rather what best serves the interest of the child. The best interest standard does not ignore the interests of the parents and their importance to the child. In almost all cases, it is in the best interests of the child to have reasonable maximum opportunity to develop a close and loving relationship with each parent.

Family Law: Child Custody: Visitation
As to visitation, the non-custodial parent has a right to liberal visitation with his or her child at reasonable times and under reasonable conditions, but this right is not absolute. Not only must access to the children be reasonable, but any limitations placed on visitation must also be reasonable. In examining the reasonableness of a visitation restriction, courts will look to see if spending time with the parent endangers the child. Visitation rights, however, are not to be denied even to an errant parent unless the best interests of the child would be endangered by such contact.
 
Family Law: Child Custody: Visitation
Because visitation generally is awarded to non-custodial parents not for their gratification or enjoyment, but to fulfill the needs of the child, when the child's health or welfare is at stake visitation may be restricted or even denied. In situations where there is evidence that visitation may be harmful to the child, the presumption that liberal unrestricted visitation with a non-custodial parent is in the best interests of the child may be overcome. Applying a best interests standard, coupled with a finding of adverse impact, Maryland courts have restricted or denied visitation in situations involving sexual abuse, physical abuse, and/or emotional abuse by a parent.

Family Law: Child Custody: Awards
Family Law: Child Custody: Visitation
Some jurisdictions statutorily delineate the best interest factors that are to be applied to resolve family law disputes; however, Maryland's factors derive from case law. A list of factors that courts may consider when applying the best interests standard to a custody case are: the fitness of the persons seeking custody, the adaptability of the prospective custodian to the task, the age, sex and health of the child, the physical, spiritual and moral well-being of the child, the environment and surroundings in which the child will be reared, the influences likely to be exerted on the child, and, if he or she is old enough to make a rational choice, the preference of the child. The fitness of a person to have custody is of vital importance. The paramount consideration, however, is the general overall well being of the child. These best interest factors also apply to visitation, as well as any other proceeding where the best interest of the child is at issue.

Family Law: Child Custody: Visitation
Visitation cannot be denied to the non-custodial parent simply because the child says he or she does not want to spend time with his or her mother or father.

Family Law: Child Custody: Awards
In addition to the best interest factors, courts may consider such other things in determining custody, such as the desire of the natural parents, and any agreements between them the potential for maintaining natural family relations material opportunities affecting the future life of the child the residences of the parents, and the opportunity for visitation. Also the length of the separation of the parents, and whether there was a prior voluntary abandonment or surrender of custody of the child.

Family Law: Child Custody: Proceedings
Custody and visitation determinations are within the sound discretion of the trial court, as it can best evaluate the facts of the case and assess the credibility of witnesses.

Family Law: Child Custody: Awards
Family Law: Child Custody: Visitation
In applying the best interests of the child standard to a custody award or grant of visitation, a court is to consider the factors stated supra and then make findings of fact in the record stating the particular reasons for its decision. Md. R. Civ. P. Cir. Ct. 2-522(a) states that in a contested court trial, the judge, before or at the time judgment is entered, shall dictate into the record or prepare and file in the action a brief statement of the reasons for the decision and the basis of determining any damages. At minimum, this rule mandates that the court state an objective to be served by the restriction and then detail the facts furthering the objective. In making its written findings, the court is not allowed to consider one factor, such as a parent's adultery or homosexuality, to the exclusion of all others.

Family Law: Child Custody: Proceedings
If the trial court does not make appropriate a factual finding based on evidence presented, or relies on one factor to the exclusion of all others, then its visitation or custody order may be challenged. In such cases, the appellate court conducts three separate tiers of review. First, when the appellate court examines factual findings, the clearly erroneous standard of Md. R. App. Review, Ct. App. & Ct. Spec. App. 8-131(c) is applied. Second, if errors were made as to matters of law, additional proceedings in the trial court will usually be required unless the error is found to be harmless. Finally, when the reviewing court concludes that the factual findings of the trial court are not clearly erroneous and that sound principles of law were applied, the trial court's decision will not be disturbed unless there has been a clear abuse of discretion. In almost every case, the chancellor's decision regarding custody and visitation is given great deference unless it is arbitrary or clearly wrong. 

Civil Procedure: Appeals: Standards of Review: Clearly Erroneous Review
Md. R. App. Review, Ct. App. & Ct. Spec. App. 8-131(c) provides that when an action has been tried without a jury, the appellate court will review the case on both the law and the evidence. It will not set aside the judgment of the trial court on the evidence unless clearly erroneous, and will give due regard to the opportunity of the trial court to judge the credibility of the witnesses. 

Family Law: Child Custody: Visitation
In restricting visitation, actual or potential harm is a component of the best interests standard and not a separate and distinct standard, as indicated in Maryland case law and Md. Code Ann., Fam. Law § 9-101 (1984). Maryland's coupling of the best interests of the child standard with actual or potential harm is in accordance with the case law of other jurisdictions, which requires evidence of adverse impact before a parent's non-marital relationship can be a factor in custody or visitation decisions. Moreover, the Court of Appeals of Maryland agrees with those courts from other jurisdictions that have held that the primary consideration in visitation and custody proceedings is not the sexual lifestyle or conduct of the parent, but whether the child will suffer harm from the behavior of the parent. Courts should adopt a flexible approach when confronting family law disputes, especially where children are involved.

Family Law: Child Custody: Visitation
Before a parent's visitation may be restricted, the best interests of the child standard must be applied, coupled with the need for a factual finding based on evidence demonstrating that the non-marital partner's presence has adversely affected the children.

Family Law: Child Custody: Awards
Family Law: Child Custody: Visitation
Whether the issue is custody or visitation, before depriving the sexually active parent of his crucial and fundamental right of contact with his child, a court must find that the parent's conduct is having, or is probably having, a harmful effect on the child. In a custody or visitation dispute, the question should be what is the effect of this parental behavior on the children? not, is this behavior good or bad?

COUNSEL: ARGUED BY Cynthia E. Young of Annapolis, MD FOR PETITIONER.
 
ARGUED BY Nancy Polikoff, American University Law School of Washington, DC; (Beatrice Dohrn, Lambda Legal Defense and Education Fund, Inc. of New York, NY) all on brief FOR RESPONDENT.

JUDGES: ARGUED BEFORE Bell, C.J.; Eldridge, Rodowsky, Chasanow, Raker, Wilner, and Cathell, JJ. Opinion by Chasanow, J. Concurring opinion by Cathell, J.

OPINIONBY: CHASANOW

OPINION: [*209]
 
[**664] Opinion by Chasanow, J.
 
In the instant case, Kimberly Boswell (Petitioner) asks us to clarify the standard a court should apply in determining the extent of restrictions on parental visitation of children in the presence of non-marital partners. Petitioner claims that the "best interests of the child" standard should apply and that the Court of Special Appeals erred in applying an "actual harm" standard. Robert Boswell (Respondent) contends that the Court of Special Appeals did apply the best interests of the child standard, correctly coupling this standard with the need for a factual finding of actual harm in order for parental visitation to be restricted. For the[***2] reasons set forth below, we affirm the judgment of the Court of Special Appeals and hold that the correct standard to be applied is the best interests of the child, with visitation being restricted only upon a showing of actual or potential harm to the child resulting from contact with the non-marital partner.

   I.

   This appeal arises from an order of the Circuit Court for Anne Arundel County, restricting Respondent's visitation with his children. Respondent appealed to the Court of Special Appeals, which vacated the judgment of the circuit court, including all of the visitation restrictions. See Boswell v. Boswell, 118 Md. App. 1, 701 A.2d 1153 (1997). Petitioner filed a motion for reconsideration and for a stay, which the Court of Special Appeals denied. Petitioner then petitioned for certiorari to this Court, challenging only that portion of the Court of Special Appeals order vacating the prohibition on visitation in the presence of Respondent's non-marital partner. We granted certiorari and affirm the judgment of the Court of Special Appeals.

   II.

   This Court concurs with the procedural history and facts of this case as presented in the opinion of the Court of Special Appeals. [***3] Boswell, 118 Md. App. at 5-8, 11-22, 701 A.2d at 1154-56, 1158-63. For the purposes of this appeal, we will summarize only the pertinent facts and circumstances. [*210]

   Robert Boswell and Kimberly Boswell were married in May 1986. Two children were born of the union, son Ryan born in 1988 and daughter Amanda born in 1991. In August 1994, the parties separated after Mr. Boswell told his wife that he was homosexual. In February 1995, Mr. Boswell began living with Robert Donathan, with whom he began an intimate relationship after he and Ms. Boswell separated.

   Ms. Boswell filed the initial complaint for limited divorce on October 5, 1994. On January 20, 1995, Judge James Cawood of the Circuit Court for Anne Arundel County ordered visitation between Mr. Boswell and his children each Wednesday evening and every other weekend. On February 2, 1995, the [**665] Boswells were ordered to meet with the Department of Social Services, which was to report to the court regarding custody and visitation. Mr. Boswell filed a counterclaim for absolute divorce in July 1995 and Ms. Boswell filed an amended complaint in August 1995.

   Even though the parties filed a pretrial order on December 12, 1995, stating that[***4] the only contested issues were alimony and counsel fees and projecting a one-day trial, no final agreement was entered before trial. Thus, the trial over which circuit court Judge Lawrence Rushworth presided lasted five full days (March 12, 13, 14, and April 1, 4, 1996). Most of the testimony concerned disputes over the value, possession, and disposition of various personal property items. Both parties agreed that primary custody was to remain with Ms. Boswell. As to visitation, on April 1, 1996, Mr. Boswell moved for recusal of Judge Rushworth based on statements he made during the conference that indicated a predisposition to limit the father's visitation, specifically permitting no contact between Amanda and Ryan and Mr. Donathan. Mr. Boswell claimed these statements demonstrated undue prejudice toward his case. The court denied the motion.

   On April 5, 1996, the parties reached agreement on the financial issues and the judge ruled from the bench on visitation. In its oral opinion, the court awarded sole custody to Ms. Boswell and severely curtailed Mr. Boswell's visitation. [*211] In its written order filed on April 26, 1996, the court limited Mr. Boswell to visiting with his children[***5] every other Saturday from 8:00 a.m. to 8:00 p.m., every other Sunday from 11:00 a.m. to 8:00 p.m. and every Wednesday from 3:00 p.m. to 8:00 p.m. on school days and from 8:00 a.m. to 8:00 p.m. on non-school days. The order further prohibited any overnight visitation and visitation with the children in the presence of Mr. Donathan or "anyone having homosexual tendencies or such persuasions, male or female, or with anyone that the father may be living with in a non-marital relationship."
 
The trial court placed these limitations on Mr. Boswell's visitation even though they were not requested by Ms. Boswell. Indeed, when Ms. Boswell testified and was asked her opinion about the children's visitation with their father, she replied "I think that they should visit him. *** Every other weekend and in the mid-week is fine." She also agreed with the recommendation of Marcia Kabriel, the court-appointed social worker, that Mr. Boswell should have visitation with the children one week per month during the summers. Furthermore, Ms. Boswell never testified that she wanted Mr. Boswell to exclude Mr. Donathan from visitation, nor did she allege that Mr. Donathan's presence during visitation was[***6] harmful to the children. Visitation only became a disputed issue when Ms. Kabriel recommended an increase in Mr. Boswell's visitation, which he then asked the court to grant, and Ms. Boswell disagreed with some of the social worker's suggestions. Specifically, Ms. Boswell did not want any overnight visits during the week nor did she want summer visits scheduled for consecutive weeks and no visitation in August due to her own vacation plans.

   The trial judge primarily based his visitation order on videotaped in camera interviews with Ryan and Amanda, which yielded no definitive response from either child as to how they felt about visitation in the presence of Mr. Donathan. n1 The court made the following comments from the bench concerning Mr. Boswell's visitation with his children:

n1 The children's answers to the judge's questions as to whether they preferred visitation without Mr. Donathan present were as follows:

   "[Amanda:] I just want to visit my dad. Not Mr. Rob [Donathan]. Only sometimes I want to visit Mr. Rob.
 
[The Court:] Sometimes you want to visit him? So you get along with Mr. Rob?

   [Amanda:] Uh-huh.

   [Ryan:] She does. I don't.

   [The Court:] Okay. But, Ryan, you're certain about that? You would rather not visit with your dad when Mr. Rob is there? Is that....

   [Ryan:] Yeah, but I don't want him to move away, because he has a dog and I really like the dog."

[***7] [*212]

   "Where there is a ... paramour involved.... I have often, time and time again, restricted visitation. I think that's only appropriate. *** [I will hold] down the ... visitations of both the weekend and Wednesday and [restrict] during this period [**666] any overnight visitation. Clearly the Court is convinced that ... there is a relationship, at least up until this time, and no concern to change before this time, that [Mr. Boswell] is sleeping with ... another person without the cloak of a marital relationship.

    * * *

   There will be no visitation in the home where there is ... Donathan. Or any other situation that goes to a relationship that isn't condoned.

    * * *

   Mr. Boswell, there may come a time when you would elect to have someone else stay at the home with you, perhaps a female companion or another male companion, but my order is that the children are not to visit you under those circumstances. So if it means taking them to some other place, some neutral place, then that's the Order of this Court, and that's a strict order [until] it is clear to me that we'll have no situation where you have a live-in companion." (Emphasis added).

   On August 22, 1996, upon a second[***8] request by Mr. Boswell's counsel, Judge Rushworth recused himself from any additional proceedings in this case. Mr. Boswell appealed to the Court of Special Appeals, with his principal argument being that the [*213] trial court failed to make any findings of fact upon which to base its visitation order. The Court of Special Appeals entered a judgment in Mr. Boswell's favor on October 29, 1997, vacating the prohibition against overnight visitation. The court determined that the trial judge had erroneously concluded that Dr. Kay Standley objected to all overnight visitation and that neither Ryan nor Amanda wanted to visit overnight, when in actuality it was only Ryan who felt this way. The court remanded this issue to the trial court to determine if it would impose the same restriction. Regarding the prohibition against visitation in the presence of Mr. Donathan, the court vacated it without remand for two reasons:

   "The court articulated no reasons for the restriction other than the inappropriateness' of the relationship, and it failed to state on the record how the children might be harmed by exposure to the relationship. Given the testimony of Kabriel, Standley, Officer Parsons, and Officer[***9] Bauman, we hold that there was no evidentiary basis for the court to conclude the relationship was harmful to the children. Hence, the court could not have articulated any harmful effect, since there was no evidence to support such a finding. There was therefore no showing that the restriction was necessary to prevent any adverse impact on the children."
 
Boswell, 118 Md. App. at 33-34, 701 A.2d at 1169. The court also vacated the remainder of the visitation prohibitions without remand.
 
Ms. Boswell filed a motion for reconsideration and a for stay, alleging that the Court of Special Appeals had incorrectly applied an "actual harm" standard rather than the best interests of the child standard to the visitation issues. The motion and stay were denied on December 5, 1997, with the court maintaining it had applied the correct standard, that being the best interests of the child with a required factual showing of actual harm in order for visitation to be restricted. In its opinion denying the motion for reconsideration, the court stated: "The distinction appellee attempts to draw between the 'actual harm' standard and the best interest of the [*214] child' standard is illusory." Ms. [***10] Boswell then petitioned for, and was granted, certiorari to this Court solely on the issue regarding the prohibition on visitation in the presence of Mr. Boswell's partner, Mr. Donathan. Specifically, we are asked to clarify the standard a court must apply in determining the extent of restrictions on parental visitation of children in the presence of non-marital partners. Ms. Boswell claims the "best interests of the child" standard should apply and that the Court of Special Appeals erred in applying an "actual harm" standard. Mr. Boswell contends that the Court of Special Appeals did apply the best interests of the child standard, correctly coupling this standard with the need for an evidentiary showing of actual harm in order for parental visitation to be restricted. In affirming the Court of Special Appeals' judgment, we want to clarify that the Court of Special Appeals' judgment should not be interpreted as articulating [**667] an "actual harm" standard that is separate and distinct from the best interests of the child standard. We seek to clarify that only one standard is used in determining whether to restrict parental visitation in the presence of non-marital partners, bests interests[***11] of the child, but we also want to emphasize that when a court is engaging in a best interests analysis, reasonable maximum exposure to each parent is presumed to be in the best interests of the child.

   Before we begin our analysis, it is useful to briefly summarize the role the following individuals have played in the proceedings to date.

   A. Robert Donathan
 
Robert Donathan has been Mr. Boswell's live-in partner since February 1995. He has been present during Ryan and Amanda's visitation with their father, with the exception of the period when Judge Rushworth's order was in effect from April 1996 until December 1997. During the trial, Mr. Boswell testified that he and Mr. Donathan slept in the same bedroom when the children came to visit, but when he learned that this upset Ryan, the two began sleeping in separate bedrooms during visitation. Mr. Boswell and Mr. Donathan agreed that [*215] Mr. Donathan would not actively discipline the children and this arrangement was generally followed. Basically, Mr. Donathan's role with Ryan and Amanda during visitation was to play with them and participate in outings and activities that they had planned with their father.

   B. Marcia Kabriel
 
Marcia[***12] Kabriel was the court-appointed social worker who investigated the Boswell's situation and made a recommendation concerning custody and visitation in an October 30, 1995, report. At trial, she testified that after conducting over 20 interviews with the parties, her conclusion was that Ryan and Amanda had bonded well with both parents. Ms. Kabriel recommended that the children's primary residence remain with Ms. Boswell, and that Mr. Boswell be granted liberal visitation to include a week with the children each of the summer months along with every other weekend and Wednesday evenings. Although Ms. Kabriel did not initially suggest overnight visitation on Wednesdays, she later recommended this due to the difficulties the children were experiencing in dealing with their parent's separation and the acrimony between them.

   Ms. Kabriel indicated that while both children were "confused" by their father's relationship with Mr. Donathan, Amanda was adjusting fairly well but Ryan was having difficulty accepting it. When pressed by Ms. Boswell's attorney to clarify whether the children were confused due to the homosexual aspect of their father's relationship with Mr. Donathan, Ms. Kabriel stated: [***13]

   "Any kind of a relationship, heterosexual or homosexual, is going to be confusing and impact on the children.

    * * *

   The children would have been confused if it had been a man or a woman. The children routinely in the first year or two after a separation and divorce have hopes that their parents will reconcile. They want them together and so the whole situation would be confusing to them." (Emphasis added). [*216]

    When asked whether it would be better for Ryan and Amanda if Mr. Donathan were absent whenever they visited their father, Ms. Kabriel replied:

   "I think that if the parents could begin to work together and communicate and plan for these children and reduce the tension between--that exists between the parents, this makes more sense in terms of [Donathan] has been in these children's lives now for over a year and I don't think that he's just going to go away. So in a sense the children have already had their experience with him and have a relationship with him."

   C. Dr. Kay Standley
 
Dr. Kay Standley is a child psychologist with whom the Boswell children were in therapy. She began seeing Ryan in January 1995 and Amanda in April 1995, both on a weekly basis, and[***14] she was still seeing them at the time of trial. In testifying as an expert witness for Ms. Boswell, Dr. Standley [**668] stated that Amanda's concerns were related to the animosity between her parents, but that Ryan's adjustment to the separation was more problematic due to his Attention Deficit Disorder, poor self-image and difficulty with peer relationships.

   When questioned about how the temporary visitation schedule was working, Dr. Standley testified that "the weekend visits seem to have become, in the last few weeks, more pleasant and the children don't ... seem to be as distressed." In testifying about the "during the week" visitation, Dr. Standley stated that while spending the night on Wednesdays was too disruptive "certainly Mr. Boswell would spend some time on a Tuesday or a Wednesday night because ... for the children, that's a very long period of time. They shouldn't go a long time without contact with both parents." Indeed, Dr. Standley expressed her opinion that in situations such as Ryan and Amanda's, she was "very much in favor of both parents having a great deal of contact with the [children]." [*217]

   In response to a question about the effect Mr. Boswell's homosexual relationship[***15] with Mr. Donathan was having on the children, Dr. Standley testified that Ryan was distressed and concerned. However, when asked whether it would be better for Ryan and Amanda if Mr. Donathan were not present during visitation, she focused her answer on the effect that any relationship of Mr. Boswell's, heterosexual or homosexual, would have on the children:

   "In any situation like this as the children adjust to a parental separation, divorce and the realignment of parents with new partners, it's very, very important whether that is the same sex or an opposite sex partner that there be a very slow period of exposure to the -- to the children of that -- that new partner. That should proceed deliberately and very slowly.

    * * *

   Children in a situation like this really need to be reassured that they have the affection and the continuing relationship of each parent ... and that -- that no other person, no other relationship will -- will interfere with that." (Emphasis added).

   Regarding the children's adjustment to their father's relationship with Mr. Donathan, Dr. Standley stated that while their father's new relationship was initially difficult for them, especially considering[***16] how quickly they were exposed to it, she acknowledged "they seem to be adjusting a little bit better now."
 
III.

   A. The Best Interests of the Child
 
A parent has a fundamental right to the care and custody of his or her child. The United States Supreme Court has upheld the rights of parents regarding the care, custody, and management of their children in several contexts, including child rearing, education, and religion. See Wisconsin v. Yoder, 406 U.S. 205, 92 S. Ct. 1526, 32 L. Ed. 2d 15 (1972)(overturning [*218] a mandatory schooling law in the face of Amish claims of parental authority and religious liberty); Stanley v. Illinois, 405 U.S. 645, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972)(discussing the right of parents to raise their children); Prince v. Massachusetts, 321 U.S. 158, 166, 64 S. Ct. 438, 442, 88 L. Ed. 645, 652 (1944)(observing that "the custody, care, and nuture of the child reside first in the parents"); Skinner v. Oklahoma, 316 U.S. 535, 541, 62 S. Ct. 1110, 1113, 86 L. Ed. 1655, 1660 (1942)(stating the right to rear a child is encompassed within a parent's "basic civil rights"); Pierce v. Society of Sisters of Holy Names, 268 U.S. 510, 45 S. Ct. [***17] 571, 69 L. Ed. 1070 (1925)(sustaining parents' authority to provide religious schooling against State requirements of public school attendance); Meyer v. Nebraska, 262 U.S. 390, 43 S. Ct. 625, 67 L. Ed. 1042 (1923)(upholding parental authority to have children taught in languages other than English). The Supreme Court's long history of affording protection to parents in the realm of child rearing and family life was acknowledged in Wolinski v. Browneller, 115 Md. App. 285, 299, 693 A.2d 30, 36-37 (1997):
 
"A parent's Fourteenth Amendment liberty interest in raising his or her children as she sees fit, without undue interference by the State, has long been a facet of that private realm of family affairs over which [**669] the Supreme Court has draped a cloak of constitutional protection."

   In accordance with the Supreme Court, Maryland has declared that a parent's interest in raising a child is a fundamental right that cannot be taken away unless clearly justified.  In re Adoption No. 10941, 335 Md. 99, 642 A.2d 201 (1994). The Court of Special Appeals, in In re Adoption, 103 Md. App. 1, 12, 651 A.2d 891, 897 (1994) stated: "This right is in the nature of a liberty interest [***18]that has long been recognized and protected under the state and federal constitutions."

   In the context of most family law disputes over children, the State's interest is to protect the child's best interests as parens patriae, which is in accord with the State's interest in protecting the health, safety, and welfare of its citizens. "Parens patriae" refers to the "principle that the state must care [*219] for those who cannot take care of themselves, such as minors." BLACK'S LAW DICTIONARY, at 1114 (6th ed. 1990).

   In Maryland, the State's interest in disputes over visitation, custody, and adoption is to protect the "best interests of the child" who is the subject matter of the controversy.  Wolinski, 115 Md. App. at 301, 693 A.2d at 37. We have described the best interests of the child standard as being "'of transcendent importance'" and the "'sole question'" in familial disputes; indeed, it is "therefore not considered as one of many factors, but as the objective to which virtually all other factors speak." Taylor v. Taylor, 306 Md. 290, 303, 508 A.2d 964, 970 (1986)(quoting in part from Ross v. Hoffman, 280 Md. 172, 175 n.1, 372 A.2d 582, 585 n.1 (1977)).

   The best[***19] interests of the child standard has long been applied by Maryland courts to resolve family law disputes. In Pangle vs. Pangle, 134 Md. 166, 170, 106 A. 337, 338 (1919), a child custody case dating back almost 80 years, this Court stated: "The primary concern in cases of this nature is to make such an award of the custody of the child as will promote its highest welfare." Similarly, 10 years later this Court reaffirmed its use of the best interests of the child standard in custody cases when it declared: "The paramount consideration [is] what will be for the best interest of the children and most conducive to their welfare." Carter v. Carter, 156 Md. 500, 505, 144 A. 490, 492 (1929). While these early cases apply the best interests standard in the context of child custody determinations, later cases have held that visitation is governed by the same principles because visitation "is considered to be a form of temporary custody." Beckman v. Boggs, 337 Md. 688, 703 n.7, 655 A.2d 901, 908 n.7 (1995). See also Skeens v. Paterno, 60 Md. App. 48, 61, 480 A.2d 820, 826 (1984)(observing that the ultimate test for custody and visitation is the best interests of the child). [***20]

   Thus, while a parent has a fundamental right to raise his or her own child, this Court has held that the best interests of the child may take precedence over the parent's liberty interest in the course of a custody, visitation, or adoption dispute. [*220] "We have made clear ... that the controlling factor in adoption and custody cases is not the natural parent's interest in raising the child, but rather what best serves the interest of the child." In re Adoption No. 10941, 335 Md. at 113, 642 A.2d at 208. The best interests standard does not ignore the interests of the parents and their importance to the child. We recognize that in almost all cases, it is in the best interests of the child to have reasonable maximum opportunity to develop a close and loving relationship with each parent.

   As to visitation, the non-custodial parent has a right to liberal visitation with his or her child "at reasonable times and under reasonable conditions," but this right is not absolute.  Myers v. Butler, 10 Md. App. 315, 317, 270 A.2d 341, 342 (1970). As stated in the well-known treatise, 2 WILLIAM T. NELSON, DIVORCE AND ANNULMENT § 15.26, at 274- 75 (2d ed. 1961), which has been cited in numerous[***21] Maryland cases:

   "[A] parent whose child is placed in the custody of another person has a right of access to the child at reasonable times. The right of visitation is an important, natural and legal right, although it is not an absolute right, but is one which must yield to the good of the child." (Emphasis added and footnotes omitted).
 
[**670] See also North v. North, 102 Md. App. 1, 12, 648 A.2d 1025, 1031 (1994); In re Jessica M., 312 Md. 93, 113-14, 538 A.2d 305, 315 (1988); Shapiro v. Shapiro, 54 Md. App. 477, 482, 458 A.2d 1257, 1260 (1983); Radford v. Matczuk , 223 Md. 483, 488, 164 A.2d 904, 907 (1960). Not only must access to the children be reasonable, but any limitations placed on visitation must also be reasonable.  North, 102 Md. App. at 12, 648 A.2d at 1031. In examining the reasonableness of a visitation restriction, courts will look to see if the child is endangered by spending time with the parent: "Visitation rights, however, are not to be denied even to an errant parent unless the best interests of the child would be endangered by such contact." Roberts v. Roberts, 35 Md. App. 497, 507, 371 A.2d 689, 694 (1977).[*221]

   Because visitation generally[***22] is awarded to non-custodial parents not for their gratification or enjoyment, but to fulfill the needs of the child, when the child's health or welfare is at stake visitation may be restricted or even denied. See Fairbanks v. McCarter, 330 Md. 39, 49, 622 A.2d 121, 126 (1993). In situations where there is evidence that visitation may be harmful to the child, the presumption that liberal unrestricted visitation with a non-custodial parent is in the best interests of the child may be overcome. Applying a best interests standard, coupled with a finding of adverse impact, Maryland courts have restricted or denied visitation in situations involving sexual abuse, physical abuse, and/or emotional abuse by a parent. In Painter v. Painter, 113 Md. App. 504, 688 A.2d 479 (1997), the Court of Special Appeals upheld a trial court order that completely denied the father visitation with his 16-year-old son and limited visitation with his 11-year-old daughter on the basis of severe emotional and physical abuse. The court stated: "Given the extreme and unusual factual circumstances as to violence, and given Daniel's closeness to the age of majority, the denial of visitation was not an abuse [***23]of discretion." Painter, 113 Md. App. at 521, 688 A.2d at 487. See also John O. v. Jane O., 90 Md. App. 406, 431-35, 601 A.2d 149, 161-63 (1992)(upholding restrictive visitation order denying father overnight visitation due to sexual misconduct with his minor child); Hanke v. Hanke, 94 Md. App. 65, 615 A.2d 1205 (1992)(upholding order denying overnight visitation of father with his four-year-old child because of past sexual abuse of his then-eleven-year-old stepchild and alleged sexual abuse of the four-year-old).

   Some jurisdictions statutorily delineate the best interest factors that are to be applied to resolve family law disputes; n2 [*222] however, Maryland's factors derive from case law. In Hild v. Hild, 221 Md. 349, 357, 157 A.2d 442, 446 (1960), this Court provided a list of factors that courts may consider when applying the best interests standard to a custody case:

n2 States that statutorily delineate "best interests of the child" factors for use in visitation and/or custody proceedings include the following: ALASKA STAT. § 25.24.150(c)(1996); ARIZ. REV. STAT. ANN. § 25-403A. (Supp. 1997); CAL. FAMILY CODE § 3011 (West Supp. 1998); COLO. REV. STAT. ANN. § 14-10-124(1.5)(West Supp. 1998)(effective February 1, 1999); DEL. CODE ANN. tit. 13, § 722 (1993 & Supp. 1996); D.C. CODE ANN. § 16-914(a)(3)(1997); IDAHO CODE § 32-717 (1996); ILL. ANN. STAT. ch. 750, para. 602(a)(Smith-Hurd Supp. 1998); IND. CODE ANN. § 31-14-13-2 (Burns 1997); KY. REV. STAT. ANN. § 403.270(1)(Michie/Bobbs-Merrill Supp. 1996); LA. CIV. CODE ANN. art. 134 (West Supp. 1998); MINN. STAT. ANN. § 257.025(a)(West 1998); MO. ANN. STAT. § 452.375(2)(Vernon 1997); N.M. STAT. ANN. § 40-4-9 A. (Michie 1994); N.D. CENT. CODE § 14-09-06.2 1. (1997); TENN. CODE ANN. § 36-6-106 (Supp. 1998); VT. STAT. ANN. tit. 33, § 5540 (1991); VA. CODE ANN. § 20-124.3 (Michie 1995); WIS. STAT. ANN. § 767.24(5)(West 1993 & Supp. 1997).

[***24]

   "The fitness of the persons seeking custody, the adaptability of the prospective custodian to the task, the age, sex and health of the child, the physical, spiritual and moral well-being of the child, the environment and surroundings in which the child will be reared, the influences likely to be exerted on the child, and, if he or she is old enough to make a rational choice, the preference of the child. It stands to reason that the fitness of a person to have custody is of vital importance. The paramount consideration, however, is the general overall well-being of the child." (Citation omitted).

   These best interest factors also apply to visitation, as well as any other proceeding [**671] where the best interest of the child is at issue. Regarding the child's preference factor, we have stated that it is simply one factor to be considered, within the context of all other relevant factors.  Ross v. Pick, 199 Md. 341, 353, 86 A.2d 463, 469 (1952). In Ross, we stated: "The child's own wishes may be consulted and given weight if he is of sufficient age and capacity to form a rational judgment. *** It is not the whim of the child that the court respects, but its feelings, attachments, reasonable[***25] preference and probable contentment." Id. See also Leary v. Leary, 97 Md. App. 26, 48, 627 A.2d 30, 40 (1993). As such, visitation cannot be denied to the non-custodial parent simply because the child says he or she does not want to spend time with his or her mother or father. In In re Barry E., 107 Md. App. 206, 220, 667 A.2d 931, 938 (1995), the trial judge took the position [*223] that a child should never be forced to visit with a parent if he or she does not want to, no matter what the age of the child. The Court of Special Appeals stated: "It cannot be left up to the unfettered discretion of ... five-year-old children whether to visit with their mother," particularly when there is no evidence in the record that the children possessed sufficient age and reason to make such a decision.  In re Barry E., 107 Md. App. at 220-21, 667 A.2d at 938.

   In addition to the best interest factors enunciated in Hild, courts may consider such other things as:

   "The desire of the natural parents and any agreements between them ... the potential for maintaining natural family relations ... material opportunities affecting the future life of the child ... the residences of the parents and [***26]the opportunity for visitation ... the length of the separation of the parents ... whether there was a prior voluntary abandonment or surrender of custody of the child." (Footnotes omitted).
 
JOHN F. FADER, II & RICHARD J. GILBERT, MARYLAND FAMILY LAW 111 (1990).

   Custody and visitation determinations are within the sound discretion of the trial court, as it can best evaluate the facts of the case and assess the credibility of witnesses.  Beckman, 337 Md. at 703, 655 A.2d at 908. In applying the best interests of the child standard to a custody award or grant of visitation, a court is to consider the factors stated supra and then make findings of fact in the record stating the particular reasons for its decision. Maryland Rule 2-522(a) states: "In a contested court trial, the judge, before or at the time judgment is entered, shall dictate into the record or prepare and file in the action a brief statement of the reasons for the decision and the basis of determining any damages." At minimum, this rule mandates that the court state an objective to be served by the restriction and then detail the facts furthering the objective.  Boswell, 118 Md. App. at 31, 701 A.2d at 1167-68.[***27] Rule 2-522(a) has been held by this Court to also apply to "a final judgment in every non-jury [*224] action, whether legal or equitable in nature." Kirchner v. Caughey, 326 Md. 567, 573, 606 A.2d 257, 260 (1992). In Lemley v. Lemley, 102 Md. App. 266, 649 A.2d 1119 (1994), which involved a divorce proceeding, the Court of Special Appeals remanded certain portions of the case because the trial judge neglected to address the main findings separately and state for the record how each issue was specifically resolved.

   Moreover, in making its written findings, the court is not allowed to consider one factor, such as a parent's adultery or homosexuality, to the exclusion of all others. For example, in Davis v. Davis, 280 Md. 119, 127, 372 A.2d 231, 235 (1977), we abolished the presumption that an adulterous parent is unfit to have custody of a minor child, stating that adultery is merely one factor that "should be weighed, along with all other pertinent factors, only insofar as it affects the child's welfare." See also Robinson v. Robinson, 328 Md. 507, 615 A.2d 1190 (1992); Queen v. Queen, 308 Md. 574, 521 A.2d 320 (1987); Swain v. Swain, 43 Md. App. 622, 406 A.2d 680,[***28] cert. denied, 286 Md. 754 (1979); Draper v. Draper, 39 Md. App. 73, 382 A.2d 1095 (1978)(following Davis holding).

   Thus, if the trial court does not make the appropriate factual findings based on evidence presented, or relies on one factor to the exclusion of all others, then its visitation or custody order may be challenged. In [**672] such cases, the appellate court conducts three separate tiers of review. First, when the appellate court examines factual findings, the clearly erroneous standard of Maryland Rule 8-131(c) is applied:

   "Action tried without a jury. When an action has been tried without a jury, the appellate court will review the case on both the law and the evidence. It will not set aside the judgment of the trial court on the evidence unless clearly erroneous, and will give due regard to the opportunity of the trial court to judge the credibility of the witnesses."

   Second, if errors were made as to matters of law, additional proceedings in the trial court will usually be required unless the error is found to be harmless. Finally, [*225] when the reviewing court concludes that the factual findings of the trial court are not clearly erroneous and that sound principles[***29] of law were applied, the trial court's decision will not be disturbed unless there has been a clear abuse of discretion.  Davis, 280 Md. at 125-26, 372 A.2d at 234. In almost every case, the chancellor's decision regarding custody and visitation is given great deference "unless it is arbitrary or clearly wrong." Hanke, 94 Md. App. at 71, 615 A.2d at 1209.

   B. Actual Harm n3

n3 "Actual harm" is not an exclusive term and other terms may be used interchangeably throughout this opinion. Maryland cases have referred to the required evidentiary showing as "harmful effect" and "adverse impact" ( Boswell v. Boswell, 118 Md. App. 1, 701 A.2d 1153 (1997)); "adverse effect" and "damaging impact" ( Robinson v. Robinson, 328 Md. 507, 615 A.2d 1190 (1992)); "harmful effect"( Queen v. Queen, 308 Md. 574, 521 A.2d 320 (1987)); and "actual harmful effect" ( Swain v. Swain, 43 Md. App. 622, 406 A.2d 680, cert. denied, 286 Md. 754 (1979)).

   It is clear that the best interests of the child standard has long[***30] been used in Maryland to decide initial custody and visitation matters, coupled with the presumption that the child's best interests are served by reasonable maximum exposure to both parents. The best interests of the child standard is also used to limit or restrict custody and visitation. In cases where a change in custody or visitation is requested on the basis of actual or potential harm to the child, courts apply a best interests of the child standard concurrently with adverse impact, granting the modification or restriction only upon a showing of actual emotional or physical harm to the child. The requirement of proof of an adverse impact from a parent's non-marital relationship is an entrenched aspect of Maryland's custody jurisprudence, as demonstrated by the following cases.
 
Swain involved a father appealing the child custody portion of a divorce decree that awarded permanent custody to the mother, who was involved in an adulterous relationship. The court found that, since the child was not presently adversely [*226] affected by her mother's adulterous relationship, the chancellor did not abuse his discretion in awarding custody to the mother. In following the Davis holding[***31] discussed in Part III. A., 352 Md. 204 at 224, 721 A.2d 662 at 671, the court stated:

   "There are now no presumptions whatsoever with respect to the fitness of a parent who has committed, or is committing, adultery. Rather, adultery is relevant only insofar as it actually affects a child's welfare. We will not presume a harmful effect, and the mere fact of adultery cannot tip the balance' against a parent in the fitness determination. Thus, a chancellor should weigh, not the adultery itself, but only any actual harmful effect that is supported by the evidence." (Emphasis in original and added).
 
Swain, 43 Md. App. at 629, 406 A.2d at 683-84.

   In the similar case of Queen, the trial court expressed disapproval of a non-marital sexual relationship, basing its custody decision on personal bias rather than upon any harmful effect on the child. In awarding custody to the mother, the trial court made the following comments about the father: "If you want custody of minor children and rear them you must be married. I'm not going to permit you not to be married to somebody and having custody of children." Queen, 308 Md. at 589, 521 A.2d at 328. This Court vacated the custody award, criticizing[***32] the trial court for relying on the existence of a [**673]non-marital relationship "without assessing whether that relationship would have such a harmful effect on the child as to outweigh other factors in favor of granting custody to the father." Queen, 308 Md. at 590, 521 A.2d at 328.

   In Robinson, we once again examined the role of a non-marital sexual relationship in a custody proceeding where the father was seeking to revoke the mother's custody on the grounds of her adulterous relationship. In that case, the mother's boyfriend frequently stayed overnight with her, sleeping in the same bedroom. The mother's children were also exposed to their aunt's relationship with her live-in boyfriend.  Robinson, 328 Md. at 511, 615 A.2d at 1192. We [*227] rejected the father's custody petition and approved the trial court's finding that "there was no indication that appellee's adulterous conduct had any adverse effect on her son." Robinson, 328 Md. at 520, 615 A.2d at 1196. In finding no abuse of discretion in the custody award, we reinforced the notion that unless actual or potential harm is shown the best interests standard requires disregard of a parent's non-marital relationship. [***33] Our finding was bolstered by the fact that the father was given "the opportunity to present his own evidence of any damaging impact of the appellee's adultery on their child." Robinson, 328 Md. at 518-19, 615 A.2d at 1196 (footnote omitted).

   The North case involved a factual situation similar to the instant case, where the trial court restricted a homosexual father's overnight and extended visitation with his children. In holding that the trial court abused its discretion in restricting the visitation, based on the mother's fear that her ex-husband would inappropriately expose their children to his homosexual lifestyle, the court found that the chancellor was imprecise in her reasoning and never articulated how the father's non-marital relationship detrimentally affected his children. Regarding the mother's other fear, that the father's HIV status endangered their children, the court declared:

   "Although we do not believe that the court actually based its decision not to allow overnight visitation on Mr. North's HIV status, to the extent that the question resurfaces on remand, we would hold that a child's visitation with a non-custodial HIV-positive parent cannot be restricted[***34] on the basis of that parent's HIV status unless the court finds that visitation without that restriction might endanger the child's physical health or impair his or her emotional development." (Emphasis added).
 
North, 102 Md. App. at 12 n.2, 648 A.2d at 1030 n.2.

   Unlike Swain, Queen, Robinson and North, the cases of Painter, John O. and Hanke, discussed in Part III. A., 352 Md. at 221, 721 A.2d at 670, demonstrate that when a court does make a finding of actual or potential harm based on evidence and not presumption, [*228] visitation with the parent can be legitimately restricted or denied. When the issue of abuse and/or neglect arises in a custody or visitation proceeding, a showing of actual or potential harm with specific findings is required pursuant to Maryland Code (1984, 1991 Repl. Vol.), Family Law Article, § 9-101, which provides:

   "(a) Determination by court. -- In any custody or visitation proceeding, if the court has reasonable grounds to believe that a child has been abused or neglected by a party to the proceeding, the court shall determine whether abuse or neglect is likely to occur if custody or visitation rights are granted to the party.

   (b) [***35] Specific finding required. -- Unless the court specifically finds that there is no likelihood of further child abuse or neglect by the party, the court shall deny custody or visitation rights to that party, except that the court may approve a supervised visitation arrangement that assures the safety and the physiological, psychological, and emotional well-being of the child." (Emphasis added).

   Thus, in restricting visitation, actual or potential harm is a component of the best interests standard and not a separate and distinct standard, as indicated in this State's case law and statutory code. We concur with the Court of Special Appeals in the instant case when it stated:

   "The court in the case sub judice articulated no findings of actual harm to the children that the evidence indicated would [**674] result from the children's exposure to appellant's present or future non-marital sexual relationships, but inferred that such exposure would be per se harmful to the children by virtue of the relationship's inherently inappropriate' nature." (Emphasis in original and added).
 
Boswell, 118 Md. App. at 33, 701 A.2d at 1168.

   C. Other Jurisdictions
 
Maryland's coupling[***36] of the best interests of the child standard with actual or potential harm is in accordance with the case law of other jurisdictions, which requires evidence of [*229] adverse impact before a parent's non-marital relationship can be a factor in custody or visitation decisions. Moreover, we agree with those courts from other jurisdictions that have held that the primary consideration in visitation and custody proceedings is not the sexual lifestyle or conduct of the parent, but whether the child will suffer harm from the behavior of the parent. Courts should adopt a flexible approach when confronting family law disputes, especially where children are involved. The court in Conkel v. Conkel, 31 Ohio App. 3d 169, 509 N.E.2d 983, 985-86 (Ohio Ct. App. 1987), advocated such an approach, stating:

   "Too long have courts labored under the notion that divorced parents must somehow be perfect in every respect.

    * * *

   In domestic relations cases the courts should recognize that all parents have faults, and look not to the faults of the parents, but to the needs of the child. A child needs to know that both his parents, divorced or not, love him. Where the parent is removed from the child's environment, [***37] the child feels a sense of loss.... If the courts are concerned with the best interests of the child, then visitation by the non-custodial parent must be recognized as necessary to the child's well-being. The denial of visitation should only be done when egregious conduct by the non-custodial parent results in harm to the child." (Emphasis added).

   The following discussion of other states' case law on this issue is in line with the judgment of the Court of Special Appeals in Boswell, 118 Md. App. 1, 701 A.2d 1153 (1997). That is, before a parent's visitation may be restricted, the best interests of the child standard must be applied, coupled with the need for a factual finding based on evidence demonstrating that the non-marital partner's presence has adversely affected the children.

   In In re the Marriage of Birdsall, 197 Cal. App. 3d 1024, 243 Cal. Rptr. 287 (Cal. Ct. App. 1988), a homosexual father was prohibited from exercising overnight visitation with his minor [*230] son in the presence of any person known to be a homosexual. In finding the restraining order unreasonable, the California Court of Appeal applied a best interests standard stating: "An affirmative showing of[***38] harm or likely harm to the child is necessary in order to restrict parental custody or visitation." Birdsall, 243 Cal. Rptr. at 290 (footnote omitted). The court found there was no affirmative showing of present harm to the child, nor any evidence of future detriment, due to the father's sexual orientation. "Evidence of one parent's homosexuality, without a link to detriment to the child, is insufficient to constitute harm." Birdsall, 243 Cal. Rptr. at 291. The court declared that "unless it is shown that parental visitation would be detrimental to the best interests of the child, reasonable visitation rights must be awarded." Birdsall, 243 Cal. Rptr. at 289.

    Blew v. Verta, 420 Pa. Super. 528, 617 A.2d 31 (Pa. Super. Ct. 1992), a Pennsylvania case, involved the restriction of a homosexual mother's visitation in the presence of her partner, allowing no contact between the child, Nicholas, and the paramour. In finding the trial court abused its discretion in concluding that the child was harmed by his mother's lesbian relationship, the reviewing court stated: "There is simply no evidence in the record of a causal link between the mother's homosexuality and Nicholas' [***39] acting-out behavior." Blew, 617 A.2d at 34. Applying the best interests standard concurrently with the need to find detriment to the "child's physical, emotional, and spiritual well-being" in order to restrict visitation, the court commented on Nicholas' adjustment to his mother's lifestyle:

   [**675] "Courts ought not to impose restrictions which unnecessarily shield children from the true nature of their parents unless it can be shown that some detrimental impact will flow from the specific behavior of the parent. The process of children's maturation requires that they view and evaluate their parents in the bright light of reality.

    * * *
 
In Nicholas' case, one of life's realities is that one of his parents is homosexual. In the absence of evidence that the [*231] homosexuality in some way harms the boy, limiting Nicholas' relationship with that parent fails to permit him to confront his life situation, however unconventional it may be.... Nicholas' best interest is served by exposing him to reality and not fostering in him shame or abhorrence for his mother's nontraditional commitment." (Emphasis added).
 
Blew, 617 A.2d at 35-36 (quoting in part Fatemi v. Fatemi,[***40] 339 Pa. Super. 590, 489 A.2d 798, 801 (Pa. Super. Ct. 1985). See also Pleasant v. Pleasant, 256 Ill. App. 3d 742, 628 N.E.2d 633, 195 Ill. Dec. 169 (Ill. App. Ct. 1993)(holding that lesbian mother's visitation could not be restricted solely on ground that she was in a lesbian relationship; sexual orientation of parent is relevant only if it directly harms the child); n4 In re Marriage of Ashling, 42 Ore. App. 47, 599 P.2d 475 (Or. Ct. App. 1979)(holding that mother's visitation rights could not be limited by requiring that she not allow any lesbians in her home or around her children during their visits; there was no evidence in the record to justify the restrictions the trial court placed on the mother's visitation rights).

 n4 Illinois uses a best interests standard to determine custody and the "endangerment standard" for visitation awards. Under the endangerment standard, which is more stringent than the best interests standard, a parent is entitled to visitation unless the visits would endanger the child. See Pleasant v. Pleasant, 256 Ill. App. 3d 742, 628 N.E.2d 633, 640, 195 Ill. Dec. 169 (1993). Washington State also uses the endangerment standard in visitation proceedings. See In re Marriage of Cabalquinto, 43 Wash. App. 518, 718 P.2d 7 (Wash. Ct. App. 1986).

[***41]

   In a Washington State case, which also discussed the children's adjustment to their parents' separation and father's homosexual lifestyle, the trial court ordered that the father "shall not practice homosexuality in the sense of exhibiting, or participating in displays of affection ... with a partner" in the presence of his children.  In re the Marriage of Wicklund, 84 Wash. App. 763, 932 P.2d 652, 655 (Wash. Ct. App. 1996). The appellate court found the trial court acted improperly in conditioning the father's visitation time on the requirement that he not "practice homosexuality." The court went on to state that parental rights cannot be limited because of a parent's sexual preference [*232]and restrictions are only proper if the behavior "'would endanger the child's physical, mental, or emotional health.'" Id. (quoting In the Matter of the Marriage of Cabalquinto, 718 P.2d 7, 8 (Wash. Ct. App. 1986), which also dealt with a homosexual father's visitation rights being improperly restricted). In discussing the issue of the children's adjustment, the court stated: "Where the only harm is adjustment, the remedy is counseling, not restrictions on the parents' lifestyle in terms[***42] of sexual orientation." Wicklund, 932 P.2d at 653. For two other cases in which the court addressed the adjustment of children to their parents' homosexual lifestyle, see Conkel, 509 N.E.2d at 987 (stating "the children will have to come to terms with the fact that their father is homosexual"); M.P. v. S.P., 169 N.J. Super. 425, 404 A.2d 1256, 1262 (N.J. Super. Ct. App. Div. 1979)(declaring "hard facts must be faced.... There is little to gain by creating an artificial world where the children may dream that life is different than it is.").

   A Florida court in Trylko v. Trylko, 392 So. 2d 1034 (Fla. Dist. Ct. App. 1981), held that the trial court abused its discretion in restricting a mother's visitation with her children to times when her male paramour was not present. The appellate court found that, although the trial court applied the best interests of the child standard, it exercised moral disapproval of the mother's relationship rather than making factual findings based on evidence to support its conclusion that the paramour's presence during visitation had a "deleterious effect" on the children.  Trylko, 392 So. 2d at 1035. Without this evidentiary showing of harm, the court held[***43] that the order could not stand, stating: [**676] "The private lives of the children and the mother may not be so regulated." Trylko, 392 So. 2d at 1036.

   In another case dealing with a heterosexual non-marital relationship, the Supreme Court of Mississippi overturned a trial court order that restricted the non-custodial father from enjoying overnight visitation with his children because he lived with a woman without the cloak of marriage.  Harrington v. Harrington, 648 So. 2d 543 (Miss. 1994). Applying the best [*233] interests standard, the court found that the chancellor made no findings of fact supported by evidence in the record that the children were harmed by contact with the father's non-marital partner. Harrington, 648 So. 2d at 546. See Dunn v. Dunn, 609 So. 2d 1277, 1286 (Miss. 1992)(stating overnight visitation of children with non-custodial parent is presumed and holding chancellor abused his discretion by restricting visitation where no evidence was presented that child was harmed or endangered by contact with non-custodial parent's paramour). See also Chamblee v. Chamblee, 637 So. 2d 850, 862 (Miss. 1994)(following Dunn holding in striking down order that mother[***44] could not have any male companion unrelated to her by blood or marriage present during visitation with her child; danger to children must be shown).

   In a recent Georgia case, an appellate court held that in the absence of a finding of adverse effect on the child, unsupervised visitation with a homosexual father was in the best interests of the child. In the Interest of R.E.W., 220 Ga. App. 861, 471 S.E.2d 6 (Ga. Ct. App. 1996). As in the instant case, the lower court emphasized the father's lifestyle as morally undesirable, focusing on both non-marital heterosexual and homosexual relationships.  R.E.W., 471 S.E.2d at 8-9. The appellate court emphasized that the focus should be on likely harm to the child resulting from the parent's conduct, not a presumption as to how the parent's lifestyle may affect the child.  R.E.W., 471 S.E.2d at 9. Similarly, in In re the Marriage of Walsh, 451 N.W.2d 492, 493 (Iowa 1990), the Supreme Court of Iowa held that the trial court improperly restricted a homosexual father's visitation to times when "no unrelated adult" was present. The court found that "this unusual provision was obviously imposed on account of [the father's] homosexual[***45] lifestyle." Id.

   We also see adverse effect as a component of best interests of the child in cases involving custody disputes. In an Indiana case, a trial judge conditioned a mother's custody of her two sons upon her "not co-habitating with women with whom she is maintaining a homosexual relationship ... and ... not engaging in homosexual activity in the presence of the children." [*234] Teegarden v. Teegarden, 642 N.E.2d 1007, 1008 (Ind. Ct. App. 1994). The reviewing court applied a best interests standard and reversed the order, stating: "Homosexuality standing alone without evidence of any adverse effect upon the welfare of the child does not render the homosexual parent unfit as a matter of law to have custody of the child." Teegarden, 642 N.E.2d at 1010 (emphasis added)(footnote omitted). See also Bezio v. Patenaude, 381 Mass. 563, 410 N.E.2d 1207, 1215 (Mass. 1980)(reversing the trial court finding that mother's lesbian household would create instability that would adversely affect the children's welfare, and thus custody should be granted to father); Stroman v. Williams, 291 S.C. 376, 353 S.E.2d 704, 705 (S.C. 1987)(ruling that mother's lesbianism did not mandate[***46] a change in custody because there was no evidence that the child was adversely affected by it). For other custody and visitation cases dealing with presumptions of unfitness because of a parent's homosexuality, see Bottoms v. Bottoms, 249 Va. 410, 457 S.E.2d 102, 108 (Va. 1995)(stating "that a lesbian mother is not per se an unfit parent"); Birdsall, supra (holding that in a custody determination a parent is not presumed unfit because he or she is homosexual); Conkel, supra (finding father's homosexuality does not per se result in determination of unfitness so as to preclude overnight visitation rights absent evidence that visitation would be psychologically or physically harmful to children).
 
   Thus, as all of the cases discussed supra demonstrate, and as the Conkel court so aptly states: "Whether the issue is custody or visitation, before depriving the sexually active parent of his crucial and fundamental [**677] right of contact with his child, a court must find that the parent's conduct is having, or is probably having, a harmful effect on the child." n5 509 N.E.2d at 986. [*235] In a custody or visitation dispute, the question should be "'what is the effect of this parental[***47] behavior on the children?' not, 'is this behavior good or bad?'" Grimes v. Grimes, 281 Pa. Super. 484, 422 A.2d 572, 578 (Pa. Super. Ct. 1980)(Spaeth, J., dissenting)(emphasis added).

n5 In addition to the cases discussed supra, the following custody and visitation cases also hold that a parent's sexual orientation is never contrary to the best interests of a child unless there is a nexus established between specific harm to the child and the parent's conduct: State ex. rel Human Services Dep't, 107 N.M. 769, 764 P.2d 1327 (N.M. Ct. App. 1988); M.A.B. v. R.B. , 510 N.Y.S.2d 960 (N.Y. Sup. Ct. 1986); S.N.E. v. R.L.B., 699 P.2d 875 (Alaska 1985); Guinan v. Guinan, 102 A.D.2d 963, 477 N.Y.S.2d 830 (N.Y. App. Div. 1984); Doe v. Doe, 16 Mass. App. Ct. 499, 452 N.E.2d 293 (Mass. App. Ct. 1983); Nadler v. Superior Court, 255 Cal. App. 2d 523, 63 Cal. Rptr. 352 (Cal. Ct. App. 1967). 

   The following cases deal specifically with the impact of the heterosexual non-marital relationship of one parent on the children, where the other parent moved for a modification in custody or visitation on the basis that the relationship was harming the children. In all of these cases, the court denied the proposed change on the basis that no findings of harm or detriment to the children were found. Although these cases deal with a heterosexual non-marital relationship, the "actual harm" holdings are equally applicable to cases involving homosexual relationships. See Schwantes v. Schwantes, 121 Wis. 2d 607, 360 N.W.2d 69 (Wis. Ct. App. 1984); Moreau v. Moreau, 422 So. 2d 734 (La. Ct. App. 1982); Smith v. Smith, 396 So. 2d 252 (Fla. Dist. Ct. App. 1981); In re Marriage of Wellman, 104 Cal. App. 3d 992, 164 Cal. Rptr. 148 (Cal. Ct. App. 1980); Draper v. Draper, 403 So. 2d 989 (Fla. Dist. Ct. App. 1980); In re Marriage of Walter, 27 Ore. App. 721, 557 P.2d 57 (Or. Ct. App. 1976); Seldin v. Seldin, 55 Misc. 2d 187, 284 N.Y.S.2d 679 (N.Y. Sup. Ct. 1967).

[***48]

   D. Actual Harm and the Nexus Approach
 
As a starting point, it is important to keep in mind that a child is almost always benefitted by having the maximum opportunity to develop a close and loving relationship with both parents, especially in situations where the parents are separated or divorced. In determining which parent should be granted custody or how much visitation the non-custodial parent should be awarded, courts should not oversimplify the complex issues involved by speculating as to who is the better parent and concluding that this "better" parent should have total responsibility for the child. Such generalizing of the myriad issues at stake in custody and visitation proceedings does a great disservice to all the parties involved and will often result in a decision that is not in the best interests of the child.

   A child needs close contact with both parents, and visitation with the non-custodial parent must be as liberal as [*236] reasonably practicable, taking into account the need for stability in the children's school and home schedules, the parents' respective work schedules, and how far apart the two parents live from each other, among other factors. Visitation should[***49] only be denied in cases of abuse, neglect or harm to the child, as evidenced by a specific showing of detriment. We also want to reiterate that the case law discussed in this opinion concerning custody determinations, and the principles governing such situations, are equally applicable to visitation proceedings. This Court agrees with the Court of Special Appeals when it stated:

   "This necessary focus on the welfare of the children, rather than on the rights of the parent, dictates that we apply Davis and Swain [cases cited supra] in the context of visitation awards. Because children spend less time visiting with a non-custodial parent than living with a custodial parent, a child probably would suffer less harm by visiting with a parent living in a non-marital relationship than by living with one in such a relationship. To allow an inference of harm to the child in a visitation context while prohibiting such an inference in the custody context would not promote the goal of protecting the child's best interests."
 
Boswell, 118 Md. App. at 33, 701 A.2d at 1168-69.

   After reviewing Maryland case law on this issue and also surveying the case law of other states, we[***50] now clarify the standard a court should apply in determining the extent of restrictions on parental visitation of children in the presence of non-marital partners. [**678] As evidenced by 20 years of cases from this Court, the Court of Special Appeals, and the rulings in the majority of other states, there is no conflict between the best interests of the child standard and the requirement of an evidence-based finding of adverse impact on the child caused by a parent's non-marital relationship to justify restrictions or limitations on custody or visitation.

   In all family law disputes involving children, the best interests of the child standard is always the starting--and ending--point. We see no reason to deviate from this [*237] standard here. When we narrow the focus to proceedings involving proposed visitation restrictions in the presence of non-marital partners, courts also are to examine whether the child's health and welfare is being harmed. Once a finding of adverse impact on the child is made, the trial court must then find a nexus between the child's emotional and/or physical harm and the contact with the non-marital partner. If no clear, direct connection is found, then the non-custodial[***51] parent's visitation rights cannot be restricted.

   We want to emphasize that the above formulation does not require a court to sit idly by and wait until a child is actually harmed by liberal unrestricted visitation. If there is sound evidence demonstrating that a child is likely to be harmed down the road, but there is no present concrete finding of harm, a court may still consider a child's future best interests and restrict visitation. The need for a factual finding of harm to the child requires that the court focus on evidence-based factors and not on stereotypical presumptions of future harm.
 
Therefore, before a trial court restricts the non-custodial parent's visitation, it must make specific factual findings based on sound evidence in the record. If the trial court does not make these factual findings, instead basing its ruling on personal bias or stereotypical beliefs, then such findings may be clearly erroneous and the order may be reversed. In addition, if a trial court relies on abstract presumptions, rather than sound principles of law, an abuse of discretion may be found.

   Finally, the actual harm and nexus approach we outline today regarding visitation restrictions[***52] in the presence of non-marital partners applies to both heterosexual and homosexual relationships. We make no distinctions as to the sexual preference of the non-custodial parent whose visitation is being challenged. The only relevance that a parent's sexual conduct or lifestyle has in the context of a visitation proceeding of this type is where that conduct or lifestyle is clearly [*238] shown to be detrimental to the children's emotional and/or physical well-being.

   E. The Nexus Approach as Applied to This Case
 
In applying the nexus approach outlined in Part III. D., 352 Md. at 235, 721 A.2d at 677, while keeping in mind that a child's best interests are virtually always served by close contact with each parent, we find no clear, direct connection between the presence of Mr. Donathan and actual or potential harm to either Ryan or Amanda that justifies restricting Mr. Boswell's parental visitation. Indeed, the trial court made no evidentiary findings of detriment to either child, much less demonstrating that the alleged harm could be traced to Mr. Donathan's presence during visitation. Neither Ms. Kabriel nor Dr. Standley testified to the existence of any adverse impact on the children, mentioning only[***53] that Ryan was not comfortable around Mr. Donathan. They made no mention of Amanda being uncomfortable or upset with her father's partner. This, without more, does not come close to a finding of actual harm to the children that should result in Mr. Boswell's visitation being restricted.

   Also critical to our finding of no adverse impact on the children was that no key party in this case, including Ms. Boswell, Ms. Kabriel, and Dr. Standley, asked the trial court to restrict Mr. Boswell's visitation in any manner. Instead, the trial court acted on its own initiative, seemingly influenced by its own biases and belief that Mr. Boswell's relationship with Mr. Donathan was "inappropriate." Both Ms. Kabriel's and Dr. Standley's testimony is consistent regarding what the visitation parameters should be regarding Mr. Boswell and his children, with neither [**679] suggesting any restrictions much less the recommendation that there be no visitation in the presence of Mr. Donathan. In Davis and progeny, discussed in Part III. B., 352 Md. at 224-225, 721 A.2d at 671-672, we overturned the power of a trial court to use such blanket disapproval of a non-marital relationship as a basis for determining custody or visitation without[***54] a finding of adverse impact on the children. [*239]

   Ms. Boswell has strongly urged that her children's preference not to visit with Mr. Donathan be considered, namely Ryan's desire not to spend the night at his father's home. While we have stated that a court can consider a child's preference in custody and visitation determinations, Ryan's in camera statements to the trial judge regarding visitation in the presence of Mr. Donathan were unclear and did not demonstrate ample maturity and judgment to make a reasoned decision on this issue. n6

n6 "Although a child may volunteer such information, a child probably should not be asked directly to express his or her preferred decision in the case. By carefully choosing and phrasing the questions, a judge should be able to determine the parent with whom the child would choose to reside, whether or not a child would like to visit with the noncustodial parent, and the conditions attaching to custody and visitation. Asking the child directly for his or her preference at least gives the appearance of shifting the decision-making burden from the judge to the child, a result to be avoided." Cathy J. Jones, Judicial Questioning of Children in Custody and Visitation Proceedings, XVIII FAMILY LAW QUARTERLY 43, 89 (Spring 1984).

[***55]

   In short, because the trial court made no factual findings that evidenced actual or likely future harm to Ryan or Amanda due to contact with Mr. Donathan and it also appeared to consider the factor of Mr. Boswell's non-marital relationship to the exclusion of all others, the Court of Special Appeals was correct in vacating the visitation order. The only factual finding that the trial court made was that Dr. Standley suggested overnight visitation was inappropriate. The Court of Special Appeals held this finding clearly erroneous, as discussed in Part I., 352 Md. at 213, 721 A.2d at 666.

   Thus, while this Court sympathizes with the difficult adjustment these children may be having with not only their parent's divorce, but also with their father's homosexual lifestyle, it has not been shown to be in Ryan and Amanda's best interests to curtail visitation so as to restrict Mr. Donathan from their lives. "'Learning to cope with new adults and the disrupting effects of visitation schedules are the unavoidable consequences of divorce.'" Robinson, 328 Md. at 512, 615 A.2d at 1192 (quoting trial judge's memorandum). The reality [*240] is that their father is a homosexual who shares his home and life with Mr. Donathan. [***56] As Ms. Kabriel stated, Mr. Donathan is not going to simply "go away," even if Ryan and Amanda may wish it so. There is a maxim, enunciated by the Supreme Court, that parents are presumed to act in their children's best interests.  Parham v. J.R., 442 U.S. 584, 602, 99 S. Ct. 2493, 2504, 61 L. Ed. 2d 101, 118 (1979).

   IV.

   For the reasons stated, we affirm the judgment of the Court of Special Appeals and hold that the correct standard to be applied is the best interests of the child, with liberal visitation being restricted only upon a showing of actual or potential adverse impact to the child resulting from the contact with the non-marital partner. In the instant case, because no factual findings were made as to likely harm to Ryan or Amanda, there can be no nexus between such harm and the presence of Mr. Donathan during visitation. Thus, the order requiring Mr. Donathan to be absent when Petitioner is exercising his visitation rights with his children is vacated.
 
JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED. CASE REMANDED TO THE COURT OF SPECIAL APPEALS WITH DIRECTIONS TO REMAND THIS CASE TO THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY FOR FURTHER PROCEEDINGS CONSISTENT[***57] WITH THIS OPINION. COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID BY PETITIONER.

CONCURBY: CATHELL

CONCUR: [**680] Concurring opinion by Cathell, J.

   Filed: December 18, 1998
 
I concur with the result reached by the Court.

   Because I view the trial judge's decision in North v. North, 102 Md. App. 1, 12, 648 A.2d 1025, to have been correct based on, as it was, her opinion that Mr. North could not be trusted to keep his children from harm, an opinion supported by strong evidence of prior untrustworthy [*241] conduct by Mr. North, I do not believe the factual situation in the instant case is similar to that in North. I cannot join the majority in its reasoning that the two cases are similar. It is because I perceive a different pattern of conduct by Mr. Boswell that I concur in the result in the instant case. Simply stated, Mr. Boswell does not appear to be a Mr. North. 

ANNE ARUNDEL COUNTY, MARYLAND et al. v. CITY OF ANNAPOLIS etal. 
No. 47, September Term, 1998
 
COURT OF APPEALS OF MARYLAND
 
352 Md. 117; 721 A.2d 217; 1998 Md. LEXIS 945

 December  10, 1998, Filed

   SUBSEQUENT HISTORY: [***1]

   As Corrected December 30, 1998.

PRIOR HISTORY: Appeal from the Circuit Court for  Anne Arundel  County pursuant to certiorari to the Court of Special Appeals. Case # C-9736303 OC. Eugene M. Lerner, JUDGE.

DISPOSITION: JUDGMENT AFFIRMED; COSTS TO BE PAID BY APPELLANTS. 
CASE SUMMARY 

PROCEDURAL POSTURE:  Appellant county and others sought review of a judgment from the Circuit Court for Anne Arundel County (Maryland), which granted appellee city and other appellees' motion for summary judgment on the grounds that appellee city's annexation of certain lands did not create a prohibited enclave in violation of Md. Code Ann. art. 23A, § 19(a)(2) (1957).

OVERVIEW:  The issue presented upon review was whether an annexation by appellee city, which left an area of appellant county separated from the rest of the county by waterways on three sides and appellee on the other, violated Md. Code. Ann. art. 23A, § 19(a)(2) (1957), because it created the type of enclave prohibited by that statute. The court held that the plain language of § 19(a)(2), and the legislature's intent in enacting the statute, prevented only an annexation by a municipality that would create an enclave of unincorporated land entirely surrounded by that municipality's borders. The statute did not prohibit annexation when areas left unincorporated would be separated from other unincorporated areas by natural features, i.e. physical geography alone. The court found that the separation of fast land areas by a body of water did not alter appellant's jurisdiction over all the lands, including the waterways, in question. Those segments of fast land and navigable water remain contiguous. Therefore, the court concluded that the annexation by appellee did not violate § 19(a)(2). Accordingly, the judgment was affirmed.

OUTCOME:  The judgment, which granted appellee city and other appellees' motion for summary judgment, was affirmed. Under the plain meaning of the statute in question, the annexation by appellee city did not create a prohibited enclave because it did not create an unincorporated area completely surrounded by appellee city.

CORE TERMS:  annexation, water, enclave, municipality, waterway, municipal, contiguous, zoning, unincorporated area, real property, plain meaning, bounded, surrounded, border, fast land, annex, pier, navigable waters, peninsula, annexed, shoreline, zone, channel, legislative history, river, annexing, unincorporated territory, territory, riparian, body of water

CORE CONCEPTS -  

Governments: Legislation: Construction & Interpretation
The cardinal rule of statutory interpretation is to ascertain and effectuate the intention of the legislature. Legislative intent must be sought in the first instance in the actual language of the statute, giving those words their ordinary and natural meaning. Furthermore, where the statutory language is plain and free from ambiguity and expresses a definite and simple meaning courts normally do not look beyond the words of the statute itself to determine legislative intent.

Governments: Legislation: Construction & Interpretation
While the language of the statute is the primary source for determining legislative intention, the plain meaning rule of construction is not absolute; rather, the statute must be construed reasonably with reference to the purpose, aim, or policy of the enacting body. The court will look at the larger context, including the legislative purpose, within which statutory language appears. Construction of a statute, which is unreasonable, illogical, unjust, or inconsistent with common sense, should be avoided.

Governments: Local Governments: Boundaries
See Md. Code Ann. art. 23A, § 19(a)(2) (1957).

Governments: Local Governments: Boundaries
Turning to the language of Md. Code Ann. art. 23A, § 19(a)(2) (1957), and giving the words their ordinary and natural meanings, section 19(a)(2) allows for the annexation of real property, i.e., land in its most general sense, by any municipality, so long as that annexation does not create an unincorporated area, which is enclosed on all sides by an area currently, or proposed to be, within the city limits of Annapolis.

Governments: Local Governments: Boundaries
Statutes and case law extend the jurisdiction of counties out to the channel or middle of bodies of water that serve as boundaries between counties. A natural corollary is that a county's general jurisdiction extends to bodies of water entirely within its boundaries except to the extent preempted by state law.

Governments: Local Governments: Boundaries
Municipal corporations generally may extend their boundaries across rivers and streams without violating a contiguous land requirement.

Governments: State & Territorial Governments: Boundaries
The navigable waterways within Maryland's boundaries and the lands beneath them generally are "held" by the state for the benefit of the inhabitants of Maryland. These waterways are not held by the state absolutely, but as a quasi trustee for the public benefit and to support the rights of navigation and fishery to which the entire public are entitled. Therefore, the state does not hold those areas to the exclusion of all others.

Governments: Local Governments: Boundaries
Subject to the state's paramount rights and the doctrine of preemption, a county may exercise authority over waters within its boundaries.

Governments: Local Governments: Boundaries
Unless a statute provides to the contrary, the jurisdiction of any county generally extends to the channel of any river that serves as a boundary between it and another county.

Governments: Local Governments: Boundaries
Municipalities are required to annex contiguous areas, yet no Maryland case ever has held specifically that a municipality cannot annex across a navigable body of water. Other states that have addressed this issue have concluded that municipal corporations may extend their boundaries across a waterway even if the annexed land would be separated completely from the original city or town limits by that body of water.

COUNSEL: ARGUED BY Sarah M. Iliff, Assistant County Attorney (Phillip F. Scheibe, County Attorney, on brief) of Annapolis, MD, FOR APPELLANTS.
 
ARGUED BY Paul G. Goetzke. ARGUED BY Jonathan A. Hodgson (Hyatt, Peters & Weber, P.A. all on brief) of Annapolis, MD, FOR APPELLEES.

JUDGES: ARGUED BEFORE Bell, C.J.; Eldridge, Rodowsky, Chasanow, Raker, Wilner, and Cathell, JJ. Opinion by Cathell, J.

OPINIONBY: CATHELL

OPINION: [*120]

   [**218] Opinion by Cathell, J.

   Filed: December 10, 1998
 
In this case we are called upon to determine whether an annexation by the City of Annapolis, which left an area of Anne Arundel County separated from the rest of the County by waterways on three sides and the City of Annapolis on the other, violated Maryland Code (1957, 1998 Repl. Vol.), Article 23A, section 19(a)(2), because it created the type of enclave prohibited by that statute. We hold that under the plain meaning of the statute, the annexation by the City of Annapolis did not create a prohibited enclave because it did not create an unincorporated area completely surrounded by the City of Annapolis. Accordingly, we shall affirm the judgment of the trial court.

   [**219] I. Facts and Procedural History

    The City of Annapolis (City of Annapolis or Annapolis) sits on a peninsula called the Annapolis Neck. On the easterly edge of the Annapolis Neck is the Chesapeake Bay and on the northern and southern[***2] boundaries of the neck are the Severn and South Rivers. Most of Annapolis is located along the peninsula's northeastern edge, off of the Severn River. [*121] Creeks, inlets, and coves pierce the body of the peninsula, creating other smaller peninsulas and projections of land.

   Farmers National Land Corporation (Farmers) owns a 103.647 acre tract of land in Anne Arundel County (Chrisland property) situated between Annapolis and one of the southerly smaller peninsulas that branches out from the main peninsula. That smaller peninsula is bounded by the South River, Church Creek, and Crab Creek and is referred to as the Bywater Road Peninsula or Bywater Peninsula. The Chrisland Corporation (Chrisland) is the contract purchaser of this tract of land.
 
On May 9, 1995, Farmers and Chrisland petitioned the City of Annapolis to annex the Chrisland property and include it within the boundaries of Annapolis. On November 4, 1996, the City Council adopted a resolution annexing this property, effective December 19, 1996. The result of the annexation was to extend the city's boundary into the upper portion of the Bywater Peninsula, leaving the lower portion of the peninsula beyond the new city boundary[***3] remaining under Anne Arundel County (County) jurisdiction. The non-annexed portion on the lower southern end of the Bywater Peninsula is now bounded by the newly annexed part of Annapolis to the north and on all other sides by the waters of the South River and Church and Crab Creeks, all of which are within Anne Arundel County. These waterways are not within the corporate boundaries or limits of the City of Annapolis. Thus, because of the annexation, a portion of County "fast" land is separated from the rest of "fast" land areas of the County.

   The County, the original plaintiff below, and Intervenor-Plaintiffs Diana H. Josephson, the Bywater Church and Crab Creek Association, Barbara Samorajczyk, and the Annapolis Neck Peninsula Federation, appellants, brought suit against the City of Annapolis, Farmers, and Chrisland, appellees, in the Circuit Court for Anne Arundel County seeking a declaratory judgment and other relief. Appellants challenged the annexation at issue as creating an enclave prohibited under [*122] Maryland Code (1957, 1998 Repl. Vol.), Article 23A, section 19(a)(2). n1

n1 All statutory references shall be to Article 23A, section 19(a)(2), unless otherwise indicated.

[***4]

   After a hearing on cross-motions for summary judgment, in a written opinion and order docketed October 29, 1997, the circuit court found that Annapolis's annexation of the Chrisland property did not create a prohibited enclave and granted appellees' motions for summary judgment.

   The County filed a timely appeal to the Court of Special Appeals on November 25, 1997, and the remaining appellants filed their appeal on November 26, 1997. Appellee City of Annapolis filed a cross-appeal on December 3, 1997. n2 This Court issued a writ of certiorari on its own motion before the intermediate appellate court heard arguments on the matter in order to address the important issues raised by this appeal.

n2 Appellees Farmers and Chrisland did not file a cross-appeal.

   Appellants present the following question for our review:

   Should the legislature's intent govern interpretation of Article 23A, § 19(a)(2) where a strictly literal reading of the law produces an illogical and unreasonable result which permits creation of the[***5] very tax islands which the law was drafted to prohibit?

   Appellee and cross-appellant City of Annapolis presents the following question:
 
Whether an annexation that left unincorporated land bounded on several sides by waters located in the county offends a statute precluding annexations that create an unincorporated area bounded on all sides by real property in the municipality[?]
 
[**220] Our task is to determine the meaning of section 19(a)(2) and then to resolve whether Annapolis's annexation of the Chrisland property violated this statutory provision. [*123]

   II. Discussion

   A. Statutory Interpretation: Plain Meaning

   We have said that "the cardinal rule of statutory interpretation is to ascertain and effectuate the intention of the legislature." Oaks v. Connors, 339 Md. 24, 35, 660 A.2d 423, 429 (1995). Legislative intent must be sought in the first instance in the actual language of the statute, "giving those words their ordinary and natural meaning." Lewis v. State, 348 Md. 648, 653, 705 A.2d 1128, 1131 (1998). See also Marriott Employees Fed. Credit Union v. Motor Vehicle Admin., 346 Md. 437, 444-45, 697 A.2d 455, 458 (1997); Stanford v. Maryland Police Training [***6]  & Correctional Comm'n, 346 Md. 374, 380, 697 A.2d 424, 427 (1997) (quoting Tidewater v. Mayor of Havre de Grace, 337 Md. 338, 344, 653 A.2d 468, 472 (1995)); Coburn v. Coburn, 342 Md. 244, 256, 674 A.2d 951, 957 (1996); Romm v. Flax, 340 Md. 690, 693, 668 A.2d 1, 2 (1995); Oaks, 339 Md. at 35, 660 A.2d at 429; Mauzy v. Hornbeck, 285 Md. 84, 92, 400 A.2d 1091, 1096 (1979); Board of Supervisors v. Weiss, 217 Md. 133, 136, 141 A.2d 734, 736 (1958). Furthermore, where the statutory language is plain and free from ambiguity and expresses a definite and simple meaning, courts normally do not look beyond the words of the statute itself to determine legislative intent. Marriott Employees, 346 Md. at 445, 697 A.2d at 458; Kaczorowski v. Mayor of Baltimore, 309 Md. 505, 515, 525 A.2d 628, 633 (1987); Hunt v. Montgomery County , 248 Md. 403, 414, 237 A.2d 35, 41 (1968).

   In Tracey v. Tracey, 328 Md. 380, 387, 614 A.2d 590, 594 (1992), however, this Court opined, in reference to construing an alimony statute:
 
While the language of the statute is the primary source for determining legislative intention, the plain meaning rule of construction is not[***7] absolute; rather, the statute must be construed reasonably with reference to the purpose, aim, or policy of the enacting body. The Court will look at the larger context, including the legislative purpose, within which statutory language appears. Construction of a statute [*124] which is unreasonable, illogical, unjust, or inconsistent with common sense should be avoided. [Citations omitted.]

   Our inquiry into the meaning of section 19(a)(2) begins with the language of the statute. Section 19 provides, in pertinent part:

   (a) Legislative body authorized to enlarge corporate boundaries. -- The legislative body, by whatever name known, of every municipal corporation in this State may enlarge its corporate boundaries as provided in this subheading; but this power shall apply only to land:

   (1) Which is contiguous and adjoining to the existing corporate area; and
 
(2) Which does not create any unincorporated area which is bounded on all sides by real property presently within the corporate limits of the municipality, real property proposed to be within the corporate limits of the municipality as a result of the proposed annexation, or any combination of such properties.
 
The annexation[***8] of the Chrisland property offends the plain language of section 19(a)(2) if it (1) created an unincorporated area, here, the Bywater Peninsula area, and (2) that unincorporated area is or would be bounded on all sides, (3) by areas within, or that after the annexation would be within, the corporate limits of the City of Annapolis.

   Appellees argue that Annapolis's annexation of the Chrisland property does not violate the plain meaning of section 19(a)(2) because the unincorporated area "is bounded on only one side by real property within the corporate limits of Annapolis." The remaining sides are bounded by waterways that are within the County. Appellants, on the other hand, contend that the plain meaning of the language of the statute is contrary to the Legislature's intent because the "effect" of this annexation is to isolate this property into a prohibited enclave. Appellants urge this Court to analyze the legislative history of this provision and to hold that the annexation [**221] creates an enclave of the type prohibited by section 19(a)(2). Appellees respond that, notwithstanding that no need exists [*125] for us to look beyond the plain meaning of the statute, legislative history nonetheless[***9] supports their position that the annexation of the Chrisland property does not create the type of enclave or tax island n3 the statute was designed to prevent.

 n3 We shall use these terms interchangeably.

   We believe the plain meaning of the language of section 19(a)(2) is clear. At the heart of this issue are the meanings of the words "bounded on all sides," "real property," and "within" the corporate limits. First, the term "bounded" typically means "having bounds or limits." THE RANDOM HOUSE DICTIONARY OF THE ENGLISH LANGUAGE 175 (unabr. ed. 1983) [hereinafter RANDOM HOUSE]. "Bounds," as relevant to this matter, means "territories on or near a boundary" or "land within boundary lines." RANDOM HOUSE, at 174. "Real property" is defined in BLACK'S LAW DICTIONARY 847 (6th abr. ed. 1991):

   Land, and generally whatever is erected or growing upon or affixed to land. Also rights issuing out of, annexed to, and exercisable within or about land. A general term for lands, tenements, and hereditaments; property which, on the [***10]death of the owner intestate, passes to his heir.

   Real or immovable property consists of: Land; that which is affixed to land; that which is incidental or appurtenant to land; that which is immovable by law . . . .
 
"Real property" is defined similarly in RANDOM HOUSE, at 1196, as "an estate or property consisting of lands and of all appurtenances to lands, as buildings, crops, or mineral rights."

   "Land" is defined in BLACK'S LAW DICTIONARY, at 606:
 
In the most general sense, comprehends any ground, soil, or earth whatsoever; including fields, meadows, pastures, woods, moors, waters, marshes, and rock. In its more limited sense, "land" denotes the quantity and character of the interest or estate which a person may own in land. It may include any estate or interest in lands, either legal or equitable, as well as easements and incorporeal hereditaments. The land is one thing, and the estate in land is [*126]another thing, for an estate in land is a time in land or land for a time.

   Land is the material of the earth, whatever may be the ingredients of which it is composed, whether soil, rock, or other substance, and includes free or occupied space for an indefinite[***11] distance upwards as well as downwards, subject to limitations upon the use of airspace imposed, and rights in the use of airspace granted, by law. . . .

   The term may be used interchangeably with "property"; it may include anything that may be classed as real estate or real property.
 
Finally, "within" means "6. in or into the interior of or the parts or space enclosed by: within a city or its walls." RANDOM HOUSE, at 1640.

   "Land" refers to waters as well as dry or "fast" land. 1 TIFFANY, REAL PROPERTY (3d ed. 1939 & 1998 Cum. Supp.), section 3, at 5, includes among its definitions of real property "a comprehensive expression denoting lands, tenements and hereditaments." In section 10, 1 TIFFANY, at 13, notes that "land includes whatever is parcel of the terrestrial globe, or is permanently affixed to such parcel." In section 722, discussing riparian rights, 3 TIFFANY, at 117, states that "the right of the owner of riparian land . . . is a corporeal hereditament, incident and annexed to the land, and which passes on transfer thereof as a part and parcel of it. . . . It is like the land itself, real property . . . ." Accordingly, the[***12] term "real property" includes "land" in its broadest sense -- including air space, the surface, the subsurface, and waters.

   Turning to the language of the statute and giving the words their ordinary and natural meanings, section 19(a)(2) allows for the annexation of real property, i.e., land in its most general sense, by Annapolis or any other municipality, so long as that annexation does not create an unincorporated area, such as the remaining County-controlled Bywater Peninsula, which is enclosed on all sides by an area currently, or proposed to be, within [**222] the city limits of Annapolis. This is not what occurred in the case before us. [*127] 

   To be sure, the annexation of the Chrisland property created a pocket of County fast land separated from other County fast land by water on three sides and Annapolis on the remaining side. But the water surrounding the unincorporated area on three sides is not within Annapolis. Simply stated, by annexing the Chrisland property, Annapolis does not surround or enclose on all sides the remaining Bywater Peninsula area. The waters surrounding the Bywater Peninsula are not presently and will not be incorporated as part of the municipality of Annapolis. [***13] That the annexation of the Chrisland property creates an area of Anne Arundel County separated from the rest of the County by the municipality on only one side and by the waterways on the other sides is of no consequence under this statute. Under the plain meaning of section 19(a)(2), that separate tract of land is not bounded on all sides by an area within the corporate limits of the City of Annapolis and, therefore, the annexation is not prohibited by this statute.

   B. Legislative Intent

   Notwithstanding that we believe the plain meaning of section 19(a)(2) is clear, we shall also examine the history of this statute to confirm whether the legislative intent is expressed in the plain language. In doing so, we believe the history behind this statute supports our conclusion that the annexation of the Chrisland property did not violate section 19(a)(2).

   We turn first to the Session Laws. The title section of the bill ultimately passed into law states:

   FOR the purpose of providing that an annexation by a municipal corporation may not create an enclave of unincorporated territory within the municipality; providing that, under certain conditions, the legislative body of a municipal [***14]corporation need not obtain the consent of certain persons in proposing to alter the corporate boundaries through annexation; providing that under certain conditions, a resolution of annexation is not subject to certain referendum provisions; providing that this waiver [*128] of consent and referendum provisions shall be void as of a certain date . . . .
 
1983 Md. Laws, Chap. 593 (emphasis added). This bill came about as a compromise between two proposed Senate Bills, S.B. 100 and S.B. 551. Prior to this time,
 
annexation law required that 25% of the residents registered as county voters as well as owners representing a total of 25% of the value of the real property in the area must give their approval before a municipality may annex a piece of land. These requirements . . . resulted in "tax islands" or enclaves of unannexed land within many municipalities.
 
Hearing on S.B. 551 Before the Senate Constitutional and Pub. Law Comm. 1 (Feb. 24, 1983) (testimony of City of Rockville). n4 At the time of the Legislature's consideration of S.B. 551, some municipalities had failed in attempting to annex certain property, often due to the objection, through referenda, of the citizens within[***15] those areas the municipalities sought to annex. The referendum process, therefore, sometimes created pockets of unincorporated area totally surrounded and enclosed by the incorporated area of the annexing municipality. The result was forty-five different enclaves throughout the state, with seven in Rockville alone. The problems inherent to enclaves or tax islands were that the residents within the resulting enclaves paid only county taxes yet used city facilities and services such as snow removal, parks, police protection, and health and environmental services. See id. Additionally, the enclaves caused general confusion because citizens were unclear as to the enclaves' basic geographic location. See id. at 2. See also Letter from Bd. of County Comm'rs of Frederick County, Maryland, to Chairman Norman R. Stone and the Senate Constitutional and Pub. Law Comm. 1 (Jan. 31, 1983) (explaining [**223] that enclaves often resulted [*129] in "confusion in the delivery of public services and facilities . . . in the enclave."). S.B. 551 was drafted to rectify this problem. As proposed, S.B. 551 would lift the referendum requirement for a short time and under certain conditions so the various municipalities[***16] could annex enclaves existing at the time without resistance from the landowners or residents.

n4 When attempting to discern the intention of the General Assembly, only its intent is relevant, not the intent of the witnesses for and against the proposal. Although the comments of those witnesses do not reflect legislative intent directly, they do help indirectly by identifying the issues the Legislature sought to address.

   S.B. 100 was being considered by the Legislature at nearly the same time as S.B. 551. S.B. 100 sought to prohibit the creation of future enclaves by municipalities. n5 The Summary of the Senate Constitutional and Public Law Committee Report for S.B. 100 stated:

n5 In sum, S.B. 551, as proposed, addressed the termination of existing enclaves. S.B. 100, as proposed, addressed the prohibition of future enclaves. 

 
SUMMARY[***17] OF BILL:
 
This bill provides that an annexation by a municipal corporation may not create an enclave of unincorporated territory within the municipality.
 
The bill retains the existing prohibition on enlarging a municipality by incorporating non-contiguous territory.
 
BACKGROUND:
 
There are 45 enclaves in Maryland spread among 17 municipalities.
 
LEGISLATIVE INTENT:
 
The intent of this bill is to prevent municipal corporations from creating enclaves (unincorporated territory completely surrounded by the municipality) when they enlarge their corporate limits.
 
The purpose of the bill is to prevent any increase in the number of existing enclaves.
 
Department of Legislative Reference, Comm. Report System, Summary of Report of Senate Constitutional and Pub. Law Comm., S.B. 100 (1983). At some point, S.B. 100 was voted down, but an amendment to S.B. 551 later added essentially the same language from S.B. 100 prohibiting future enclaves. In a letter supporting the amendment of S.B. 551 to include [*130] the language from S.B. 100, the Executive Director of the Maryland Municipal League tellingly stated that "this bill only applies to those areas bounded on[***18] all sides by the municipality. Some enclaves are bounded on one side by federal land. These would not be included in the bill." Letter from Jon C. Burell, Executive Dir., Maryland Municipal League, to the Maryland Senate 1 (Mar. 1, 1983). Amended S.B. 551 ultimately was passed as 1983 Maryland Laws, Chapter 593.

   Appellants argue that to hold as we do today promotes an illogical interpretation of section 19(a)(2) because "it is clear from the legislative history that the legislature's primary intention was to prohibit creation of 'tax islands' which have the effect of isolating property into enclaves." In support of this assertion, appellants argue that the annexation in the case sub judice, because of the geographic uniqueness of the Bywater Peninsula, isolates the peninsula's residents from the jurisdiction to which they pay taxes, Anne Arundel County, and creates the same practical difficulties of the "tax islands" that existed, for example, in the City of Rockville.

   Appellees, on the other hand, maintain that the legislative history makes clear that the statute was intended to be read more narrowly to prohibit the creation of enclaves of unincorporated areas situated entirely[***19] within the annexing municipality, such as what had occurred previously in Rockville and other municipalities. Specifically, appellee Annapolis states that "the annexation before this Court did not create any unincorporated area within Annapolis; it left unincorporated territory outside of the City." An area of land left surrounded by water within the County on three sides and a municipality on the other, appellees argue, is not the type of enclave contemplated by the Legislature.

   Our research into the legislative history behind section 19(a)(2) supports the interpretation that the type of enclave prohibited by that statute includes only unincorporated areas completely surrounded on all sides by the incorporated area of the annexing municipality. Throughout various documents in the bill files of S.B. 551 and S.B. 100, phrases suggest the [*131] notion of a municipality encircling an unincorporated area. See Department of Legislative Reference, at 1 (summarizing [**224] bill by stating that annexation by incorporated municipality "may not create an enclave of unincorporated territory within the municipality" and describing an enclave as an "unincorporated territory[***20] completely surrounded by the municipality" (emphasis added)); Department of Fiscal Services, Revised Fiscal Note to S.B. 551, at 1 (May 4, 1983) ("This enrolled bill provides that the legislative body of an incorporated municipality may annex . . . [that] which does not create an unincorporated area which is bounded on all sides by land within the corporate limits of the municipality." (emphasis added)); Written Statement from Maryland Ass'n of Counties, Inc., to the Senate Constitutional and Pub. Law Comm. 1 (Jan. 26, 1983) (supporting S.B. 100 and describing its effect as preventing enclaves of "unincorporated property within incorporated municipalities" (emphasis added)). The title clause of Chapter 593 likewise supports this position. 1983 Md. Laws, Chap. 593 (providing that the "annexation by a municipal corporation may not create an enclave of unincorporated territory within the municipality" (emphasis added)).

   In addition to the obvious plain language of the statute, we believe the legislative history makes clear that unincorporated areas completely surrounded and enclosed by the city limits of the incorporated annexing municipality are the only types[***21] of enclaves intended to be prohibited by this statute. 

   C. Other Issues

   Having discerned the plain meaning of section 19(a)(2) and having determined that the legislative history supports that plain meaning, we also shall address appellants' related argument that because the Bywater Road Peninsula is bordered on three sides by Church and Crab Creeks and the South River, it is surrounded by State land and, therefore, separated from Anne Arundel County as an enclave. n6 Appellants essentially [*132] argue that the submerged lands are not County lands but lands of the State and, therefore, help to create a "natural" barrier separating the Bywater Peninsula from the rest of Anne Arundel County.

n6 We note as we respond to the argument, however, that section 19(a)(2) addresses only enclaves surrounded by municipalities. Additionally, we note that we issued a writ of certiorari on our own motion. As we have indicated, appellants presented the issue of whether the plain language of the statute comported with the intent of the Legislature in their brief then before the Court of Special Appeals. The other issues we shall address also were presented in that brief. Our issuance of the writ was without limitation.

[***22]

   After reviewing two areas of law tangentially related to this issue, we are convinced the County is incorrect. First, as we shall indicate, statutes and case law extend the jurisdiction of counties out to the channel or middle of bodies of water that serve as boundaries between counties. A natural collorary is that a county's general jurisdiction extends to bodies of water entirely within its boundaries except to the extent preempted by State law. Second, municipal corporations generally may extend their boundaries across rivers and streams without violating the "contiguous" land requirement. If a municipal corporation like Annapolis can exercise such an annexation and call it "contiguous," then two portions of county fast land left separated by bodies of navigable water after a municipal annexation also must be considered contiguous. 

   1. County Jurisdiction over Navigable Waters

   The navigable waterways within Maryland's boundaries and the lands beneath them generally are "held" by the State for the benefit of the inhabitants of Maryland. See Holiday Point Marina Partners v. Anne Arundel County, 349 Md. 190, 204-05, 707 A.2d 829, 836 (1998); People's Counsel v. Maryland [***23] Marine Mfg. Co., 316 Md. 491, 499, 560 A.2d 32, 36 (1989); Board of Pub. Works v. Larmar Corp., 262 Md. 24, 46, 277 A.2d 427, 437 (1971) (citing Kerpelman v. Board of Pub. Works, 261 Md. 436, 445, 276 A.2d 56, 61 (1971)). n7 See also [*133]Smith v. Maryland, [**225] 59 U.S. (18 How.) 71, 74-75, 15 L. Ed. 269 (1855); Harbor Island Marina, Inc. v. Calvert County, 286 Md. 303, 314, 407 A.2d 738, 744 (1979); Caine v. Cantrell, 279 Md. 392, 396, 369 A.2d 56, 58 (1977); Department of Natural Resources v. Mayor of Ocean City, 274 Md. 1, 5, 332 A.2d 630, 633 (1975); Causey v. Gray, 250 Md. 380, 387, 243 A.2d 575, 581 (1968); Green v. Eldridge, 230 Md. 441, 446, 187 A.2d 674, 677 (1963); Clark v. Todd, 192 Md. 487, 492, 64 A.2d 547, 549 (1949); Adams v. Carey, 172 Md. 173, 182, 190 A. 815, 819-20 (1937). These waterways are not held by the State "absolutely, but as a quasi trustee for the public benefit and to support the rights of navigation and fishery to which the entire public are entitled." Mayor of Baltimore v. Baltimore & Philadelphia Steamboat Co., 104 Md. 485, 494, 65 A. 353, 356 (1906). See also Bausch & Lomb Inc. v. Utica Mutual Insur. Co., [***24]330 Md. 758, 783, 625 A.2d 1021, 1033 (1993). Therefore, the State does not hold those areas "to the exclusion of all others." BLACK'S LAW DICTIONARY 565 (6th ed. 1990) (definition of "exclusively").

n7 This is true except to the extent that submerged lands were patented to private ownership prior to 1862. See generally 1862 Md. Laws, Chap. 129; Wagner v. City of Baltimore, 210 Md. 615, 124 A.2d 815 (1956); Marquardt v. Papenfuse, 92 Md. App. 683, 610 A.2d 325, cert. denied, 328 Md. 93, 612 A.2d 1316 (1992).

    Subject to the State's paramount rights and the doctrine of preemption, a county, as we shall discuss, may exercise authority over waters within its boundaries. Our holding, therefore, is based upon the jurisdiction of Anne Arundel County over the waters surrounding the Bywater Peninsula, not any traditional concept of ownership. It is true, as the County maintains, that, as a political subdivision of the State, its jurisdiction over these waterways is subject to the paramount jurisdiction[***25] of the State. The General Assembly, nonetheless, has granted counties numerous powers to regulate within their navigable waters and adjacent lands.

   First, we note the law governing borders between counties. Unless a statute provides to the contrary, the jurisdiction of Anne Arundel County, or any other county, generally extends to the channel of any river that serves as a [*134]boundary between it and another county--the Patapsco and Patuxent Rivers, for example. See Md. Code (1957, 1998 Repl. Vol.), Art. 75, § 81; Department of Natural Resources v. France, 277 Md. 432, 463, 357 A.2d 78, 95 (1976) (holding jurisdiction of Wicomico and Somerset Counties intersects at channel of Wicomico River). n8 Since colonial times, several counties have been created with navigable waters serving as their borders with all lands between the channel or middle of those waters and the shoreline belonging to each respective county sharing the border. n9 See generally Raab v. State, 7 Md. 483 (1855) (resolving jurisdiction over the main channel of the Patapsco River between Baltimore City, Baltimore County, and Anne Arundel County).

n8 Anne Arundel County and its sister counties also have jurisdiction to the geographic middle of any body of water other than a river, such as the Chesapeake Bay, which serves as its border. Md. Code (1957, 1998 Repl. Vol.), Art. 75, § 82; France, 277 Md. at 462-63, 357 A.2d at 95.

[***26] 

n9 In 1704, eleven counties existed in Maryland. Anne Arundel was created in 1650. Baltimore County was created in 1659-60, Calvert in 1654, Cecil in 1674, Charles in 1658, Dorchester in 1668-69, Kent in 1640-42, Prince George's in 1695, St. Mary's in 1637, Somerset in 1666, and Talbot in 1661-62. See France, 277 Md. at 456-57 n.9, 357 A.2d at 92 n.9. The remaining counties were created thereafter, with Garrett, in 1872, being the last county created. See id. at 439 n.5, 357 A.2d at 82 n.5.

   In the venue case of Acton v. State, 80 Md. 547, 548-50, 31 A. 419, 419-20 (1895), we examined whether Anne Arundel County or another political subdivision had jurisdiction over the Patapsco River south of its main channel. The defendant in that case had been charged with violating the Sabbath in a building erected over the waters south of the channel, allegedly within the jurisdiction of Anne Arundel County. The Court determined that the Act of 1704 extended the jurisdiction of Anne Arundel County to the channel of the Patapsco River. Acton, 80 Md. at 549, 31 A. at 420. Accordingly, the jurisdiction[***27] of Anne Arundel County over navigable waters within its boundaries was, at least for venue purposes, specifically recognized over 100 years ago. [*135]
 
Western Maryland Tidewater Railroad v. Mayor of Baltimore, 106 Md. 561, 68 A. 6 (1907), also addressed local jurisdiction over the Patapsco River. In that case, we held that the construction of private piers, wharves, or docks from the shoreline of Baltimore [**226] City over the northern half of the Patapsco River, which was within Baltimore County, extended the City's boundaries over the river. This Court refused to overturn Raab and Acton, which would have given jurisdiction over the northern half of the main channel of the Patapsco River entirely to Baltimore City instead of Baltimore County. We held instead that jurisdiction over the waters covered by the piers, wharves, and docks had been transferred from Baltimore County to the City by the construction of those structures from the City's shoreline. Western Maryland Tidewater Railroad, 106 Md. at 572-73, 68 A. at 9-10.

   Finally, by the time we decided McGraw v. Merryman, 133 Md. 247, 104 A. 540 (1918), the General Assembly had passed the Act of 1918, which extended the boundaries of Baltimore City by annexing[***28] part of Baltimore and Anne Arundel Counties into the City's limits. The Act was challenged as unconstitutional. One argument proposed to the Court was that part of the land to be annexed impermissibly was not contiguous with the City. Under the previous cases, Baltimore City's jurisdiction stopped at the northern shoreline of the Patapsco River. The northern half of the Patapsco River was still within Baltimore County limits and all land and water south of the channel were within Anne Arundel County. It was argued in McGraw that the Legislature's extension of the City's boundaries south across the Patapsco River and over the area of two separate counties violated constitutional provisions because the new area in the "outer" jurisdiction, Anne Arundel County, was not contiguous to the original boundaries of Baltimore City in that Anne Arundel County and the City had previously been separated by the part of the Patapsco River then within Baltimore County.  McGraw, 133 Md. at 258-59, 104 A. at 544. This Court found this argument without merit because it made "no possible difference that parts of two counties were affected, instead of only one" in determining whether the [*136]lands were contiguous[***29] to Baltimore City.  McGraw, 133 Md. at 260, 104 A. at 545. Accordingly, the entire area, annexed "together with the territory included in the city prior to the passage of thee Act, constituted one [contiguous] body." Id.

   Turning to the case before us, if Anne Arundel County can exercise jurisdiction over one-half of a river between the shoreline and the middle of the channel that constitutes its boundary, then it clearly can exercise jurisdiction, subordinate to the jurisdiction of the State, from shore to shore over bodies of water entirely within its borders. This includes the South River and the two creeks bordering the Bywater Peninsula, which are entirely within the County.

   Our analysis does not end with the law concerning county borders over water. There are many ways counties exercise jurisdiction over navigable waterways within their borders. For example, counties can enforce their zoning powers over navigable waterways when permanent docks, piers and wharves are built over the waterways. Recently in Holiday Point Marina Partners, 349 Md. at 193-94, 707 A.2d at 831, one of the issues was "whether [a zoning] ordinance limiting the number of boat slips and the situs of marine[***30] facilities, for the purpose of protecting shellfish beds which lie beneath the tidal waters of the State, is within the zoning authority." We stated, citing Maryland Marine Manufacturing, 316 Md. at 498, 560 A.2d at 35, and Harbor Island Marina, 286 Md. at 317-23, 407 A.2d at 746-49, that "a county's zoning authority ordinarily encompasses piers and wharves that are attached to the land." 349 Md. at 204, 707 A.2d at 836. Holiday Point Marina Partners had raised the question of "whether . . . the Anne Arundel County Code, which zones improvements attached to riparian land, is invalid because the ordinance takes into account the health of shellfish beds. The concern is that the shellfish beds in question are on land beneath tidal waters and, therefore, are generally owned by the State." Holiday Point Marina Partners, 349 Md. at 204-05, 707 A.2d at 836.

   We answered: [*137]

   The Harbor Island and Maryland Marine opinions clearly support Anne Arundel County's contention that its zoning authority encompasses the extension of Holiday Point's piers for the purpose of creating additional boat slips. . . . The construction or extension of piers to create boat slips is obviously for the purpose [**227] of access to the water. [***31] Under the Harbor Island and Maryland Marine opinions, this is both within an adjacent owner's riparian rights and within a county's zoning authority. . . .

   Furthermore, as long as a zoning ordinance is otherwise within a county's zoning authority, the fact that a purpose of the regulation was to protect shellfish beds does not render the ordinance invalid.
 
Id. at 208, 707 A.2d at 838.

   In Maryland Marine Manufacturing, 316 Md. at 493, 560 A.2d at 33, we framed the issue on appeal:

   This case involves the right of riparian owners to construct improvements from their land into the tidal waters of the State, and the zoning power of counties in relation to these improvements. Specifically, the question presented is whether current Baltimore County Zoning Regulations (BCZR) are applicable to a riparian owner's proposed construction of a "floating" restaurant on a pier extending 125 feet from the shoreline into the water in front of the owner's property.
 
In that case, Maryland Marine had petitioned the Zoning Commissioner to determine the legality of its proposed plan to construct a restaurant on top of piers and pilings that would extend over Frog Mortar Creek. [***32] The issue that had been presented to the Zoning Commissioner was whether
 
"zoning lines on land extend and comprehend tide water rivers, lakes and running streams or land under water and improvements proposed or erected thereon and apply to riparian owners; further to determine whether or not the Baltimore County Zoning Regulations apply to riparian [*138] rights and to improvements erected on tidal waters or land under water."
 
Id. at 494, 560 A.2d at 33.

   The Zoning Commission found that the County had the authority to regulate the operation of facilities in tidal water areas, noting that it was not the intention of County authorities "to permit random development off shore as otherwise would not be allowed on dry land without being subject to regulations or laws." Id. at 495, 560 A.2d at 34.

   Ultimately, we held that the scope of a charter county's zoning power "extends only as far as the scope of the right to construct riparian improvements."  Id. at 498, 560 A.2d at 35. But we also noted, relying in part on Harbor Island Marina, 286 Md. at 322, 407 A.2d at 738, that when riparian improvements are permitted to be built into waterways previously controlled by the[***33] State,
 
". . . the land utilized in their construction, which prior to completion belonged to the State, for all practical purposes becomes a part of the fast land. Thus, any limitation upon the county's ability to zone which arises because the land in question belongs to the State does not apply to improvements attached to riparian land."
 
Maryland Marine Mfg., 316 Md. at 500, 560 A.2d at 36 (quoting Harbor Island Marina, 286 Md. at 322, 407 A.2d at 748).

   In Harbor Island Marina, 286 Md. at 319, 407 A.2d at 747, we held that counties have the power to regulate, through zoning laws, the riparian water rights that coexist with the ownership of waterfront property. At issue in Harbor Island Marina was "whether Article 66B of the [Maryland] Code authorized the county to regulate, through zoning, the navigable waters located within its boundaries." Id. at 309, 407 A.2d at 741. We began by noting that
 
"[A] county may exercise [only] 'the authority with which [it has] been expressly, or as a reasonable implication, invested by law.'" . . . Therefore, whether Calvert County may zone the area covered by the navigable waters found within [*139] its borders[***34] depends on the language of any statute which delegates or otherwise affects the county's authority to zone.
 
Harbor Island Marina, 286 Md. at 309-10, 407 A.2d at 742 (second and third alterations in original) (citations omitted). That statute, Article 66B, section 4.01 of the Maryland Code, stated: "The legislative body of counties . . . are hereby empowered to regulate and restrict . . . the location and use of buildings, signs, structures and land . . . ." We noted that the section's "language does not, by specific delineation, empower Calvert County to zone the navigable waters and their bottoms found within its [**228] borders, but neither does it specifically prohibit such regulation of these areas." Id. at 311, 407 A.2d at 742. As a result, we reasoned that "the key words in the statute bearing on the issue before us are 'land' and 'lands' . . . . Whether the ability to zone 'land' includes the authority to zone that which is submerged under water depends on a reasonable construction of these words . . . ." Id. at 312, 407 A.2d at 743.

   We first discussed one dictionary definition that appeared to limit the word "land" to "dry, solid earth." But we then cited approvingly another definition from[***35] the same dictionary that said "land" included "e.g., 'the surface of the earth and all its natural resources;' 'any ground, soil, or earth . . . and everything annexed to it whether by nature (as trees, water) or by man . . .'[]." Id. We determined that the broader interpretation was appropriate:
 
To limit the power to zone to only the dry land within a county places an unwarranted restriction on the exercise of the police power which in no way was indicated by the Legislature, and hampers the purpose for which the statute was passed.

   Moreover, the word "land" has been the subject of numerous judicial constructions. . . . "'Land,' . . . comprehends tide water, rivers, lakes, and running streams, as so much land covered with water . . .".
 
Harbor Island Marina, 286 Md. at 312-13, 407 A.2d at 743-44 (footnote omitted) (citation omitted). [*140]

   This Court went on to discuss, at length, the State's historical and traditional treatment of the bottoms of navigable waterways, noting that they are considered to be held by the State for its people. We, in that context, discussed the overarching zoning rule that land owned by the State is not subject to local zoning regulation. Because submerged lands[***36] belong to the State, this precept appeared "to prohibit the application of the zoning laws to these State-owned lands." Harbor Island Marina, 286 Md. at 315, 407 A.2d at 745.
 
We then noted, however, the extensive history of riparian ownership rights, including the right of private land owners to "wharf out" over the State's waters. We stated:
 
There is, therefore, really no reason why this right should be treated differently from the other privileges pertaining to the ownership of real property, including restrictions which are associated with validly enacted zoning laws. In fact, rights of the public and the reasons for zoning do not terminate at the shoreline . . . .

   . . . This property right, in form similar to an easement, is exercised on the land of another -- the servient estate being owned by the State in this case. . . . Whether the land held by the State but used by someone else may be subject to zoning is a question which has not been addressed . . . . It is apparent [, however,] that . . . [state law] not only granted riparian owners the right to use the land belonging to the State in erecting improvements, but vests such a substantial property interest in these improvements in[***37] the upland owner that the privileges . . . are tantamount to complete ownership. 
 
Harbor Island Marina, 286 Md. at 319-20, 407 A.2d at 747 (footnote omitted) (citation omitted). Thus, we concluded:
 
Any limitation upon the county's ability to zone which arises because the land in question belongs to the State does not apply to improvements attached to riparian land. . . . In the final analysis, we hold that Calvert County has the [*141] authority to reasonably regulate through zoning the exercise of the riparian right to wharf out . . . .
 
Harbor Island Marina, 286 Md. at 322-23, 407 A.2d at 748-49 (footnote omitted).

   In Western Maryland Tidewater Railroad, 106 Md. at 571, 68 A. at 9-10, this Court held that the private act of constructing piers or docks, as well as more solid structures like wharves, over a navigable waterway extended the jurisdiction of Baltimore City such that it could tax that property and provide police and fire protection. We noted this holding in Treuth v. State, 120 Md. 257, 264, 87 A. 663, 666 (1913), when we overturned a conviction for selling liquor without a license in Baltimore City. The defendant in that case had a Baltimore County liquor license, but not one issued by Baltimore[***38] City. He sold liquor from a pavilion built on the half of the Patapsco River then within Baltimore County, [**229] but which was connected to Baltimore City's shoreline by a movable raft and boat system. We noted that Baltimore County retained jurisdiction under the Act of 1816 and Raab, 7 Md. 483, but distinguished Western Maryland Tidewater Railroad, 106 Md. 561, 68 A. 6, because the connection between the pavilion and shoreline was not a permanent structure. Treuth, 120 Md. at 261-64, 87 A. at 665. In other words, Baltimore County had licensing jurisdiction over the pavilion because, without a permanent link to the Baltimore City shore, the pavilion was located solely within Baltimore County's waters.

   There are other examples of county regulatory jurisdiction over navigable waters in our statutes. Article 25 of the Maryland Code (1957, 1998 Repl. Vol.), contains a number of powers given to counties to regulate in or affecting navigable waters. Section 169(a) gives counties jurisdiction, power, and authority to establish public watershed associations in their respective counties or Baltimore City for the purpose of constructing, operating, maintaining, and carrying out works[***39] of improvement for watershed protection, flood prevention, recreation, soil conservation, drainage, and/or the conservation, development, storage, utilization, and disposal of water for all beneficial purposes in [*142] watershed or subwatershed areas, and the protection of areas subject to sediment or erosion damages . . . .
 
Once created by the county, those watershed associations have power and authority to acquire and hold water rights under existing law of this State and to plan and carry out works of improvement for storage, utilization, and distribution of water [and may] make charges for the use of such water, the proceeds of such sale to be used as payment for water rights or for the construction, maintenance, repair, improvement, and operation of the works of improvement.
 
Art. 25, § 211. Article 25, section 234A gives Calvert, Charles and St. Mary's Counties the power to regulate floating homes operating within county waters. Finally, section 156 states that counties "shall have power to establish a public landing upon any navigable river, canal, bay, sound or other navigable waters."

   Further examples are found elsewhere in the Code. For instance, Maryland Code (1974, [***40] 1990 Repl. Vol., 1998 Cum. Supp.), sections 8-705 to 8-709 of the Natural Resources Article, governs the Waterway Improvement Fund under the State Boat Act. Those provisions provide money to the counties, municipal corporations, and the State, to maintain channels and harbors, construct and maintain marine facilities, improve bridges, and construct marine emergency services facilities. Id. §§ 8-707 to 8-708. Maryland Code (1974, 1993 Repl. Vol., 1998 Cum. Supp.), section 6-308 of the Transportation Article permits counties to tax docks, piers and wharves operated within their boundaries by the Maryland Port Authority.

   In essence, Anne Arundel County has jurisdiction over all waterways within its boundaries, except that it may not attempt to regulate the State's use of the waters in the exercise of that jurisdiction and may not regulate any area preempted by state or federal law. As a result, no enclave has been created by the proposed annexation under the plain meaning of section 19(a)(2), or under any reasonable construction of the statute. In other words, the Bywater Peninsula is [*143] not surrounded by the City of Annapolis, but on three sides by the rest of Anne Arundel County, [***41] albeit by waterways.

   2. Contiguous Lands Divided by Waterways
 
We finally note one case involving Baltimore City n10 and several municipal annexation [**230] cases from other jurisdictions for an inverse proposition: if a municipal corporation can annex property across a body of water and satisfy the "contiguousness" requirement, then portions of remaining county fast land separated after a municipal annexation by a body of water are contiguous to one another.

n10 See McGraw, 133 Md. 247, 104 A. 540. Although Baltimore City is a municipality, it has been afforded status similar to that of a County. We acknowledged in Pressman v. D'Alesandro, 211 Md. 50, 57, 125 A.2d 35, 38 (1956), a case involving a disputed pay increase for Baltimore City officials, that:

   It is important to keep in mind that the City of Baltimore is recognized by the Constitution of 1867, as it was also by the Constitutions of 1851 and 1864, as a separate political entity similar in character to the several counties, and that it is liable like the counties to the control of the Legislature, except in so far as may be forbidden by the Constitution.
 
See also Mayor of Baltimore v. Gorter, 93 Md. 1, 6, 48 A. 445, 446 (1901) (quoting Mayor of Baltimore v. State ex rel. Bd. of Police, 15 Md. 376, 491 (1860) ("Under the Constitution of Maryland the City of Baltimore is recognized as a public corporation . . . and . . . it is in nowise distinguished from that of the several counties . . . .")). Article XI of the Maryland Constitution ("City of Baltimore"), which provides for the governance of Baltimore City and its limitations, treats the City separately from the other municipal corporations addressed in article XI-E of the Maryland Constitution ("Municipal Corporations"). In any event, only municipal corporations are empowered to annex by Article 22, section 19 of the Maryland Code. The general municipal annexation statutes do not apply to Baltimore City as it is, in relation to the issue before us and with respect to boundaries, treated as a county. The change in the boundaries of Baltimore City generally have resulted from specific acts of the General Assembly and the change in boundaries that took place in McGraw was specially authorized by a State statute, passed for that express purpose. Accordingly, McGraw is directly relevant when discussing county boundary issues because Baltimore City generally is conferred county status.

[***42]

   There are no Maryland cases with respect to the exact issue of whether an area completely within a county's borders but [*144] entirely divided by a waterway are contiguous. There are, however, cases that involve the limitation in annexation cases that municipal corporations can annex only contiguous properties, as well as the McGraw case, supra. In the case sub judice, appellants appear to argue that because Annapolis's annexation leaves the remaining unannexed County area on the peninsula separated from the rest of the County's fast land area by water, that area is no longer contiguous to the rest of Anne Arundel County. Because of the importance of this issue to the annexation argument before us, and the extent of waterways in this State, we shall discuss briefly the municipal annexation cases and their applicability to the case before us.

   Municipalities are required to annex contiguous areas, yet no Maryland case ever has held specifically that a municipality cannot annex across a navigable body of water. In McGraw, 133 Md. at 258-59, 104 A. at 544-45, with respect to a state statute that extended the boundaries of Baltimore City to include portions of Baltimore and[***43] Anne Arundel Counties, we indirectly addressed this issue when we upheld the Act that, in effect, annexed the Patapsco River to Baltimore City. This Court was persuaded that although no statutory requirement existed in Maryland at that time that annexed land must be contiguous to the city annexing it, n11 the Act was valid because the territory annexed under the Act, which included the Patapsco River, was in fact contiguous to Baltimore City.  McGraw, 133 Md. at 259-60, 104 A. at 545. The Court reasoned:

n11 McGraw, 133 Md. at 259, 104 A. at 544 ("There is no statute or constitutional provision in this State, limiting an extension of the boundaries of a city to contiguous territory, . . . although it may be conceded that some part of the newly acquired territory should be contiguous.").

 
In the Act there are well defined lines which include additional territory on each side of and immediately adjoining the former boundaries of the City--the most of which was in Baltimore County and the rest in Anne Arundel County, [***44]which adjoins Baltimore County--and the whole, [*145] together with the territory included in the city prior to the passage of this Act, constitute one body.
 
Id. at 260, 104 A. at 545.

   Other states that have addressed this issue have concluded that municipal corporations may extend their boundaries across a waterway even if the annexed land would be separated completely from the original city or town limits by that body of water. Johnson v. Rice, 551 So. 2d 940, 945 (Ala. 1989); Garner v. Benson, 224 Ark. 215, 222, 272 S.W.2d 442, 445 (1954); Vogel v. City of Little Rock, 54 Ark. 335, 336, 15 S.W. 836, 836-37 (1891); Vestal v. City of Little Rock, 54 Ark. 321, 325, 15 S.W. 891, 892 (1891); People v. City of Burley, 86 Idaho 519, 520, 388 P.2d 996, [**231] 998-99 (Idaho 1964); State ex rel. Taylor v. North Kansas City, 360 Mo. 374, 397, 228 S.W.2d 762, 773 (1950); Blanchard v. Bissell, 11 Ohio St. 96, 99 (1860); Bryant v. City of Charleston, 295 S.C. 408, 411, 368 S.E.2d 899, 901 (S.C. 1988); Tovey v. City of Charleston, 237 S.C. 475, 485, 117 S.E.2d 872, 876 (S.C. 1961); Pinckney v. City of Beaufort, 296 S.C. 142, 147, 370 S.E.2d 909, 912 (S.C. Ct. [***45] App. 1988); Point Pleasant Bridge Co. v. Town of Point Pleasant, 32 W. Va. 328, 334, 9 S.E. 231 (1889).

   Returning to the case sub judice, these principles discussed above and common sense persuade us that the Bywater Peninsula remains contiguous to the remainder of Anne Arundel County notwithstanding that it is separated from other County fast land by water on three sides. As we have said, Anne Arundel County includes all of the waterways that surround the remainder of the Bywater Peninsula; these creeks and river do not destroy the contiguity of the County.

   III. Conclusion

   We hold that the plain language of section 19(a)(2) and the Legislature's intent in enacting the statute prevents only an annexation by a municipality that would create an enclave of unincorporated land entirely surrounded by that municipality's borders. The statute does not prohibit annexation when areas left unincorporated would be separated from other unincorporated areas by natural features, i.e., physical [*146] geography alone. Separation of fast land areas by a body of water does not alter the County's jurisdiction over all the lands, including the waterways, in question. Those segments of fast[***46] land and navigable water remain contiguous. For these reasons, the annexation of the Chrisland property by Annapolis did not violate section 19(a)(2). We shall therefore affirm the trial court.

   JUDGMENT AFFIRMED; COSTS TO BE PAID BY APPELLANTS. 

DIANA H. JOSEPHSON et al. v. CITY OF ANNAPOLIS et al. 
No. 48, September Term, 1998
 
COURT OF APPEALS OF MARYLAND
 
353 Md. 667; 728 A.2d 690; 1998 Md. LEXIS 948

 December  10, 1998, Filed

   PRIOR HISTORY: [***1] Appeal from the Circuit Court for  Anne Arundel  County pursuant to certiorari to the Court of Special Appeals. Case # C-9739198 OC. Eugene M. Lerner, JUDGE.

DISPOSITION: JUDGMENTS OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY VACATED; CASE REMANDED TO THAT COURT WITH DIRECTIONS TO DISMISS; COSTS TO BE PAID BY APPELLANTS. 
CASE SUMMARY 

PROCEDURAL POSTURE:  Appellants challenged a judgment of the Circuit Court for Anne Arundel County (Maryland), which granted summary judgment in favor of appellees, city and owner. Appellants brought an action for declaratory judgment, mandamus, and injunctive relief, which arose out of the rezoning of property previously annexed by appellee city.

OVERVIEW:  Instead of appealing a rezoning decision in accordance with the requirements of Annapolis, Md., Code § 21.88.020, and thereafter seeking judicial review in the circuit court as required by Md. Ann. Code art. 66B, § 4.08(a) (1957, 1998 Repl. Vol.), appellants sought direct relief several months later by filing an action for mandamus, declaratory judgment, and injunctive relief. The circuit court granted summary judgment in favor of appellees, city and owner. The court found that just as appellants never filed an appeal to the zoning board of appeals, that appellants never filed a petition for judicial review. Accordingly, the court found that the trial court should have dismissed the case because appellants turned to the courts seeking other remedies before exhausting their administrative remedies. The court concluded that the general rule applied in the case, which required appellants to exhaust administrative remedies in zoning cases before bringing their requests for declaratory judgment, mandamus, and injunctive relief.

OUTCOME:  The court vacated the circuit court's order and remanded with directions to dismiss appellants' action challenging the rezoning of appellee owner's property. The court held that appellants were required to exhaust their administrative remedies prior to filing their complaint in the circuit court.

 CORE TERMS:  annexation, administrative remedies, zoning, administrative remedy, rezoning, annexed, ordinance, declaratory judgment, judicial review, exhausted, mandamus, summary judgment, failure to exhaust, judicial remedy, combined, zoning classification, classification, mandatory, administrative agency, injunctive relief, declaratory, exhausting, aggrieved, invoking, invoked, Maryland Rules, directions to dismiss, statutory remedy, zoning district, matter of law

CORE CONCEPTS -  

Real Property Law: Zoning & Land Use: Zoning Laws
Annapolis, Md., Code § 21.88.020, Board of appeals. A. Establishment. The board of appeals, as provided for in Chapter 2.48 of this code, is the board of appeals referred to in this title. The board of appeals is also the board of appeals referred to in Md. Ann. Code art. 66B, § 4.07 (1957). B. Jurisdiction. The board of appeals is vested with the following jurisdiction and authority under this title: 1. To hear and decide appeals where it is alleged there is error in any order, requirement, decision or determination made by an administrative official or body in the enforcement of this title or any ordinance adopted pursuant to this title; 3. To hear and decide all matters referred to it or upon which it is required to pass under this title, and as prescribed by Md. Ann. Code art. 66B, § 4.07 (1957); 4. To execute all of the powers conferred to boards of appeals under Article 66B of the Annotated Code of Maryland, 1957 edition, as amended from time to time.

Real Property Law: Zoning & Land Use: Judicial Review
See Md. Ann. Code art. 66B, § 4.08(a) (1957, 1998 Repl. Vol.).

Administrative Law: Judicial Review: Reviewability: Exhaustion
Administrative Law: Judicial Review: Reviewability: Jurisdiction & Venue
Administrative Law: Judicial Review: Reviewability: Preclusion
Whenever the legislature provides an administrative and judicial review remedy for a particular matter or matters, the relationship between that administrative remedy and a possible alternative judicial remedy will ordinarily fall into one of three categories. First, the administrative remedy may be exclusive, thus precluding any resort to an alternative remedy. Second, the administrative remedy may be primary but not exclusive. In this situation, a claimant must invoke and exhaust the administrative remedy, and seek judicial review of an adverse administrative decision, before a court can properly adjudicate the merits of the alternative judicial remedy. Third, the administrative remedy and the alternative judicial remedy may be fully concurrent, with neither remedy being primary, and plaintiff at his or her option may pursue the judicial remedy without the necessity of invoking and exhausting the administrative remedy.

Administrative Law: Judicial Review: Reviewability: Exhaustion
Where a legislature has provided an administrative remedy for a particular matter, even without specifying that the administrative remedy is primary or exclusive, the court has ordinarily construed the pertinent legislative enactments to require that the administrative remedy be first invoked and followed before resort to the courts. When the legislative body expressly states that the administrative remedy is primary or exclusive or must be exhausted, the mandatory nature of the exhaustion requirement is underscored. Such express language is totally inconsistent with the notion that the administrative agency's jurisdiction over the matter can be circumvented.
 
Real Property Law: Zoning & Land Use: Judicial Review
Real Property Law: Zoning & Land Use: Zoning Laws
Md. Ann. Code art. 66B, § 4.08(a) (1957, 1998 Repl. Vol.) provides that an appeal from a zoning action by the local legislative body, to the circuit court of the county shall be taken in accordance with Title 7, Chapter 200 of the Maryland Rules. Md. R. App. & Other Jud. Rev. in Cir. Ct. 7-203(a) provides that a Petition for Judicial Review to the circuit court from the actions of an administrative agency must be taken within 30 days after the date of the action that forms the basis of the petition.

Real Property Law: Zoning & Land Use: Judicial Review
Real Property Law: Zoning & Land Use: Zoning Laws
When administrative remedies exist in zoning cases, they must be exhausted before other actions, including requests for declaratory judgments, mandamus, and injunctive relief, may be brought.

COUNSEL: ARGUED BY Thomas A. Deming of Baltimore, MD, FOR APPELLANTS.
 
ARGUED BY Jonathan A. Hodgson (Hyatt, Peters & Weber, P.A.). ARGUED BY Paul G. Goetzke, City Attorney, of Annapolis, MD, FOR APPELLEES.

JUDGES: ARGUED BEFORE Bell, C.J.; Eldridge, Rodowsky, Chasanow, Raker, Wilner, and Cathell, JJ. Opinion by Cathell, J.

OPINIONBY: CATHELL

OPINION: [*668] [**690]

   Opinion by Cathell, J.

   Filed: December 10, 1998
 
Plaintiffs below, Diana H. Josephson, Barbara D. Samorajczyk, Bywater Church & Crab Creek Association, Inc., and the Annapolis Neck Peninsula Federation, Inc., appellants and cross-appellees (hereinafter appellants), appeal from the decision of the Circuit Court for Anne Arundel County denying their Motions for Summary Judgment and granting the Motions for Summary Judgment of the defendants below, the City of Annapolis (Annapolis), Farmer's National Land Corporation (Farmers), and the Chrisland Corporation (Chrisland), appellees and cross-appellants (hereinafter appellees). The complaint originated as a "Complaint For Declaratory Judgment, Mandamus and Other Relief." The action, however, arose out of the rezoning of property previously annexed by Annapolis. That annexation also is being challenged and is[***2] before this Court in a separate proceeding. See generally Anne Arundel County v. City of Annapolis, 352 Md. 117, 721 A.2d 217 (1998).

   On appeal, appellants raise the following issues:

   I. Did Appellee, the City of Annapolis, violate the prohibition of Article 23A, Section 9(c)(1), in assigning zoning classification R1B to the subject, annexed property?
 
   II. Was Appellee, the City of Annapolis, required as a matter of law to amend its Comprehensive Plan in accordance with Article 66B, Section 3.01 et seq., as amended by the Economic Growth, Resource Protection, and Planning Act of 1992 (Chapter 437, Laws of Maryland, 1992), before assigning any zoning classification to the subject, annexed property?

   In their cross-appeal, appellees allege that the trial court erred in finding the exhaustion of administrative remedies doctrine did not apply. Appellees Farmers and Chrisland, in [*669] their Motion to Dismiss or, in the Alternative for Summary Judgment, asserted below:

   1) The Plaintiffs have failed to exhaust their administrative remedies by failing to pursue the administrative appeal procedures established and mandated by statute. [***3]

   [**691] 2) Declaratory Judgment is not available where, as in the case at bar, a statute provides a special form of remedy for a specific type of case. In such cases, that statutory remedy shall be followed in lieu of a proceeding under the declaratory judgment statute. (Court Art., Sec. 3-409 (b)).

   3) Mandamus is not available as a remedy where specific remedies have been provided by statute.
 
Appellee Annapolis presented and argued in its Amended Motion to Dismiss or, in the Alternative, for Summary Judgment below that "Plaintiffs failed to pursue mandatory administrative remedies; therefore, the Complaint fails to state a claim upon which declaratory relief may be granted or upon which a writ of mandamus may be issued." The trial court denied appellees' requested relief in reliance on Northeast Plaza Associates v. President and Commissioners of North East, 310 Md. 20, 526 A.2d 963 (1987).

   Because we hold that appellants were required to exhaust their administrative remedies prior to filing their Complaint in the circuit court, we shall vacate the trial court's order and remand with directions to dismiss this action for appellants' failure to exhaust all administrative remedies. [***4] Accordingly, we need not address the substantive issues raised by appellants.
 
I. FACTS AND PROCEDURAL HISTORY

   The property in question in this appeal is a 103.647 acre tract of land owned by Farmers and under contract to be sold to Chrisland. This parcel of land (Chrisland property), located in Anne Arundel County, straddles Bywater Road south of Forest Drive, and extends from the headwater area of Church Creek on the west to the headwater area of Crab Creek on the east. Annapolis annexed the Chrisland property by Resolution No. R-21-96 Revised/Amended, adopted on November 4, [*670] 1996, which became effective on December 19, 1996. As initially proposed, the resolution contained provisions to annex and rezone the Chrisland property, but the rezoning provisions were deleted prior to passage. Accordingly, as adopted, the annexation ordinance contained no order to rezone the property.

   Almost six months later on May 12, 1997, the City of Annapolis, in a separate proceeding and by separate legislation, Ordinance No. O-28-97, rezoned the Chrisland property to a R1B Single Family Residence District zoning classification pursuant to the Annapolis City Code, section 21.08.060. n1 It [***5]is this particular May 12th rezoning that is at issue in the case sub judice. 

n1 Section 21.08.060 of the Annapolis City Code provides:
 
21.08.060 Zoning of annexed land.

   On land annexed to or consolidated with the city after August 10, 1970, no building or structure shall be erected, enlarged or moved and no change in the use of land or existing buildings or structures shall be made until an ordinance designating the zoning district classification of the annexed land is adopted by the city council. If in acting favorably on the annexation petition, the city council does not designate the zoning district classification, then within forty days of the annexation, the planning commission shall file an application for an amendment to establish the zoning district classification of the land. However, if no action is taken regarding the classification of annexed land within ninety days of the date of annexation, the land shall require the R1 district classification and shall remain in that zone until properly reclassified.

[***6]

   Instead of appealing the rezoning decision in accordance with the requirements of section 21.88.020 of the Annapolis City Code, n2 [**692] and thereafter seeking judicial review in the circuit court as required by section 4.08(a) of Article 66B of [*671] the Maryland Code (1957, 1998 Repl. Vol.), n3 appellants sought direct relief several months later by filing an action for mandamus, declaratory judgment and injunctive relief. Ultimately, all parties filed motions for summary judgment alleging that no disputed facts existed and that the case should be resolved as a matter of law. In addition to other points, appellees argued, as indicated above, that the matter should be dismissed for appellants' failure to exhaust their administrative remedies.

n2 This provision provides in relevant part:
 
21.88.020 Board of appeals.

   A. Establishment. The board of appeals, as provided for in Chapter 2.48 of this code, is the board of appeals referred to in this title. The board of appeals is also the board of appeals referred to in Section 4.07 of Article 66B of the Annotated Code of Maryland.

   B. Jurisdiction. The board of appeals is vested with the following jurisdiction and authority under this title:

   1. To hear and decide appeals where it is alleged there is error in any order, requirement, decision or determination made by an administrative official or body in the enforcement of this title or any ordinance adopted pursuant to this title;

   . . . .

   3. To hear and decide all matters referred to it or upon which it is required to pass under this title, and as prescribed by Section 4.07 of Article 66B of the Annotated Code of Maryland;

   4. To execute all of the powers conferred to boards of appeals under Article 66B of the Annotated Code of Maryland, 1957 edition, as amended from time to time . . . .

[***7] 

n3 Section 4.08(a) provides:

   (a) Who may appeal; procedure. -- Any person or persons, jointly or severally, aggrieved by any decision of the board of appeals, or by a zoning action by the local legislative body, or any taxpayer, or any officer, department, board, bureau of the jurisdiction, may appeal the same to the circuit court of the county. Such appeal shall be taken in accordance with Title 7, Chapter 200 of the Maryland Rules. Nothing in this subsection shall change the existing standards for review of any zoning action.

   During the hearing below, the first issue concerned whether the two cases, the challenge to the annexation to which we referred earlier and the rezoning challenge, should be heard together. With respect to that issue the following exchanges occurred:

   THE COURT: Call the cases, Diana H. Josephson, and others, versus the City of Annapolis, and others, Case No. C-97-391980C[ n4 ] and Anne Arundel County, Maryland versus the City of Annapolis, Farmers National Land Corporation, The Chrisland Corporation, C-97-363030C. [ n5 ]

n4 Case No. C-97-391980C is the case sub judice.

[***8] 

n5 Case No. C-97-363030C is an annexation case involving the same property also being considered by this Court. See generally Anne Arundel County, 352 Md. 117, 721 A.2d 217 (1998).

[*672]

   . . . .
  
[APPELLANT'S COUNSEL]: Your Honor, do we have to handle the cases simultaneously or one after the other?

   THE COURT: I would think so, or do you want to do them separate? It doesn't matter to me.

   . . . .

   THE COURT: Don't we have the same issue all the way around . . . ?

   [APPELLANT'S COUNSEL]: No, Your Honor. The issue is quite distinct on the merits.

   . . . .

   [APPELLANT'S COUNSEL]: I would suggest that the enclave case, [the annexation case,] the County's case, go first.

   The trial court then proceeded to hold the hearing on the annexation case. After that hearing concluded, the following occurred:

   THE COURT: . . . All right, now we are ready to go on the other case. This is Josephson and others versus the City, . . . right?

   . . . .

   [CITY ATTORNEY]: . . . If I might at this time raise an objection to the presence at counsel table [of] [***9] the County attorney. The County is not a party in this action.[ n6 ]

n6 The trial court permitted the County attorney to remain.

   . . . .

   This is the zoning case, Your Honor. These are also cross Motions for Summary Judgment. We all seem to agree on the facts, we just differ a little bit on the law.
 
. . . . [*673]

   This was a proceeding completely separate and distinct and actually several months . . . apart from the act of annexation. . . .

   So, for all intents and purposes, this was land located within the city that was zoned according to our . . . City Code Article 21, zoning powers as conferred upon the city by the Annotated Code of Maryland, Article 66[B], Title 4.
 
   . . . .

   [Ordinance] 02897 was adopted and became final on May 12, 1997.

   [**693] . . . These proceedings [, the annexation proceedings and the zoning proceedings,] are bifurcated. They are very much separate. It will reflect an impact upon the critical issue and that is the failure of the Plaintiffs to pursue mandatory administrative remedies[***10] under 66[B]. . . .

   . . . .

   [Section 4.08] specifically provides that if you are aggrieved of a zoning decision of a municipal legislative body, you must file your appeal under the administrative procedures of the Maryland Rules, Chapter 7, Title 2, the old "B" rules. If you want to appeal a zoning of a parcel of land [(piece-meal zoning)], if it is a legislative act of a local legislature, that is your remedy. They filed mandamus and declaratory action here, but it is our position that they had to go under the old "B" rules.

   . . . All four Plaintiffs appeared at those zoning hearings.

   . . . .

   What did they do? One thing they did not do was pursue an administrative appeal. The 30 day deadline came and went, and many months later they filed an action for mandamus and declaratory relief. It is our position that they have failed to pursue mandatory administrative remedies, therefore, the case must be dismissed.
 
Now, I anticipate that the Plaintiffs will argue the case of Northeast to you. In that case, what was before the court, was one of these combined annexation and zoning ordinances [*674] . . . [and the Court] found that, well when you combine the two . . . we will[***11] allow them to bring a declaratory action.

   Very different in Annapolis. We bifurcated the two processes, this land was in the City of Annapolis for six months . . . before this property was ever zoned R-1-B. So it is purely a 66[B] exercise of authority.

   In response, appellants made a brief reference to a memorandum they had filed in the case, which apparently relied on Northeast Plaza Associates, 310 Md. 20, 526 A.2d 963, and then relied almost exclusively upon provisions relating to combined annexation/rezoning resolutions or ordinances. The trial court, although ultimately ruling in favor of appellees on the merits, found against them on the failure to exhaust administrative remedies argument, relying on Northeast Plaza. In doing so, the trial court extended the exception created in Northeast Plaza beyond its limited scope and erred as a matter of law. We shall vacate the judgment of the circuit court and direct it on remand to dismiss this case for appellants' failure to exhaust their administrative remedies.

   II. DISCUSSION AND ANALYSIS

    A. FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES

   This Court discussed the relationship between administrative and judicial remedies[***12] at great length in Zappone v. Liberty Life Insurance Co., 349 Md. 45, 706 A.2d 1060 (1998). Explaining that the appropriateness of each remedy ordinarily depends upon legislative intent, we stated:
 
Whenever the Legislature provides an administrative and judicial review remedy for a particular matter or matters, the relationship between that administrative remedy and a possible alternative judicial remedy will ordinarily fall into one of three categories.

   First, the administrative remedy may be exclusive, thus precluding any resort to an alternative remedy. Under this [*675] scenario, there simply is no alternative cause of action for matters covered by the statutory administrative remedy.

   Second, the administrative remedy may be primary but not exclusive. In this situation, a claimant must invoke and exhaust the administrative remedy, and seek judicial review of an adverse administrative decision, before a court can properly adjudicate the merits of the alternative judicial remedy. See, e.g., McCullough v. Wittner, 314 Md. 602, 613, 552 A.2d 881, 886 (1989) . . .; Md.-Nat'l Cap. P. & P. Comm'n v. Crawford, 307 Md. 1, 18, 511 A.2d 1079, 1088 (1986). . .; Bd. [***13]  of Ed. for Dorchester Co. v. Hubbard, 305 Md. 774, 792, 506 A.2d 625, 634 (1986).

   [**694] Third, the administrative remedy and the alternative judicial remedy may be fully concurrent, with neither remedy being primary, and the plaintiff at his or her option may pursue the judicial remedy without the necessity of invoking and exhausting the administrative remedy. Md.-Nat'l Cap. P. & P. Comm'n v. Crawford, supra, 307 Md. at 22-31, 511 A.2d at 1090-1094; Bd. of Ed. for Dorchester Co. v. Hubbard, supra, 305 Md. at 791, 506 A.2d at 633; Md.-Nat'l Cap. P. & P. v. Wash. Nat'l Arena, 282 Md. 588, 600, 386 A.2d 1216, 1225 (1978).

   . . . .

   Despite occasional dicta in a few opinions suggesting the contrary, where neither the statutory language nor the legislative history disclose an intent that the administrative remedy is to be exclusive, and where there is an alternative judicial remedy under another statute or under common law or equitable principles, there is no presumption that the administrative remedy was intended to be exclusive. There is in this situation, however, a presumption that the administrative remedy is intended to be primary, and that a claimant cannot maintain [***14]  the alternative judicial action without first invoking and exhausting the administrative remedy. See, e.g., Md. Reclamation v. Harford County, 342 Md. 476 at 493, 677 A.2d 567 at 576 ("this Court has 'ordinarily construed the pertinent [legislative] enactments to require that the administrative remedy be first invoked [*676] and followed' before resort to the Courts"); Luskin's v. Consumer Protection, 338 Md. 188, 194-199, 657 A.2d 788, 791-793 (1995); Clinton v. Board of Education, 315 Md. 666, 678, 556 A.2d 273, 279 (1989) ("Ordinarily, when there are two forums available, one judicial and the other administrative, . . . and no statutory directive indicating which should be pursued first, a party is often first required to run the administrative remedial course before seeking a judicial solution"); Quesenberry v. WSSC, 311 Md. 417, 424, 535 A.2d 481, 484 (1988); Md.-Nat'l Cap. P. & P. Comm'n v. Crawford, supra, 307 Md. at 13, 511 A.2d at 1085; Bd. of Ed. for Dorchester Co. v. Hubbard, supra, 305 Md. at 786, 506 A.2d at 631 ("we have ordinarily construed the pertinent enactments to require that the administrative remedy be first invoked and followed"); [***15] Prince George's Co. v. Blumberg, 288 Md. 275, 283-284, 418 A.2d 1155, 1160 (1980), cert. denied, 449 U.S. 1083, 101 S. Ct. 869, 66 L. Ed. 2d 808 (1981).
 
349 Md. at 60-61, 63-64, 706 A.2d at 1067-68, 1069 (emphasis added) (footnotes omitted) (alteration in original).

   Judge Eldridge, for this Court, visited the doctrine of exhaustion of administrative remedies as it relates to State common law and State constitutional law in Maryland Reclamation Associates, Inc. v. Harford County, 342 Md. 476, 677 A.2d 567 (1996). In that case, we had to determine whether Maryland Reclamation Associates (Maryland Reclamation) was "required to invoke and exhaust administrative remedies available under the Harford County Code and the Express Powers Act, Maryland Code (1957, 1994 Repl. Vol.), Art. 25A, § 5(U) (setting forth the jurisdiction and procedural requirements with respect to boards of appeal in chartered counties)." n7 Id. at 490, 677 A.2d at 574. If Maryland Reclamation [*677] were so required and had not sought to utilize that remedy, i.e., invoking administrative action and then seeking judicial review of the administrative agency action, we stated that "there would be no [***16]occasion for the Court to reach the merits of such issue." Id. This Court concluded that "there clearly were administrative remedies available to Maryland Reclamation, affording . . . the means for obtaining the relief sought if it was entitled to such relief." Id.

n7 Section 5(U) authorizes chartered counties to establish boards of appeals and for such boards to review administrative actions, including "amendment of a zoning ordinance map," i.e., rezoning. The section then provides that any party aggrieved by an action of a board of appeals "may appeal to the circuit court." In charter counties the Express Powers Act performs much the same functions as Article 66B does in non-Charter and non-Home Rule counties and in municipalities.

   As to Maryland Reclamation's state constitutional and statutory claims, we stated: [**695] "Neither the enactments by the General Assembly nor the decisions of this Court dispense with the requirement that administrative remedies be exhausted in actions to enforce rights under[***17] the Maryland Constitution or rights under state statutes." Id. at 493, 677 A.2d at 576. We continued:

   Where a legislature has provided an administrative remedy for a particular matter, even without specifying that the administrative remedy is primary or exclusive, this Court has "ordinarily construed the pertinent [legislative] enactments to require that the administrative remedy be first invoked and followed" before resort to the courts.  Bd. of Ed. for Dorchester Co. v. Hubbard, supra, 305 Md. at 786, 506 A.2d at 631. See, e.g., Board v. Secretary of Personnel, 317 Md. 34, 42-43, 562 A.2d 700, 704 (1989); Clinton v. Board of Education, 315 Md. 666, 678, 556 A.2d 273, 279 (1989); Muhl v. Magan, 313 Md. 462 at 480-481, 545 A.2d 1321 at 1330-1331; Quesenberry v. WSSC, 311 Md. 417, 424, 535 A.2d 481, 484 (1988); Comm'n on Human Rel. v. Mass Transit, 294 Md. 225 at 230-232, 449 A.2d 385 at 387-388, and cases there cited. When the legislative body expressly states that the administrative remedy is primary or exclusive or must be exhausted, the mandatory nature of the exhaustion requirement is underscored. Such express language "is totally inconsistent[***18] with the notion that the [administrative agency's] jurisdiction over [the matter] can be [*678] circumvented," McCullough v. Wittner, 314 Md. 602, 609, 552 A.2d 881, 884 (1989).
 
Id. (alterations in original). n8 What we stated in Maryland Reclamation applies equally to appellants' attempts in the case at bar to bypass the necessary administrative review process. B. NORTHEAST PLAZA

n8 We also noted that in the past this Court has "recognized a limited 'constitutional' exception to the rule requiring exhaustion of administrative remedies." Judicial review prior to an administrative challenge is possible when "the constitutionality of a statute on its face is challenged," id. at 494, 677 A.2d at 576, but not when the statutorily prescribed administrative review remedy is exclusive. Holiday Point Marina Partners v. Anne Arundel County, 349 Md. 190, 201-02, 707 A.2d 829, 835 (1998). "Issues concerning the validity of ordinances as applied to particular property must be raised and initially decided in the administrative proceeding." Maryland Reclamation Assocs., 342 Md. at 495, 677 A.2d at 577. Appellants in this case do not challenge the constitutionality of the ordinances.

[***19]

   As we have stated, supra, the trial court relied exclusively on this Court's decision in Northeast Plaza to decide that appellants were not required to exhaust their administrative remedies prior to filing suit for declaratory and mandamus relief in the circuit court. In Northeast Plaza Associates, 310 Md. at 27-28, 526 A.2d at 967, the Commercial Center Development Corporation requested the Commissioners of the Town of North East to annex an area of unimproved land and simultaneously rezone it from light industrial to commercial and multifamily residential. The Town Commissioners ultimately approved the annexation and rezoning. Northeast Plaza Associates, which owned land adjacent to the annexed parcel, filed an action for declaratory judgment challenging the validity of the annexation and rezoning.

   In an order declaring the rights of the parties, the trial court in Northeast Plaza viewed the annexation and the rezoning as two distinct processes. Among other issues determined, the trial court found defects in the annexation process and ruled that the Northeast Plaza Associates "could not [*679] challenge the rezoning in a declaratory judgment action, but should have exhausted [***20]administrative remedies." Id. at 24, 526 A.2d at 965.
 
   As is relevant to the case before us, we first noted in Northeast Plaza that we had to determine "what procedure may be used to challenge combined annexation and zoning enactments."  Id. at 27, 526 A.2d at 967. We stated:

   The Declaratory Judgment Act provides that
 
"any person . . . whose rights, status, or other legal relations are affected by a statute . . . may have determined any question of construction or validity arising under the . . . statute . . . and . . . [**696] obtain a declaration of rights, status, or other legal relations under it."
 
Code (1973, 1984 Repl. Vol.), § 3-406 of the Courts and Judicial Proceedings Article. If, however, "a statute provides a special form of remedy for a specific type of case, that statutory remedy shall be followed in lieu of a [declaratory judgment] proceeding. . . ." § 3-409(b) of the Courts Article. Thus, we must determine whether Associates had a statutory remedy in this case.

   Art. 23A, § 9(c) provides no statutory appeal process. Furthermore, in Md.-Nat'l Cap. P. & P. v. Rockville, 269 Md. 240, 246-47, 305 A.2d 122 (1973) (Rockville I), we determined that[***21] the inclusion of the proposed zoning classification in an annexation resolution did not transform the issue into a zoning case. Thus, a declaratory judgment action was the proper way to challenge Rockville's action. As the present case is in the identical posture, we hold that a property owner with standing can challenge the validity of the annexation/zoning resolution in a declaratory judgment proceeding.
 
310 Md. at 27-28, 526 A.2d at 967 (emphasis added) (footnote omitted) (alteration in original). Accordingly, because the action from which Northeast Plaza appealed was not a standard zoning issue but a unique combination of annexation and zoning in one statute, we held that Northeast Plaza need not [*680]have exhausted its administrative remedies before proceeding with an action for a declaratory judgment. Id.

   Section 21.08.060 of the Annapolis City Code provides the method for establishing zoning designations of newly annexed land within the city when the zoning designation is not created during the annexation process. That is what occurred in the instant case -- property was annexed by Annapolis, then, some period of time thereafter, was proposed to be rezoned. Section[***22] 21.88.020 of the Annapolis City Code provides that the Board of Appeals is authorized to hear appeals when an error in the adoption of an ordinance passed pursuant to the provisions of Article 21 is alleged. See  § 21.88.020B.1. Appellants alleged an error in the adoption of Ordinance 0-28-97, enacted on May 12, 1997, which strictly addressed the Chrisland property rezoning. No appeal as to this alleged error, however, was taken to the Board of Appeals.

   As we have noted, Article 66B, section 4.08(a) of the Maryland Code provides that an appeal from "a zoning action by the local legislative body, . . . to the circuit court of the county . . . shall be taken in accordance with Title 7, Chapter 200 of the Maryland Rules." Rule 7-203(a) provides that a Petition for Judicial Review to the circuit court from the actions of an administrative agency must be taken within thirty days after the date of the action that forms the basis of the petition. Just as they never filed an appeal to the zoning board of appeals, appellants never filed a petition for judicial review. Accordingly, unless an exception to the general rule that administrative remedies must first be exhausted before resorting[***23] to the courts applies, the trial court should have dismissed this case because appellants turned to the courts seeking other remedies before exhausting their administrative remedies.

   Northeast Plaza was a limited case because, to the extent an exception to the requirement that administrative remedies must first be exhausted before resorting to the courts was recognized in that case, it applied only to simultaneous, combined annexation/rezoning resolutions or procedures. Northeast Plaza went no further. The annexation and the zoning [*681] classification here at issue were addressed separately by Annapolis several months apart, and accomplished by separate statutes. Appellants admitted in the trial court below that the annexation and rezoning issues were "quite distinct on the merits" and the cases were heard and decided by the trial court separately, even if seriatim.
 
Thus, the general rule, which applies in this case, remains that when administrative remedies exist in zoning cases, they must be exhausted before other actions, including requests for declaratory judgments, mandamus and injunctive relief, may be brought. Appellants failed to exhaust their administrative remedies[***24] and the case must be dismissed. We shall vacate the judgment of the trial [**697] court and remand the case with directions to dismiss the case.

   JUDGMENTS OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY VACATED; CASE REMANDED TO THAT COURT WITH DIRECTIONS TO DISMISS; COSTS TO BE PAID BY APPELLANTS. 

Soul v. McIntyres Auto 
Pet. Docket No. 227, September Term, 1998
 
COURT OF APPEALS OF MARYLAND
 
351 Md. 663; 719 A.2d 1262; 1998 Md. LEXIS 925

 November  13, 1998, Decided

NOTICE: 

 [**1]  DECISION WITHOUT PUBLISHED OPINION 

PRIOR HISTORY: (No. C-97-39148DN, Circuit Court for  Anne Arundel  County).

OPINION: [*1262]

   Petition for Writ of Certiorari denied. 

Knief v. Silva 
Pet. Docket No. 223
 
COURT OF APPEALS OF MARYLAND
 
351 Md. 661; 1998 Md. LEXIS 1086

 October  22, 1998, Decided

   PRIOR HISTORY: [*1]

   (No. C-97-4197CO, Circuit Court for  Anne Arundel  County).

OPINION: PETITION FOR WRIT OF CERTIORARI DISMISSED. 

Vilen v. Anne Arundel 
Pet. Docket No. 321, September Term, 1998
 
COURT OF APPEALS OF MARYLAND
 
351 Md. 287; 718 A.2d 235; 1998 Md. LEXIS 866

 October  9, 1998, Decided

NOTICE: 

 [*1]  DECISION WITHOUT PUBLISHED OPINION 

PRIOR HISTORY: (No. C-97-36986, Circuit Court for  Anne Arundel  County).

OPINION: Petition for Writ of Certiorari denied. 

E.I. du PONT de NEMOURS & CO. v. FORMA-PACK, INC. 
No. 99, September Term, 1997
 
COURT OF APPEALS OF MARYLAND
 
351 Md. 396; 718 A.2d 1129; 1998 Md. LEXIS 813

 October  8, 1998, Filed

   PRIOR HISTORY:  [***1]

   Appeal from the Circuit Court for  Anne Arundel  County pursuant to certiorari to the Court of Special Appeals. Michael E. Loney, JUDGE.

DISPOSITION: JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT.

CORE TERMS:  attorney-client, discovery, collection, work product doctrine, legal department, anticipation of litigation, hired, privileged, collection agent, legal advice, collection agency, disclosure, legal services, work product, in camera, work-product, course of business, confidential, inspection, advice, confidentiality, preparation, deposition, control group, business purpose, protective order, collect a debt, failed to meet, discoverable, rendition

COUNSEL: ARGUED BY Charles S. Hirsch, Ballard Spahr Andrews & Ingersoll (on brief) of Baltimore, MD., FOR APPELLANT.
 
ARGUED BY John E. McCann, Jr., (Mark D. Gately, Miles & Stockbridge, on brief) of Baltimore, MD., FOR APPELLEE.

JUDGES: ARGUED BEFORE Bell, C. J.; Eldridge, Rodowsky, Chasanow, Raker, Wilner, and Cathell, JJ. Opinion by Chasanow, J. Dissenting opinion by Raker, J., in which Eldredge, J. and Wilner, J., join.

OPINIONBY: CHASANOW

OPINION: [**1131] [*401]
 
Opinion by Chasanow, J.
 
The issue in this case is whether the work product doctrine and/or the attorney-client privilege protects from discovery documents that were transmitted between a creditor corporation's in-house legal department and an outside debt collection agency. To be protected, such documents must have been produced in anticipation of litigation or in rendition of legal services. The Circuit Court for Anne Arundel County rejected both claims of privilege in this case, finding that E. I. du Pont de Nemours & Co. (DuPont) failed to meet its burden of proof as to the existence of any privilege. We affirm the judgment of the trial court denying DuPont's motion for a protective order and hold that neither the work product doctrine nor the attorney-client privilege protects the documents in question from discovery by Forma-Pack, Inc. (Forma-Pack), as they were not produced in anticipation of litigation or in rendition of legal services, but[***2] instead were produced for the purely business purpose of debt collection.

   I. BACKGROUND

   This appeal arises from an order of the Circuit Court for Anne Arundel County denying a motion for a protective order filed by DuPont. DuPont noted a timely appeal to the Court of Special Appeals, and the order of the circuit court was stayed pending a decision by the intermediate appellate court. We granted certiorari on our own motion prior to consideration by the Court of Special Appeals.
 
In accordance with Maryland Rule 8-207(a)(2), n1 the parties filed the following agreed statement of the case and facts:

n1 Maryland Rule 8-207(a)(2) states: "Statement of case and facts. Within 15 days after the filing of the joint election, the parties shall file with the Clerk four copies of an agreed statement of the case, including the essential facts, as prescribed by Rule 8-413(b)...."

   [**1132] "DuPont and Forma-Pack are parties to a lawsuit pending in the Superior Court for the State of California in and for the County of San Joaquin, [***3] entitled E. I. DuPont, Inc. v. Forma-Pack, Inc., Case No. 292630 (filed March 11, 1996) [*402] (the "California Action"). During the course of discovery in the California Action, Forma-Pack had two deposition subpoenas duces tecum issued by the Circuit Court for Anne Arundel County and served them on R. P. Ehrlich and his employer, Kaplan & Kaplan [(Kaplan)]. Forma-Pack sought to take the depositions of, and receive documents from, Mr. Ehrlich and Kaplan & Kaplan in Anne Arundel County. Kaplan & Kaplan is a collection agency which had been retained by DuPont's legal department in November, 1992 to undertake collection efforts against Forma-Pack and ultimately to retain a San Francisco attorney, Stanley Peck, to file the underlying California Action against Forma-Pack seeking collection of the alleged debt.

   In response to Forma-Pack's subpoenas, DuPont filed a motion for protective order to prevent the disclosure of communications and documents which it believes are protected by the attorney/client privilege and the work-product doctrine. Forma-Pack opposed DuPont's motion maintaining that the communications between DuPont's attorneys and its collection agents were not protected by [***4]either privilege. Both parties filed supplemental memoranda prior to the hearing before the trial court, which occurred on August 7, 1997.

   Along with its motion and memorandum, DuPont submitted the affidavits of two DuPont employees which stated that DuPont's legal department did not typically receive delinquent accounts, such as the Forma-Pack account, until after the appropriate DuPont business unit had attempted to collect the account.... Upon receipt of the Forma-Pack account, DuPont's legal department retained Kaplan & Kaplan to assist in the collection of the account and, if necessary, to retain counsel to file suit. The affidavits submitted further stated that once the legal department received the Forma-Pack account, DuPont presumed that litigation might be necessary (which in fact it was) and that all communications with Kaplan & Kaplan were intended to be privileged. The privilege log submitted by DuPont describes the pertinent documents, including two internal [*403] Kaplan & Kaplan documents, as reflecting communications between Kaplan & Kaplan and/or attorneys involved in this litigation or the California Action.

   As a result, DuPont argued that the collection of the Forma-Pack[***5] account, once it was referred to DuPont's legal department, was a purely legal function, and that communications made in the course of the engagement of Kaplan & Kaplan to aid in its collection efforts were protected by the attorney/client privilege. DuPont also argued that the documents and communications between its legal department and Kaplan & Kaplan were protected by the work-product doctrine because the communications were made in anticipation of litigation. DuPont also invited the court to conduct an in camera inspection of the documents listed on the privilege log.

   Forma-Pack disagreed with DuPont's position. Forma-Pack maintained that the attempted collection of the disputed debt in the underlying California Action was a business, not a legal, activity. Forma-Pack pointed out that DuPont's attempts to collect the disputed debt pre-dated the filing of the underlying action by several years. Forma-Pack also submitted the prior deposition testimony of one of DuPont's own affiants, Susan F. Herr, who stated that, "It may have been a business approach on behalf of DuPont in the collection of the debt." Forma-Pack maintained that this business approach to the collection of [***6]the debt was directly at issue in the underlying litigation and an area of inquiry to which Forma-Pack is entitled to discovery.

   By Memorandum Opinion and Order dated August 13, 1997, the trial court denied DuPont's motion for protective order. The court adopted Forma-Pack's argument[,] ruling that the attorney/client privilege did not apply because the collection of a debt is a business function and not a legal function. The court also ruled that [**1133] the work-product doctrine did not apply because it believed that the work performed by Kaplan & Kaplan for DuPont was not done with the belief that there was some possibility that litigation might result." (Footnotes and internal citations omitted). [*404]

   The issues before this Court are set forth in the trial judge's opinion:

   "In bringing this action, Dupont makes two arguments in support of its Motion for a Protective Order. First, Dupont argues that Kaplan is an agent of Dupont's legal department and that any communication between the two is not discoverable under the attorney-client privilege. In addition, Dupont argues that communications between Dupont and Kaplan in their efforts to collect a debt from Forma-Pack are not discoverable[***7] under the work-product doctrine. The Court finds these arguments unpersuasive and will deny Plaintiff's Motion for the reasons stated below."

   DuPont does not dispute that its arguments were correctly framed by the trial judge. Forma-Pack maintains that the circuit court was correct in finding that the hiring of a collection agency by a creditor corporation constitutes a business approach, not a legal approach, to debt collection and that Kaplan is not DuPont's agent for purposes of litigation. As such, Forma-Pack argues that the communications between DuPont and Kaplan are not shielded from discovery under either the work product doctrine or the attorney-client privilege. We are called upon to decide whether the trial judge was clearly erroneous in finding, after a full evidentiary hearing, that DuPont failed to meet its burden of proof as to the existence of either privilege and thus was not entitled to a protective order based on privilege. While there is no doubt that some of the documents might violate Kaplan's attorney-client privilege, in particular the items pertaining to communications between Kaplan and its own attorney, the communications between Kaplan and DuPont are not[***8] privileged for the reasons stated infra, and it is only DuPont and not Kaplan that is claiming these privileges. Also important to our holding is that DuPont hired a non-lawyer company to handle the debt collection matter, rather than an attorney or law firm, which leads us to conclude that legal advice and assistance were not DuPont's intent in retaining Kaplan. [*405]

   II. ANALYSIS

   The current Maryland discovery rules are premised on a philosophy encouraging liberal disclosure. See Balto. Transit v. Mezzanotti, 227 Md. 8, 13, 174 A.2d 768, 771 (1961). Indeed, the State's discovery rules are deliberately designed to be broad, comprehensive in scope and liberally construed. Id. In Kelch v. Mass Transit Adm., 287 Md. 223, 411 A.2d 449 (1980), this Court stated:

   "Among the basic objectives in providing for discovery is to require disclosure of facts by a party litigant to all of his adversaries, and thereby to eliminate, as far as possible, the necessity of any party to litigation going to trial in a confused or muddled state of mind, concerning the facts that give rise to the litigation.' Klein v. Weiss, 284 Md. 36, 55, 395 A.2d 126, 137 (1978). Further, 'in order to[***9] accomplish the above purposes, the discovery rules are to be liberally construed.' *** Baltimore Transit Co. v. Mezzanotti, 227 Md. 8, 13-14, 174 A.2d 768, 771 (1961)...."
 
287 Md. at 229-30, 411 A.2d at 453. See also Rubin v. Weissman, 59 Md. App. 392, 401, 475 A.2d 1235, 1239 (1984)(noting that "the discovery rules are to be liberally construed")(quoting Balto. Transit, 227 Md. at 13, 174 A.2d at 771); Barnes v. Lednum, 197 Md. 398, 406, 79 A.2d 520, 524 (1951)(stating that "modern discovery statutes or rules are intended to facilitate discovery").

   The main purposes to be served by allowing pretrial discovery of documents are "(i) to acquire accurate and useful information with respect to testimony which is likely to be presented by an opponent, (ii) to obtain information which appears reasonably calculated to lead to the discovery of admissible evidence, and (iii) to use as an aid in cross-examining the opponent's witnesses." Kelch, 287 Md. at 231, 411 A.2d at 454.

    In administering the discovery rules, trial judges "'are vested with a reasonable, [**1134] sound discretion in applying them, which discretion will not be disturbed in the absence of a showing of[***10] its abuse.'" Kelch, 287 Md. at 229, 411 A.2d at 453 [*406] (quoting Balto. Transit, 227 Md. at 13-14, 174 A.2d at 771 (footnote omitted)). Moreover, the party who is resisting discovery and is asserting a protective privilege bears the burden of establishing its existence and applicability. See Maxima v. 6933 Arlington Dev., 100 Md. App. 441, 456, 641 A.2d 977, 984 (1994); In re Criminal Investigation No. 1/242 Q, 326 Md. 1, 11, 602 A.2d 1220, 1225 (1992).

   With these principles in mind, particularly as they pertain to Md. Rule 2-402 and Maryland Code (1974, 1995 Repl. Vol.), Courts and Judicial Proceedings Article, 9-108, infra, we now turn to our analysis of the work product doctrine and the attorney-client privilege as they pertain to the case before us. As we examine the work product doctrine and the attorney-client privilege, it is helpful to note the following distinctions between the two.

   First, while they appear to embrace the same concepts of confidentiality and zealous client advocacy, the work product doctrine is separate and distinct from the attorney-client privilege.  Pratt v. State, 39 Md. App. 442, 446 n.2, 387 A.2d 779, 782 n.2 (1978). The attorney-client[***11] privilege as applied in judicial proceedings is narrowly construed, whereas the work product doctrine is broader in scope.  Leonen v. Johns-Manville, 135 F.R.D. 94, 96 (D. N.J. 1990). Indeed, even though it is often referred to as a privilege, the work product doctrine is not a privilege at all, but is "merely a requirement that very good cause be shown if the disclosure is made in the course of a lawyer's preparation of a case." City of Philadelphia v. Westinghouse Electric Corp., 210 F. Supp. 483, 485 (E.D. Pa. 1962). Second, the work product doctrine is "historically and traditionally a privilege of the attorney and not that of the client." Radiant Burners, Inc. v. American Gas Association, 207 F. Supp. 771, 776 (N.D. Ill. 1962). In contrast, it is the client who is the holder of the attorney-client privilege.  Trupp v. Wolff, 24 Md. App. 588, 609, 335 A.2d 171, 184 (1975). See also 5 LYNN MCLAIN, MARYLAND EVIDENCE § 503.1, at 481-82 (1987)(footnotes omitted). [*407]

   A. Work Product Doctrine
 
The work product doctrine protects from discovery the work of an attorney done in anticipation of litigation or in readiness for trial. See Md. Rule 2-402(c)(full text[***12] found in footnote 2, supra). The United States Supreme Court's decision in the seminal case of Hickman v. Taylor, 329 U.S. 495, 67 S. Ct. 385, 91 L. Ed. 451 (1947), has guided the work product doctrine in both the state and federal courts. When confronted with the work product doctrine, courts must balance the need for efficient litigation through liberal disclosure against the attorney's responsibility to be a zealous and protective advocate for his or her client. The Hickman Court acknowledged the tension of these competing interests when it stated that "the discovery provisions are to be applied as broadly and liberally as possible...," Hickman, 329 U.S. at 506, 67 S. Ct. at 391, 91 L. Ed. at 460, while also noting that "discovery ... has ultimate and necessary boundaries." 329 U.S. at 507, 67 S. Ct. at 392, 91 L. Ed. at 460.

   With the touchstone of the work product doctrine being that the materials must have been created in preparation for trial, the Hickman Court also discussed two different types of attorney work product, fact and opinion. Regarding fact work product, the Court stated:

   "No longer can the time-honored cry of fishing expedition' serve to preclude [***13]a party from inquiring into the facts underlying his opponent's case. Mutual knowledge of all the relevant facts gathered by both parties is essential to proper litigation. To that end, either party may compel the other to disgorge whatever facts he has in his possession." (Footnote omitted).
 
Hickman, 329 U.S. at 507, 67 S. Ct. at 392, 91 L. Ed. at 460.

   In discussing what has come to be called "opinion" work product, the Court stated that the work product doctrine does not
 
"concern the memoranda, briefs, communications and other writings prepared by counsel for his own use in prosecuting his client's case; and it is equally unrelated to writings [*408] which reflect an attorney's mental [**1135] impressions, conclusions, opinions or legal theories."
 
Hickman, 329 U.S. at 508, 67 S. Ct. at 392, 91 L. Ed. at 461.

   Subsequent courts have refined the distinction between fact and opinion work product, with both being generally protected and discoverable only in limited circumstances. See In re Grand Jury Proceedings, 33 F.3d 342, 348 (4th Cir. 1994). Fact work product can only be discovered when "substantial need" and "undue hardship" are shown, but opinion work product is almost[***14] always completely protected from disclosure. Id. See also Md. Rule 2-402(c).

   The work product doctrine of Hickman is codified in Md. Rule 2-402(c):

   "Trial Preparation--Materials. Subject to the provisions of sections (d) and (e) of this Rule, a party may obtain discovery of documents or other tangible things prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including an attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the materials are discoverable under section (a) of this Rule and that the party seeking discovery has substantial need for the materials in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of these materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation." (Emphasis added).
 
Maryland Rule 2-402 (c) is almost identical to Federal Rule of Civil Procedure [***15]26(b)(3). n2 See Shenk v. Berger, 86 Md. App. 498, 502, [*409] 587 A.2d 551, 553 (1991)("Maryland looks to corresponding federal rule for guidance in construing similar Maryland rule")(citing Snowhite v. State, Use of Tennant, 243 Md. 291, 308, 221 A.2d 342, 352 (1966)). As with Hickman and Federal Rule of Civil Procedure 26(b)(3), the standard for determining if a party can use Md. Rule 2-402(c) to shield his or her documents from discovery is whether the materials were prepared "in anticipation of litigation." Determining "whether a document or other tangible thing was 'prepared in anticipation of litigation or for trial' ... is essentially a question of fact, which, if in dispute, is to be determined by the trial judge following an evidentiary hearing." Kelch, 287 Md. at 228, 411 A.2d at 453. See also Rubin, 59 Md. App. at 402, 475 A.2d at 1240. In addition, the party claiming the privilege bears the burden "'to substantiate its non-discovery assertion by a preponderance of the evidence....'" Kelch, 287 Md. at 229, 411 A.2d at 453 (quoting Rule 422). If the moving party is successful in its claim, then the party seeking discovery can gain access to the communications[***16] by demonstrating "substantial need" and "undue hardship." See Md. Rule 2-402(c).

n2 "Trial Preparation: Materials. Subject to the provisions of subdivision (b)(4) of this rule, a party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party's case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation...."

[***17]

   In determining whether particular materials were prepared in anticipation of litigation, courts examine whether or not they were created in the ordinary course of business. APL Corp. v. Aetna Cas. & Sur. Co., 91 F.R.D. 10, 18 (D. Md. 1980). The Advisory Committee notes to the 1970 Amendments to the Federal Rules noted that "materials assembled in the ordinary course of business or for nonlitigation purposes are not under the partial immunity granted by [Rule [*410]26] subsection(b)(3)." Burlington Industries v. Exxon Corporation, 65 F.R.D. 26, 42 (D. Md. 1974). In looking at whether the materials at issue were prepared in anticipation of litigation, the court in APL stated:

   [**1136] "'Courts and commentators have offered a variety of formulas for the necessary nexus between the creation of the material and the prospect of litigation. See, e.g., Home Insurance Co. v. Ballenger Corp., 74 F.R.D. 93, 101 (N.D.Ga. 1977) (must be a "substantial probability that litigation will occur and that commencement of such litigation is imminent"); In re Grand Jury Investigation ( Sturgis), [412 F. Supp. 943, 948 (E.D. Pa. 1976)] (threat of litigation must be "real and imminent"); [***18] Stix Products, Inc. v. United Merchants & Manufacturers, Inc., 47 F.R.D. 334, 337 (S.D.N.Y. 1969) (prospect of litigation must be "identifiable"); 4 Moore's Federal Practice P 26.63(2.-1), at 26-349 (1970) (litigation must "reasonably have been anticipated or apprehended").'"
 
91 F.R.D. at 15 (quoting In re Grand Jury Investigation, 599 F.2d 1224, 1229 (3rd Cir. 1979)).

    Other jurisdictions have ruled that the communication must have been prepared "'principally or exclusively to assist in anticipated or ongoing litigation.'" Sackman v. Liggett Group, Inc., 920 F. Supp. 357, 366 (E.D. N.Y. 1996)(quoting Martin v. Valley Nat. Bank of Arizona, 140 F.R.D. 291, 304 (S.D. N.Y. 1991) and U.S. v. Construction Products Research, Inc., 73 F.3d 464, 473 (2d Cir. 1996)). See also Winter Panel Corp. v. Reichhold Chemicals, Inc., 124 F.R.D. 511, 515 (D. Mass. 1989)(noting there must be a substantial probability of litigation, a mere possibility is not enough); Diversified Industries, Inc. v. Meredith, 572 F.2d 596, 604 (8th Cir. 1977)(stating the "work product rule does not ... come into play merely because there is a remote prospect of future litigation" (citation[***19] omitted)).

   According to Wright and Miller, the test of whether documents were prepared in anticipation of litigation is stated as follows: [*411]

   "Prudent parties anticipate litigation, and begin preparation prior to the time suit is formally commenced. Thus the test should be whether, in light of the nature of the document and the factual situation in the particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation. But the converse of this is that even though litigation is already in prospect, there is no work- product immunity for documents prepared in the regular course of business rather than for purposes of litigation." (footnotes omitted) (emphasis added).
 
8 CHARLES A. WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 2024, at 343-46 (1994).

   According to the Leonen court, the essence of all these various jurisdictions' tests is that for a document to have been prepared in anticipation of litigation, there must have been a particular, identifiable claim or impending litigation.  135 F.R.D. at 97. The court stated: "The mere fact that litigation does eventually occur[] does not by itself bring documents within[***20] the ambit of the work-product doctrine." Id. Accordingly, the court in Kramer v. Raymond Corp. declared: "The mere fact that a party finds itself in circumstances that may lead to litigation, however, does not render all documents prepared with regard to those circumstances protected work product." 1992 U.S. Dist. LEXIS 7418, *7, Civ. No. 90-5026, 1992 WL 122856, at *3 (E.D. Pa. May 29, 1992)(emphasis added).

   In Griffith v. Davis, 161 F.R.D. 687 (C.D. Cal. 1995), the court found the document in question to have been prepared in the ordinary course of business. 161 F.R.D. at 699. The case involved a discovery request of a memorandum prepared by an IRS agent who was conducting an administrative investigation of a shooting accident.  161 F.R.D. at 690. In finding that the memorandum was properly discoverable, the court stated: "The work product doctrine does not protect materials assembled in the ordinary course of business. Rather, the primary motivating purpose behind the creation of the materials must be as an aid in ... future litigation." Griffith, 161 F.R.D. at 698 (emphasis in original and added). The court [*412] further found that "because the memorandum would have been generated whether or[***21] not litigation was pending, it does not qualify as attorney work product." Griffith, 161 F.R.D. at 699.

   Similarly, the court in United States v. Young held that documents used to prepare [**1137] a taxpayer's tax returns were "not covered [by the work product doctrine] because they were not prepared in anticipation of litigation but rather in the ordinary course of business pursuant to public requirements unrelated to litigation." 1976 U.S. Dist. LEXIS 15241, *5, Civil Action No. 6-70198, 1976 WL 1032, at * 2 (E.D. Mich., S.D. May 5, 1976).

   As stated supra, in the instant case the burden is on DuPont, as the moving party, to establish that the documents are protected from disclosure under the work product doctrine. Once DuPont meets this burden, the burden then shifts to Forma-Pack to demonstrate "substantial need" and "undue hardship." However, there was no need for this second step, since Judge Loney properly found that DuPont failed to meet its burden of showing that the documents in question were prepared in anticipation of litigation rather than in the ordinary course of business. His decision was reached after a full evidentiary hearing, and the fact findings upon which it was based were not clearly erroneous. [***22] See Md. Rule 8-131 (c). n3 In his well-reasoned written decision, the trial judge wrote:

n3 "Action tried without a jury. When an action has been tried without a jury, the appellate court will review the case on both the law and the evidence. It will not set aside the judgment of the trial court on the evidence unless clearly erroneous, and will give due regard to the opportunity of the trial court to judge the credibility of the witnesses."

   "In the present case, DuPont argues that the documents created by Kaplan and subpoenaed by Forma-Pack are protected by the work-product doctrine because once a delinquent account, like the Forma-Pack account, is transferred to DuPont's legal department, it is presumed that litigation may be necessary. The Court finds this argument unpersuasive because debt collection, of the type which [*413]Kaplan was engaged in, is a business practice and not a legal practice. The Court does not find that the debt collection procedure conducted by Kaplan on behalf of DuPont can be said [***23]  to have been done in the belief that there was some possibility that litigation may be the result. As such, the Court finds that the discovery Forma-Pack seeks is not protected under the work-product doctrine because it is a business approach to debt collection rather than a legal approach used in anticipation of litigation." (Emphasis added).

   Judge Loney's conclusion that a business approach to debt collection was used by DuPont in the hiring of Kaplan, rather than a legal approach, is strongly supported by the deposition of Susan F. Herr, the employee in DuPont's legal department responsible for the collection of the Forma-Pack account during the period in which most of the disputed communications were generated. Her deposition included the following:

   "[Question:] So we're in mid-1994 up to March of 1996, did you handle the account collection for DuPont?

   [Answer:] Yes.
 
   [Question:] Okay. Did you authorize DuPont to commence litigation against Forma-Pack?

   [Answer:] In consultation with the business, it may have been a business approach on behalf of DuPont in the collection of the debt." (Emphasis added).

   Thus, it is clear from Ms. Herr's deposition that DuPont's[***24] own legal department viewed the Forma-Pack collection matter as a business approach, rather than a legal approach taken in anticipation of litigation. As such, any documents generated between Kaplan and DuPont would be materials created in the ordinary course of business and not in anticipation of litigation.

   From the foregoing, it is reasonable for Judge Loney to make the factual finding that when DuPont hired a collection agency that was not authorized to practice law instead of an attorney, the primary purpose was to collect a debt and not to litigate the matter. This is especially true in this case, where [*414]the communications between DuPont and Kaplan began three years prior to the initiation of litigation to collect the debt. The role of a collection agency generally is to provide a business alternative for the collection of a debt, not to serve as an agent for purposes of litigation, such as a paralegal or private investigator. Consequently, any communications between the creditor corporation, DuPont, [**1138] and the collection agency, Kaplan, were properly determined to be not made in anticipation of concrete or imminent litigation, but rather made for the express purpose of avoiding[***25] litigation altogether. Moreover, Judge Loney could also conclude that DuPont's legal department was not intending to represent the corporation in any litigation that may arise if Kaplan was unsuccessful in its debt collection efforts. As the record reflects, all the legal department did was forward the matter to Kaplan. DuPont did not even want to be involved in the decision as to what law firm should represent the corporation should litigation ever become necessary.

   Consequently, there is no basis for rejecting the factual findings that Kaplan was hired to perform a business function, not a legal function, and that the communications between DuPont and Kaplan were not in anticipation of litigation or for trial. There was nothing clearly erroneous in the decision by the trier of fact that DuPont simply failed to meet its burden of proving, by a preponderance of the evidence, that the work product doctrine shielded the documents in question from discovery by Forma-Pack.
 
B. Attorney-Client Privilege
 
1. The Privilege in General

   The Supreme Court has recognized the attorney-client privilege as "the oldest of the privileges for confidential communications known to the common[***26] law." Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S. Ct. 677, 682, 66 L. Ed. 2d 584, 591 (1981). In Maryland, the privilege has been recognized as a rule of evidence that prevents the disclosure of a confidential communication made by a client to his attorney for the purpose of obtaining legal advice. Levitsky v. Prince [*415] George's Co., 50 Md. App. 484, 491, 439 A.2d 600, 604 (1982). In Harrison v. State, we essentially adopted Professor Wigmore's definition of the attorney-client privilege:
 
   "'(1) Where legal advice of [any] kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his insistence permanently protected (7) from disclosure by himself or by the legal adviser, (8) except the protection [may] be waived.'"
 
276 Md. 122, 135, 345 A.2d 830, 838 (1975)(quoting 8 JOHN H. WIGMORE, WIGMORE ON EVIDENCE § 2292, at 554 (McNaughton rev. ed. 1961)(footnote omitted)).

   The attorney-client privilege is codified in the Md. Code (1974, 1995 Repl.Vol.), Courts and Judicial Proceedings Art., § 9-108, and states that "[a] person may not be[***27] compelled to testify in violation of the attorney-client privilege." The party seeking the protection of the privilege bears the burden of establishing its existence.  Maxima, 100 Md. App. at 456, 641 A.2d at 984; In re Criminal Investigation No. 1/242 Q, 326 Md. at 11, 602 A.2d at 1225. Once the attorney-client privilege is invoked, the trial court decides as a matter of law whether the requisite privilege relationship exists, and if it does, "whether or not any such communication is privileged." Harrison, 276 Md. at 136, 345 A.2d at 838. Because the application of the attorney-client privilege withholds relevant information from the fact finder, the privilege contains some limitations and should be narrowly construed. Cf.  Morris v. State , 4 Md. App. 252, 254-55, 242 A.2d 559, 561 (1968). See also In re Criminal Investigation No. 1/242 Q, 326 Md. at 11, 602 A.2d at 1225 (noting that the privilege is not absolute); In Re Grand Jury Proceedings, 727 F.2d 1352, 1355 (4th Cir. 1984)(noting that the privilege must be strictly construed);  Levitsky , 50 Md. App. at 494, 439 A.2d at 606(strict construction of privilege is favored).

   The court in Burlington Industries [***28]  v. Exxon Corporation set out the dual requirement for applicability of the attorney-client privilege when it stated: "Only those attorney-client [*416] communications pertaining to legal assistance and made with the intention of confidentiality are within the ambit of the privilege." 65 F.R.D. at 37 (citation omitted)(emphasis added). In discussing the "legal advice" prong of the attorney-client privilege, the court in Lanasa vs. State, 109 Md. 602, 71 A. 1058 (1909), stated: "To make the communications privileged, they ... must relate to professional advice and to the [**1139] subject-matter about which such advice is sought." 109 Md. at 617, 71 A. at 1074 (emphasis added). See also Henson By and Through Mawyer v. Wyeth Laboratories, 118 F.R.D. 584, 587 (W.D. Va. 1987)(quoting N.C. Elec. Membership Corp. v. Carolina Power, 110 F.R.D. 511, 514 (M.D.N.C. 1986)("For the privilege to apply, the client's confidential communication must be for the primary purpose of soliciting legal, rather than business, advice.'"); Morris, 4 Md. App. at 255, 242 A.2d at 561 (quoting Colton v. United States, 306 F.2d 633, 637, cert. den. 371 U.S. 951, 83 S. Ct. 505, 9 L. Ed. 2d[***29] 499 (1962))("The privilege extends essentially only to the substance of matters communicated to an attorney in professional confidence.").

   Regarding the "confidentiality" prong of the attorney-client privilege for a communication to be confidential, it is essential that it not be intended for disclosure to third persons.  United States v. (Under Seal), 748 F.2d 871, 874 (4th Cir. 1984). The United States v. (Under Seal) court held that the attorney-client privilege did not apply to a whole series of corporate documents "because the communications revealed could not reasonably have been expected to remain confidential." 748 F.2d at 877. In examining the items in question, the court stated that several of the documents contained information that "would reasonably be expected to be imparted to a third party." United States v. (Under Seal), 748 F.2d at 877-78. The court declared, "if a client communicates information to his attorney with the understanding that the information will be revealed to others, that information ... will not enjoy the privilege." United States v. (Under Seal), 748 F.2d at 875. See also Trupp, 24 Md. App. at 609, 335 A.2d at 184 (holding that[***30] for the attorney-client privilege to apply, [*417] the subject of communication must be confidential and not made in the presence of a third person).

   Along with looking at whether the communications between the attorney and the client were intended to be conveyed to a third party, thus destroying confidentiality, courts have also looked at the role of the attorney at the time the communications were made to determine whether they are confidential or not. The United States v. (Under Seal) court noted "that the existence of the attorney-client privilege does not alone raise a presumption of confidentiality.... We must look to the services which the attorney has been employed to provide...." 748 F.2d at 875 (citations omitted).

   While this Court has not specifically addressed whether collection efforts constitute legal activity, some cases have indicated that the attempted recovery of a debt through a collection agent, even if he or she is an attorney, is a business function and not a legal function. The court in In re Shapiro stated: "Where the attorney acts as a business advisor or collection agent ... the communications between him and his client are not protected by the privilege." [***31]381 F. Supp. 21, 22 (N.D. Ill. 1974)(emphasis added)(footnote omitted). While in the instant case, it is not the attorney (DuPont's legal department) who is acting as a collection agent, but instead Kaplan whom the corporation hired for this purpose, Shapiro is illustrative in pointing out that many courts have held that debt collection activities do not fall within the ambit of the attorney-client privilege. See also In re Witness Before the Grand Jury, 631 F. Supp. 32, 33 (E.D. Wis. 1985) and Young, Civil Action No. 6-70198, 1976 WL 1032, at * 1 (quoting same language from Shapiro, 381 F. Supp. at 22). Similarly, Kelly v. Simon, 1962 U.S. Dist. LEXIS 5118, 9 A.F.T.R.2d 888 (S.D. Cal. 1962), involved an attorney served with summonses to produce certain documents of his clients, who were being investigated by the Internal Revenue Service. 9 A.F.T.R.2d at 889. In finding the documents not privileged, the court stated that "to the extent that respondent was acting as a business manager or rent collection agent ... rather than as attorney, no privilege attaches." 9 A.F.T.R.2d at 890 (emphasis added). [*418]

   2. The Privilege in the Corporate Setting
 
As early[***32] as 1915, the Supreme Court assumed that the attorney-client privilege applied when the client is a corporation.  United States v. Louis. & Nash. R. R., 236 U.S. 318, 35 S. Ct. 363, 59 L. Ed. 598 (1915)(defendant railroad company refused inspection of various documents created by special agents [**1140] of Interstate Commerce Commission, claiming documents were privileged). See also Supreme Court Standard 503(a), relating to the attorney-client privilege, as cited in Diversified Industries, 572 F.2d at 605 ("A client' is a person ... or corporation ... who is rendered professional legal services by a lawyer, or who consults a lawyer with a view to obtaining professional legal services from him." (Emphasis added)). In the landmark case of Upjohn, supra, the Court laid to rest any remaining doubts that a corporation is entitled to claim the attorney-client privilege. Confusion still exists, however, regarding the scope of exactly which employees in a corporation may communicate with corporate counsel, either in-house or out-of-house, and still retain protection under the attorney-client privilege. Over the years, several theories have emerged.

   The first case to develop a[***33] specific test addressing the scope of protection in the corporate setting was United States v. United Shoe Machinery Corporation, 89 F. Supp. 357 (D. Mass. 1950). The court essentially held that a confidential statement to counsel by any officer or employee of the corporation might well be privileged. United Shoe, 89 F. Supp. at 358-59. This broad theory of privilege in the corporate environment was severely curtailed in Radiant Burners in which the court held: "This personal privilege of the client must ... be claimed only by natural individuals and not by mere corporate entities." 207 F. Supp. at 773 (emphasis added). The Radiant Burners court essentially eliminated the attorney-client privilege for corporations. Later in Westinghouse Electric, supra, the "control group test" was created.  210 F. Supp. at 483. Under this test, the attorney-client privilege only protects communications directed to or from employees in the control group, which is comprised of those who play a substantial role [*419] in corporate decision-making. Westinghouse, 210 F. Supp. at 485.
 
The Supreme Court in Upjohn rejected the control group test, finding it too narrow in scope[***34] in that "it will frequently be employees beyond the control group ... who will possess the information needed by the corporation's lawyers." 449 U.S. at 391, 101 S. Ct. at 683, 66 L. Ed. 2d at 592. The Court further stated that the control group test "frustrates the very purpose of the privilege by discouraging the communication of relevant information by employees of the client to attorneys seeking to render legal advice to the client corporation." Upjohn, 449 U.S. at 392, 101 S. Ct. at 684, 66 L. Ed. 2d at 593. Although the Court deliberately refrained from defining the scope of the attorney-client privilege in the corporate setting, its analysis reflects factors found in the subject-matter test. Amy L. Weiss, In-house Counsel Beware: Wearing the Business Hat Could Mean Losing the Privilege, 11 GEO. J. LEGAL ETHICS 393, 396-97 (1998).

   The subject-matter test is set forth in Harper & Row Publishers, Inc. v. Decker as follows:

   "An employee of a corporation, though not a member of its control group, is sufficiently identified with the corporation so that his communication to the corporation's attorney is privileged where the employee makes the communication at the direction of[***35] his superiors in the corporation and where the subject matter upon which the attorney's advice is sought by the corporation and dealt with in the communication is the performance by the employee of the duties of his employment."
 
423 F.2d 487, 491-92 (7th Cir. 1970).

   The Florida Supreme Court recently established a new test to determine the scope of the attorney-client privilege as it applies to corporations. See Southern Bell Tel. & Tel. Co. v. Deason, 632 So. 2d 1377 (Fla. 1994). That court acknowledged that because a corporation can only act through its agents, unlike a natural person, and because a corporation relies much more heavily on its counsel for business advice than an [*420] individual, "it is likely that the zone of silence' will be enlarged by virtue of the corporation's continual contact with its legal counsel." Deason, 632 So. 2d at 1383 (citation omitted). Concerned that a corporation could "conduct its ordinary business through lawyers to hide its affairs from light of day," Tri-State Equip. v. United States, 1996 U.S. Dist. LEXIS 6705, 77 A.F.T.R.2d (RIA) 2198, 2199 (E.D. Cal. 1996), the Deason court attempted to strike a balance [**1141] between the competing interests of encouraging corporations[***36] to seek legal advice so they can best comply with the laws against the real concern of companies using their counsel to prevent discovery. Deason, 632 So. 2d at 1383. See also Kelly, 9 A.F.T.R.2d at 890 ("If documents are not privileged in the hands of a client, the fact that they are turned over to an attorney does not create a privilege.").

   The Deason court combined the tests established in Harper & Row and Diversified Industries n4 and arrived at the following criteria as to whether a corporation's communications are protected by the attorney-client privilege:

n4 "The attorney-client privilege is applicable to an employee's communication if (1) the communication was made for the purpose of securing legal advice; (2) the employee making the communication did so at the direction of his corporate superior; (3) the superior made the request so that the corporation could secure legal advice; (4) the subject matter of the communication is within the scope of the employee's corporate duties; and (5) the communication is not disseminated beyond those persons who, because of the corporate structure, need to know its contents. We note, moreover, that the corporation has the burden of showing that the communication in issue meets all of the above requirements." Diversified Industries, Inc. v. Meredith, 572 F.2d 596, 609 (8th Cir. 1978).

[***37]

   "(1) The communication would not have been made but for the contemplation of legal services; (2) the employee making the communication did so at the direction of his or her corporate superior; (3) the superior made the request of the employee as part of the corporation's effort to secure legal advice or services; (4) the content of the communication relates to the legal services being rendered, and the subject matter of the communication is within the scope of the employee's duties; [and] (5) the communication is not disseminated [*421]beyond those persons who, because of the corporate structure, need to know its contents."
 
Deason, 632 So. 2d at 1383.

   Thus, it is clear that a corporation can be a client for purposes of the attorney-client privilege; what is unclear is exactly how far this protection extends regarding the corporation's employees and agents. While we decline to adopt a particular set of criteria for the application of the privilege in the corporate context until we are required to do so, the communications in the instant case are not protected under any of the tests.

   3. The Privilege as Applied to This Case

   The first step in our analysis is to determine[***38] as a threshold issue whether an attorney-client relationship is present in this case. A key element of this determination is whether legal advice was being sought by the client. The second step, once an attorney-client relationship is determined to exist, is to examine whether the communications between the attorney and the client were confidential. For the reasons stated infra, there is no need for us to reach this second step in the instant case, as we find that no attorney-client relationship existed.

   In clarifying the roles of the parties, we must keep in mind that the attorney is DuPont's in-house legal department, and it is invoking the privilege on behalf of its client, DuPont the corporation. Kaplan is the non-lawyer collection agency that the DuPont legal department hired to collect the Forma-Pack debt, and DuPont is alleging that Kaplan is its agent for purposes of litigation (and that Peck is a subagent). Peck is the attorney that Kaplan, not DuPont, eventually hired to litigate the debt collection matter after Kaplan's efforts proved unsuccessful. n5 A final, critical fact is that Kaplan, the party [*422] from whom discovery is being sought by Forma-Pack, is not asserting [***39]the attorney-client privilege; only DuPont is asserting the privilege.

n5 As Kaplan is not authorized to practice law, there is no possibility of DuPont's legal department claiming that it is the client and Kaplan is the attorney, via Peck as its subagent, for purposes of establishing the attorney-client privilege.

   We affirm the trial judge's decision that the communications between DuPont and Kaplan are not protected from discovery under the attorney-client privilege, as no attorney-client relationship existed. When DuPont, the corporate client, consulted with its attorney, the legal department, it was not [**1142] doing so for legal advice regarding the Forma-Pack debt. Instead, the client corporation was simply routing the debt collection matter to its legal department, which in turn was to transmit it to an outside, non-lawyer collection agency. According to Professor Lynn McLain:

   "Communications [with in-house counsel] with regard to business advice are unprotected. When the attorney-client privilege is invoked[***40] with regard to communications with in-house counsel, the courts will look particularly closely at whether counsel was providing business advice, rather than legal advice or services."
 
5 LYNN MCLAIN, MARYLAND EVIDENCE § 503.9, at 493 (1987)(footnote omitted).

   Thus, when DuPont hired Kaplan it was not for the purposes of instituting legal action; instead, DuPont was consulting with Kaplan in a business capacity, for the typical business purpose of collecting a debt. While Kaplan may certainly have been DuPont's agent for the business purpose of collecting the debt, the collection agency was not hired as an agent for purposes of litigation. Nor can Kaplan's role be analogized to that of an expert hired to assist with litigation. The case law clearly delineates several roles of the attorney, also applicable to the attorney's agent, that are generally not consistent with the rendering of professional legal advice. When the attorney, or his or her agent, is primarily acting as a collection agent or business advisor or manager, there is no attorney-client relationship because no legal advice is being sought or given. Consequently, there can be no confidential privileged communications[***41] between the parties when the attorney [*423]or his or her agent is acting in one of these non-legal capacities. Thus, because Kaplan was serving as a debt collection agent, in a non-legal capacity, there is no attorney-client privilege claim that DuPont can make to effectively shield the communications from discovery by Forma-Pack. "Communications are not privileged merely because an individual provides law-related services if the client should have known the person was not authorized to practice law." 2 CHRISTOPHER B. MUELLER & LAIRD C. KIRKPATRICK, FEDERAL EVIDENCE § 183, at 311 (2d ed. 1994)(footnote omitted).

   In focusing on the specific documents at issue, DuPont has not in the trial court nor in its brief on appeal contended that any individual document has some special reason for being privileged beyond the arguments addressed by the trial judge. DuPont chose to make one argument lumping together all of the documents, with no document singled out as having individualized reasons for being privileged not common to the entire class. In essence, DuPont's argument was that all of the documents exchanged between it and Kaplan enjoyed a privilege. In addition, it is only DuPont's and not[***42] Kaplan's attorney-client privilege that is being asserted, and the documents conveyed between DuPont and Kaplan are not protected by DuPont's attorney-client privilege because no attorney-client relationship as to DuPont, the legal department, and Kaplan existed. The trial judge properly found that DuPont failed to meet its burden of proving a prima facie case that these communications were privileged when he stated, "there was no evidence of communications between Dupont's legal department and Kaplan which would indicate that Dupont intended the communications between itself and Kaplan would be held in confidence."

   In sum, Kaplan was hired by DuPont for a business purpose only, to collect a debt. In keeping with this finding, there is nothing clearly erroneous in the trial judge's decision that the attorney-client privilege does not apply to the communications in this case. The judge dealt with the facts presented and the arguments made by counsel, and did so admirably. We agree with Judge Loney when he stated in his written decision that[*424]
 
"the communication between DuPont and Kaplan is no more than a business approach used in an effort to collect a debt from Forma-Pack.[***43] As such, the Court finds that the communications between DuPont and Kaplan and Kaplan's agents which refer to the attempts made in collecting a debt owed by Forma-Pack are not protected from discovery pursuant to the attorney-client privilege." (Emphasis added).

   [**1143] We might reach an entirely different conclusion if DuPont had initially sent the debt collection matter to an attorney, rather than utilizing a non-lawyer collection agency's services, or if DuPont had intended to litigate the matter itself. However, it is clear from the record that DuPont wanted no part of any litigation effort. Indeed, it was within Kaplan's sole discretion whether to litigate the matter or not. If a private individual sent receivables to a collection agency such as Kaplan, the attorney-client relationship would obviously not apply. DuPont, by using its legal department as a conduit through which to route various communications, should not be given a greater privilege than a private client in a similar situation. Thus, we conclude that a corporation cannot shield materials from discovery, and confer on them the cloak of confidentiality, simply by routing them through its legal counsel. To hold otherwise[***44] would greatly restrict the liberal underpinning of our discovery rules, at least as they apply to corporations and would allow corporate entities to protect virtually all communications from disclosure. Corporations already have vast resources at their disposal with which to defend themselves in litigation, and we see no reason to provide them with an impenetrable shield that would afford them greater protection from discovery than that of an individual client.

   III. CONCLUSION

   For the reasons stated, we affirm the judgment of the trial court and hold that neither the work product doctrine nor the attorney-client privilege protects the communications between DuPont and Kaplan from discovery by Forma-Pack. Kaplan [*425] was not hired by DuPont's legal department to aid in preparing DuPont's lawsuit against Forma-Pack, nor was it hired as a litigation agent or expert to assist the attorney in providing its client with proper legal advice. Thus, the materials were not produced in anticipation of litigation or in rendition of legal services, but instead were produced for the purely business purpose of debt collection.
 
JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AFFIRMED. COSTS [***45]TO BE PAID BY APPELLANT.
[*435contd]

   APPENDIX

In support of its claim of attorney-client privilege and work product
doctrine, DuPont introduced the following privilege log:
Document Description              Letter from Rodney S. Bonds to Charles
                                  Hirsch dated May 29, 1997
Identity and Position of Author   Rodney S. Bonds, Manager, Kaplan &
                                  Kaplan, Inc., Manager Legal Dept.
Identity and Position of          DuPont attorney Mr. Charles Hirsch,
Recipients                        Ballard, Spahr, Andrews & Ingeroll
Privilege Claimed                 Attorney Client Privilege/Work Product
Exhibit A-1
Document Description              Computer record
Identity and Position of Author   Kaplan & Kaplan Internal
Identity and Position of          Internal
Recipients
Privilege Claimed                 Attorney Client Privilege/Work Product
Exhibit A-2
Document Description              Facsimile from Bonds to Hirsch dated
                                  5/8/97
Identity and Position of Author   Rodney S. Bonds, Manager, Kaplan &

                                  Kaplan, Manager Legal Department
Identity and Position of          DuPont attorney Mr. Charles Hirsch,
Recipients                        Ballard, Spahr, Andrews & Ingersroll
Privilege Claimed                 Attorney Client Privilege/Work Product
Exhibit A-3
Document Description              Letter from Edward J. Friedman to Mr.
                                  Rodney Bonds dated April 22, 1997
Identity and Position of Author   Kaplan & Kaplan attorney Edward J.
                                  Friedman, Weinstock, Stevan, Harris &
                                  Friedman, P.A.
Identity and Position of          Mr. Rodney Bonds, Kaplan & Kaplan,
Recipients                        Manager Legal Dept.
Privilege Claimed                 Attorney Client Privilege/Work Product
Exhibit A-4
Document Description              Letter from Edward J. Friedman to Mr.
                                  Rodney Bonds dated April 16, 1997
Identity and Position of Author   Kaplan & Kaplan attorney Edward J.
                                  Friedman, Weinstock, Stevan, Harris
                                  Friedman, P.A.
Identity and Position of          Mr. Rodney Bonds, Kaplan & Kaplan,
Recipients                        Manager Legal Dept.
Privilege Claimed                 Attorney Client Privilege/Work Product
Exhibit A-5
Document Description              Letter from Brian L. Cella to Kaplan &
                                  Kaplan dated March 21, 1997
Identity and Position Author      Kaplan & Kaplan attorney Edward J.
                                  Friedman, Weinstock, Stevan, Harris &
                                  Friedman, P.A.
Identity and Position of          Mr. Rodney Bonds, Kaplan & Kaplan,
Recipients                        Manager Legal Dept.
Privilege Claimed                 Attorney Client Privilege/Work Product
Exhibit A-6
Document Description              Facsimile from Rodney Bonds to Bob Lange
                                  dated February 14, 1997
Identity and Position of Author   Rodney Bonds, Kaplan & Kaplan, Manager
                                  Legal Dept.
Identity and Position of          DuPont attorney Robert J.Lange, Esq.
Recipients                        Glynn, Cella & Lange
Privilege Claimed                 Attorney Client Privilege/Work Product
Exhibit A-7
Document Description              Letter from Robert J. Lange to Mr. Rodney
                                  Bonds dated February 4, 1997
Identity and Position Author      DuPont attorney Robert J. Lange, Glynn,
                                  Cella & Lange
Identity and Position of          Rodney Bonds, Kaplan & Kaplan, Manager
Recipients                        Legal Dept.
Privilege Claimed                 Attorney Client Privilege/Work Product
Exhibit A-8
Document Description              Facsimile from Jim Mullins to DuPont
                                  Legal dated June 19, 1996
Identity and Position of Author   Jim Mullins, Kaplan & Kaplan, Legal
                                  Reresentative
Identity and Position of          Faye Vaughn, DuPont Legal
Recipients

Privilege Claimed                 Attorney-Client Privilege/Work Product
Exhibit A-9
Document Description              Letter from Stanley Peck addressed to Jim
                                  Mullins dated June 19, 1996
Identity and Position of Author   DuPont attorney Stanley Peck
Identity and Position of          Jim Mullins, Kaplan & Kaplan, Legal
Recipients                        Representative
Privilege Claimed                 Attorney-Client Privilege/Work Product
Exhibit A-10
Document Description              Letter from Jim Mullins to Susan Herr
                                  dated March 23, 1996 forwarding DuPont
                                  Counsel Stanley Peck Progress Report of
                                  3/15/96
Identity and Position of Author   Jim Mullins, Kaplan & Kaplan, Legal
                                  Representative, Stanley Peck, DuPont
                                  counsel
Identity and Position of          Ms. Susan Herr, DuPont Legal
Recipients
Privilege Claimed                 Attorney Client Privilege/Work Product
Exhibit A-11
Document Description              Letter form Jim Mullins to Stanley Peck
                                  dated February 22, 1996
Identity and Position of Author   Jim Mullins, Kaplan & Kaplan, Legal
                                  Representative
Identity and Position of          DuPont attorney Stanley Peck
Recipients
Privilege Claimed                 Attorney Client Privilege/Work Product
Exhibit A-12
Document Description              Letter from Stanley Peck to Jim Mullins
                                  dated May 31, 1996
Identity and Position of Author   DuPont attorney Stanley Peck
Identity and Position of          Jim Mullins, Kaplan & Kaplan, Legal
Recipients                        Representative
Privilege Claimed                 Attorney Client Privilege/Work Product
Exhibit A-13
Document Description              Letter from Jim Mullins to Stanley Peck
                                  dated September 27, 1995
Identity and Position of Author   Jim Mullins, Kaplan & Kaplan, Legal
                                  Representative
Identity and Position of          DuPont attorney Stanley Peck
Recipients
Privilege Claimed                 Attorney Client Privilege/Work Product
Exhibit A-14
Document Description              Memo from Jim Mullins to Susan Herr date
                                  June 23, 1995 attaching 6/14/95, 9/23/95
                                  correspondence from DuPont attorney
                                  Stanley Peck and 8/29/94 collection
                                  letter to Forma-Pack
Identity and Position of Author   Jim Mullins, Kaplan & Kaplan, Legal
                                  Representative, DuPont attorney Stanley
                                  Peck
Identity and Position of          Susan Herr, DuPont Legal
Recipients
Privilege Claimed                 Attorney Client Privilege/Work Product

Exhibit A-15
Document Description              8/94 Internal Kaplan & Kaplan "Request
                                  for Legal Action Form"
Identity and Position of Author   Kaplan & Kaplan
Identity and Position of          Internal
Recipients
                                  Privilege Claimes
                                  Attorney Client Privilege/Work Product

 [*425contd]

DISSENTBY: Raker

DISSENT:  
Dissenting Opinion by Raker, J., in which Eldridge, J. and Wilner, J. join
 
Filed: October 8, 1998
 
I would[***46] reverse the judgment of the circuit court because I believe the trial judge applied the incorrect standard in determining whether the documents transmitted between Dupont and Kaplan were protected by the attorney-client privilege or the work product doctrine. In my view, the trial judge erroneously applied a per se rule that a function performed by a debt collection agent can never be a legal function, and thus can never be protected by the attorney-client privilege or the work product doctrine. Accordingly, I would remand the matter to the circuit court to conduct an in camera inspection of the documents in accordance with the request made by Dupont to the trial judge, in order to determine whether the attorney-client privilege or the work product doctrine protects the documents.

   At the outset, it is important to note the scope of my disagreement with the majority. Our basic dispute is factual, and surrounds the interpretation of the remarks of the trial judge. For that reason, it is important to set out the Memorandum and Order of the trial court.

   "The determinative element establishing the cloak of privilege is the presence of a confidential communication emanating[***47] from the client." Levitsky v. Prince George's Co., 50 Md. App. 484, 439 A.2d 600 (1982). In Levitsky, the Court [*426] of Special Appeals held that "the mere fact the expert may have communicated his opinion of value to either the attorney or client does not make it a privileged communication." Id. at 494 (citing State Highway Comm. v. Earl, 82 S.D. 139, 143 N.W.2d 88 ([S.D.] 1966)). In the present case, there was no evidence of communication between DuPont's legal department and Kaplan which would indicate that DuPont intended the communications between itself and Kaplan would be held in confidence. On the contrary, DuPont [**1144]hired Kaplan in an attempt to collect an outstanding debt owed by Forma-Pack.
 
This Court agrees with Forma-Pack when it finds that the function of a collection agent is non-legal in nature and is no more than a business approach designed to collect outstanding debts. Maryland had no case law directly on point which addresses whether a collection agent's communications with an attorney may be undiscoverable pursuant to the attorney-client privilege. As a result, Forma-Pack cites several cases from other jurisdictions in support of its argument. [***48] In particular, Forma-Pack cites Henson v. Wyeth Laboratories, Inc., which states that "for the privilege to apply, the confidential communication must be for the primary purpose of soliciting legal, rather than business advice." Henson, 118 F.R.D. 584 (W.D. Va. 1987) (citing North Carolina Elec. Membership Corp. v. Carolina Power, 110 F.R.D. 511 (M.D.N.C. 1986)). In addition, Forma-Pack cites that "where an attorney is acting as a business advisor or collections agent, . . . the communication between him and his client are not protected by the privilege." In re Witness Before the Grand Jury, 631 F. Supp. 32 (E.D. Wis. 1985) (quoting In re Shapiro, 381 F. Supp. at 22) (N.D. Ill. 1974)).

   This Court is persuaded by the arguments presented by Forma-Pack in these cases because the Court believes that the communication between DuPont and Kaplan is no more than a business approach used in an effort to collect a debt from Forma-Pack. As such, the Court finds that the communications between DuPont and Kaplan and Kaplan's [*427] agents which refer to the attempts made in collecting a debt owed by Forma-Pack are not protected from discovery pursuant to the attorney-client privilege. [***49]

   [DuPont] also argues that the communications between DuPont and Kaplan are protected by the work-product doctrine . . . .
 
* * * * * *

   DuPont argues that the documents created by Kaplan and subpoenaed by Forma-Pack are protected by the work-product doctrine because once a delinquent account . . . is transferred to DuPont's legal department, it is presumed that litigation may be necessary. The Court finds this argument unpersuasive because debt collection, of the type which Kaplan was engaged in, is a business practice and not a legal practice. 
 
(Emphasis added).

   The majority finds that the trial judge, after a full evidentiary hearing, was not clearly erroneous in finding that DuPont failed to meet its burden of proof as to the existence of any privilege. The majority concludes that "it is reasonable for Judge Loney to make the factual finding that when DuPont hired a collection agency that was not authorized to practice law instead of an attorney, the primary purpose was to collect a debt and not to litigate the matter." Maj. op. at 15. The majority reasons that "there is no basis for rejecting the factual findings that Kaplan was hired to perform a business function, [***50] not a legal function, and that the communications between DuPont and Kaplan were not in anticipation of litigation or for trial." Maj. op. at 16.

   I do not believe that the trial judge conducted a full evidentiary hearing, nor did the judge make the factual findings as set out by the majority. Rather, I believe that the basis for the court's ruling was that debt collection does not constitute legal activity. The only possible support for an argument that the trial court gave individualized consideration to the claims of privilege by DuPont is the trial court's [*428] statement, "in the present case, there was no evidence of communication between DuPont's legal department and Kaplan which would indicate that DuPont intended the communications between itself and Kaplan would be held in confidence." Nonetheless, the circuit court appeared to base its decision on the premise that neither the attorney-client privilege nor the work product doctrine could ever shield documents transmitted between an attorney and a collection agent hired on behalf of a client.

   The fairest reading of both the emphasized language and the memorandum opinion as a [**1145] whole leads to the conclusion that the court applied [***51]a per se rule that a function performed by a debt collection agent can never be a legal function, and thus can never be protected by the attorney-client privilege or work product doctrine. This conclusion is reinforced by the fact that DuPont offered to allow the trial judge to conduct an in camera inspection of the disputed documents, but the trial judge declined that request. n1 In applying this per se rule, the trial court used the wrong legal standard. Indeed, it appears as though the majority also applies a per se standard that the attempted recovery of a debt through a collection agent, even if the agent is an attorney, is a business function and not a legal function. See Maj. op. at 20. n2 

n1 The privilege log is set out in the Appendix.

n2 In support of its argument that debt collection is always primarily a business activity, rather than a legal function, Forma-Pack relies upon In re Shapiro, 381 F. Supp. 21 (N.D. Ill. 1974). Specifically, Forma-Pack cites the following passage:

   Where the attorney acts as a business advisor or collection agent, gives investment advice, or handles financial transactions for his client, the communications between him and his client are not protected by the privilege.
 
Id. at 22. The majority finds Shapiro "illustrative in pointing out that many courts have held that debt collection activities do not fall within the ambit of the attorney-client privilege." Maj. op. at 20. The majority and Forma-Pack read this passage too broadly. Shapiro does not state that activity performed by a debt collection agent can never be legal activity; rather, the quoted passage merely stands for the unremarkable proposition that activity motivated solely or primarily by a business purpose, rather than to assist the attorney in the rendition of legal services, is not entitled to protection. Such a proposition is consistent with the scope of the common law attorney-client privilege.

[*429] [***52]

   I am mindful that in discovery matters, the trial court has broad discretion which will be disturbed only upon a showing of abuse. This legal discretion, however, does "not include the privilege of incorrect application of law . . . ." Brown v. Superior Court, Maricopa County, 137 Ariz. 327, 670 P.2d 725, 730 (Ariz. 1983); Koon v. United States, 518 U.S. 81, 116 S. Ct. 2035, 135 L. Ed. 2d 392 (1996) (noting that a district court abuses its discretion when it makes an error of law).
 
 The record in this case suggests at least one category of documents which might be privileged. Specifically, Kaplan retained an attorney, Stanley Peck, on behalf of DuPont to file the pending court action in the State of California against Forma-Pack. Communications between DuPont and Kaplan, involving that subject, might well be protected by the attorney-client privilege or work product doctrine. See 8 WIGMORE, EVIDENCE § 2317, at 619 (McNaughton rev. 1961) ("The attorney's agent is also the client's subagent and is acting as such for the client.") (footnote omitted).

   Although not specifically suggested by the record in this case, other categories of information might be entitled[***53] to protection as the subject of communications between a debt collection agent and either an attorney or a client. For instance, as previously discussed, a letter from the agent in direct response to a query by the attorney, if made in anticipation of litigation, might be subject to the work product doctrine. Courts have identified other categories of information which might be protected by either the attorney-client privilege or work product doctrine. These categories of information include communications involving: the strength or weakness of a specific claim, see Spectrum Systems Int'l v. Chemical Bank, 78 N.Y.2d 371, 581 N.E.2d 1055, 1060, 575 N.Y.S.2d 809 (N.Y. 1991); the value of a legal claim and the fees and expenses that may be incurred in its defense, see Simon v. G. D. Searle & Co., 816 F.2d 397, 406 (8th Cir. 1987) (Gibson, J., dissenting), cert. denied, 484 U.S. 917, 108 S. Ct. 268, 98 L. Ed. 2d 225 [*430] (1987); and, possible legal strategies for a client to adopt, as well as a prediction about the likely outcome of litigation. See United States v. Adlman, 134 F.3d 1194, 1195 (2nd Cir. 1998). It follows that the trial court erred in concluding that no communication[***54] between DuPont and Kaplan could be protected by either the attorney-client privilege or work product doctrine.

   In my view, focusing on a facile checklist of "approved" occupations with whom an attorney may safely communicate will not accurately resolve DuPont's claim of attorney-client [**1146] privilege. Instead, under the relevant case law, the proper focus in determining privilege between a lawyer and an agent is on the content and purpose of those communications made during the course of the agency.

   Of course, as a threshold matter, the attorney-client privilege applies to an agent only if an agency relationship exists between the attorney and the agent on behalf of the client, or if an agency relationship exists between the client and the agent which involves the attorney.  Rosati v. Kuzman, 660 A.2d 263, 265 (R.I. 1995); see 5 LYNN MCLAIN, MARYLAND EVIDENCE § 503.1, at 482 n.7 ("'A "representative of the lawyer" is one employed by the lawyer to assist the lawyer in the rendition of professional services.'") (quoting UNIF. R. EVID. 502(a)(4)). Courts have found an agency relationship to exist "when three elements coalesce: (1) the principal must manifest that the agent will act for him (2) [***55] the agent must accept the undertaking and (3) the parties must agree that the principal will be in control of the undertaking." Rosati, 660 A.2d at 265. As to the case-specific determination of whether the privilege extends to communications between attorney or client, and the agent hired on behalf of the client, the proper focus is not on the mere existence of an agency relationship or on whether communications passed to or from the agent. See United States v. (Under Seal), 748 F.2d 871, 875 (4th Cir. 1984), appeal after remand,  757 F.2d 600 (4th Cir. 1985). The proper focus is whether the purpose of the communications was to aid the attorney in providing legal representation to the client.  See 3 J. WEINSTEIN & M. BERGER, WEINSTEIN'S FEDERAL EVIDENCE [*431] § 503.12[4][a], at 503-25 (2nd ed. 1998) (recognizing that communications between either agent and client or agent and attorney may be privileged, so long as the purpose of the communication is "to assist the attorney in the attorney's rendition of legal services") (footnote omitted).

   Courts have recognized circumstances in which the attorney-client privilege extends to communications between an attorney and an[***56] agent hired on behalf of a client. For instance, in United States v. Kovel, 296 F.2d 918, 922 (2nd Cir. 1961), the United States Court of Appeals for the Second Circuit concluded that information communicated to an accountant, when the accountant had been employed by a law firm to explain a complicated tax scenario, would be protected by the privilege if the information communicated was reasonably related to rendering proper representation. It was clear that such advice aided the attorney in representing the client. Similarly, in In re Allen, 106 F.3d 582 (4th Cir. 1997), cert. denied sub nom., McGraw v. Better Gov't Bureau, Inc.,     U.S.    , 118 S. Ct. 689, 139 L. Ed. 2d 635 (1998), the court recognized that the attorney-client privilege extended to communications between an attorney and an agent retained to perform the rudimentary task of conducting an initial factual investigation so that the attorney could more effectively "'sift[] through the facts with an eye to the legally relevant.'" Id. at 601 (quoting Upjohn Co. v. United States, 449 U.S. 383, 390-91, 101 S. Ct. 677, 683, 66 L. Ed. 2d 584 (1981)).

   In determining whether the work product doctrine extends[***57] to litigation materials prepared by a party's agent, the relevant inquiry is whether the party asserting the privilege has demonstrated that the primary purpose for the preparation of the materials was in anticipation of litigation. Cranford v. Montgomery County, 300 Md. 759, 791, 481 A.2d 221, 237 (1984); see United States v. Bornstein, 977 F.2d 112, 117 (4th Cir. 1992); State ex rel. United Hosp. v. Bedell, 199 W. Va. 316, 484 S.E.2d 199, 212 (W.Va. 1997). The gravamen of this inquiry focuses upon the "causal relationship between the anticipated litigation and the creation of the document, rather than a requirement that the litigation-causing events have already [*432] occurred." United States v. Adlman, 68 F.3d 1495, 1501 (2d Cir. 1995). The Supreme Court of Iowa persuasively has observed:

   "Prudent parties anticipate litigation, and begin preparation prior to the time suit is formally commenced. Thus the test should be whether, in the light of the nature of the document and the factual situation in the particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation . . . ." [8 C. WRIGHT & A. MILLER, FEDERAL PRACTICE [***58]AND PROCEDURE [**1147] § 2024, at 198-99 (1970).] It does not matter that the investigation is routine. Even a routine investigation may be made in anticipation of litigation. Thus a document prepared in the regular course of business may be prepared in anticipation of litigation when the party's business is to prepare for litigation.
 
Ashmead v. Harris, 336 N.W.2d 197, 200 (Iowa 1983) (internal citations partially omitted).

   Other courts have identified instances when a function performed by an agent, on behalf of a client, resulted in the creation of materials in anticipation of litigation. For example, a physician's letter was held to be protected work product when the letter was in response to a direct request by an attorney as to the cause of the client's physical ailment.  Sprague v. Office of Workers' Comp., 688 F.2d 862, 868-70 (1st Cir. 1982). In United States v. Adlman, 134 F.3d 1194 (2nd Cir. 1998), the United States Court of Appeals for the Second Circuit addressed the protection from discovery of a study, prepared for an attorney, assessing the likely results of a business transaction which, if it occurred, was expected to result in litigation. The court held that[***59] the study was protected from discovery if prepared in anticipation of expected litigation.  Id. at 1195. The Second Circuit reasoned that the study contained the mental impressions of the agent who prepared the study for the attorney:
 
[The study] proposed possible legal theories or strategies for [the client] to adopt in response, recommended preferred [*433] methods of structuring the transaction, and made predictions about the likely outcome of litigation.
 
Id. at 1195. The Adlman court focused upon the nexus between the anticipated litigation and the creation of the materials; the court also focused upon the protection of the mental impressions of an agent generated in anticipation of litigation for an attorney on behalf of a client.

   I would have the trial court apply these principles in determining whether the communications between DuPont and Kaplan are in fact protected by either the attorney-client privilege or work product doctrine. I believe that this is an inquiry for the trial court to make in the first instance. In this regard, I agree with the observation of the Court of Appeals of New York that:

   Whether a particular document is or is not protected is[***60] necessarily a fact-specific determination, most often requiring in camera review.
 
Spectrum Systems Int'l, 581 N.E.2d at 1060 (internal citation omitted); see Couser v. State, 282 Md. 125, 136, 383 A.2d 389, 395 (1978) (noting that whether the work product doctrine protects data included within prosecutor's jury dossier would seem to depend upon the nature and substance of the information), cert. denied,  439 U.S. 852, 99 S. Ct. 158, 58 L. Ed. 2d 156 (1978). In Upjohn Co. v. United States, 449 U.S. 383, 397-98, 101 S. Ct. 677, 686, 66 L. Ed. 2d 584 (1981), the United States Supreme Court emphasized the importance of a "case-by-case" determination of evidentiary privilege. Other courts similarly have recognized the importance of an individualized assessment of the contents of a relevant document in response to a colorable claim of privilege.  In re Allen, 106 F.3d 582, 608 (4th Cir. 1997), cert. denied sub nom.  McGraw v. Better Gov't Bureau, Inc.,     U.S.    , 118 S. Ct. 689, 139 L. Ed. 2d 635 (1998); In re Sealed Case, 308 U.S. App. D.C. 69, 29 F.3d 715, 718 (D.C. Cir. 1994); United States v. White, 970 F.2d 328, 334-35 (7th Cir. 1992); Payton v. New Jersey [***61]  Turnpike Auth., 148 N.J. 524, 691 A.2d 321, 335-36 (N.J. 1997); State ex rel. United Hosp. v. Bedell, 199 W. Va. 316, 484 S.E.2d [*434]199, 211 (W.Va. 1997); Bartlett v. John Hancock Mut. Life Ins. Co., 538 A.2d 997, 999 (R.I. 1988); accord J. LYNCH, JR. & R. BOURNE, MODERN MARYLAND CIVIL PROCEDURE § 7.3(b), at 507 (1993); 8 C. WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 2035, at 484-86 (2nd ed. 1994).

   Had the trial court performed an in camera review of the documents as requested by DuPont, the court may well have found that some or all of the documents were privileged. The majority states that "it is clear from Ms. Herr's deposition that DuPont's own legal department viewed the Forma-Pack collection matter as a business approach, rather than a legal approach taken in anticipation of litigation," and concludes that [**1148] "any documents generated between Kaplan and DuPont would be materials created in the ordinary course of business and not in anticipation of litigation." Maj. op. at 15. The majority views Ms. Herr's deposition in isolation and ignores her affidavit. The affidavit of Ms. Herr, along with that of DuPont legal assistant Glenn Wiltsee, established that the[***62] communications with Kaplan & Kaplan were made with the expectation of confidentiality and in anticipation of litigation. Ms. Herr averred, inter alia, in her affidavit:

   4. Once an account is sent to the legal department for collection, it is presumed that litigation may be necessary to collect the debt.

    * * * * *

   8. At all times in dealing with collection agencies such as Kaplan & Kaplan, I expect that all communications between myself or anyone else at Dupont's legal department and the collection agency are confidential since the collection agency assists the legal department in the collection of the account and, if necessary, facilitates the institution of a lawsuit.

   9. I believed that all communications which I had with Kaplan & Kaplan concerning the Forma-Pack account were confidential.
 
The affidavit of Glenn Wiltsee was essentially the same as the affidavit of Susan Herr. In addition, the privilege log reveals [*435] that numerous communications were made either to facilitate the filing of the litigation in California or were made after litigation had begun.

   In sum, I would hold that the trial court erred in concluding that materials transmitted between a debt collection[***63] agent and an attorney or a client can never be protected by the attorney-client privilege and work product doctrine. I emphasize that I do not advocate a holding that any of the documents are in fact protected. I would remand the matter to the Circuit Court for Anne Arundel County for the purpose of conducting an in camera inspection of the documents that DuPont claims are protected. n3 See United Coal Cos. v. Powell Constr. Co., 839 F.2d 958 (3rd Cir. 1988) (remanding for an in camera inspection of disputed documents after trial court applied wrong legal standard to claims of privilege).

n3 An in camera inspection is not required of every document in every case in which a colorable claim of privilege has been raised. Ordinarily, such decisions are within the sound discretion of the trial court. Whereas here, however, when a party has established a prima facie claim of privilege, based in part on a sufficiently detailed privilege log, and the materials for which the claims of privilege are made are relatively few in number, an in camera inspection by the trial court would not be unduly burdensome. As reflected in the privilege log reproduced in the Appendix, DuPont's claims of privilege extended only to sixteen documents, generally one or two pages in length.

[***64]

   Finally, I would note that an individual document may contain both privileged and non-privileged subject matter. Under those circumstances, the trial court should order redaction of the privileged information, and permit discovery of the remaining non-privileged contents of the document.  United States v. (Under Seal), 748 F.2d at 878.

   Accordingly, I respectfully dissent. Judge Eldridge and Judge Wilner have authorized me to state that they join in the views expressed herein. 

CLARENCE W. BLOUNT et al. v. FRANK D. BOSTON, JR. 
No. 90, September Term, 1998
 
COURT OF APPEALS OF MARYLAND
 
351 Md. 360; 718 A.2d 1111; 1998 Md. LEXIS 808

 October  6, 1998, Filed

   PRIOR HISTORY: [***1]

   Appeal from the Circuit Court for  Anne Arundel  County pursuant to certiorari to the Court of Special Appeals. Michael E. Loney, JUDGE.

DISPOSITION: The plaintiff in this case failed to prove that Senator Blount intended to abandon his domicile in Baltimore City and establish a new domicile in Baltimore County.

CORE TERMS:  domicile, condominium, legislative district, apartment, domiciled, place of abode, voting, intend, mail, abandoned, night, spend, abandon, domiciliary, abode, voter registration, resident, second floor, election, license, sleep, furniture, lived, candidate, driver's, reside, re-election, registration, continuously, residency

COUNSEL: ARGUED BY George L. Russell, Jr. (George A. Nilson, Anthony P. Ashton, Piper & Marbury on brief) of Baltimore, MD., FOR APPELLANTS.
 
ARGUED BY Steven A. Allen, Una M. Perez (Hodes, Ulman, Pessin & Katz, P.A. on brief) of Towson, MD., FOR APPELLEE.

JUDGES: ARGUED BEFORE Bell, C.J.; Eldridge, Rodowsky, Raker, Wilner, Cathell, and Karwacki, Robert L. (retired, specially assigned), JJ. Opinion by Eldridge, J.

OPINIONBY: Eldridge

OPINION: [**1113] [*363]
 
Opinion by Eldridge, J.

   Filed: October 6, 1998
 
The legal issue in this case is whether a long-time member of the Maryland General Assembly, who is a candidate for re-election, has abandoned his domicile in the Baltimore City legislative district which he has been representing and established a new domicile in Baltimore County.

   The defendant-appellant, Senator Clarence W. Blount, was a candidate for the Democratic Party nomination at the primary [*364] election held on September 15, 1998, and is a candidate for re-election at the November 1998 general election, to the Maryland Senate, representing the 41st legislative district located entirely within Baltimore City. The plaintiff-appellee, Frank D. Boston, Jr., was running against Senator Blount in the primary election for the nomination of the Democratic Party for State Senator from the 41st district. The plaintiff-appellee[***2] brought this action in the Circuit Court for Anne Arundel County to have Senator Blount's name stricken from the primary election ballot, contending that Senator Blount did not meet the Constitutional residency requirements to represent the 41st legislative district. After a trial, the circuit court on August 26, 1998, held that Senator Blount was not eligible to serve as a Senator representing the 41st legislative district, and the court ordered that his name be removed from the primary election ballot. An immediate appeal was taken, and this Court, on August 27, 1998, issued a writ of certiorari. After oral argument before this Court on September 1, 1998, we issued an order reversing the judgment of the circuit court. We now state our reasons for that order.
 
I.

   Before recounting the particular facts of this case, it would be helpful to set forth the well-settled principles of Maryland law which govern cases of this nature.

   Article III, § 9, of the Maryland Constitution requires that, to be eligible to serve as a member of the General Assembly, a person must have "resided" in the legislative district which he or she has been chosen to represent for at least six months prior[***3] to the election or, if the district has not been established for six months, for as long as it has been established. n1 As [*365]recently pointed out in Roberts v. Lakin, 340 Md. 147, 153, 665 A.2d 1024, 1026 (1995), "this Court has expressly held that the word 'resided' in Article III, § 9, means 'domiciled.'"

n1 Article III, § 9, of the Maryland Constitution states in its entirety as follows:
 
"Section 9. Age, citizenship and residence requirements for Senators and Delegates.

   "A person is eligible to serve as a Senator or Delegate, who on the date of his election, (1) is a citizen of the State of Maryland, (2) has resided therein for at least one year next preceding that date, and (3) if the district which he has been chosen to represent has been established for at least six months prior to the date of his election, has resided in that district for six months next preceding that date.

   "If the district which the person has been chosen to represent has been established less than six months prior to the date of his election, then in addition to (1) and (2) above, he shall have resided in the district for as long as it has been established.

   "A person is eligible to serve as a Senator, if he has attained the age of twenty-five years, or as a Delegate, if he has attained the age of twenty-one years, on the date of his election. (1974, ch. 880, ratified Nov. 5, 1974; 1977, ch. 681, ratified Nov. 7, 1978.)"

[***4]

   The Court in Bainum v. Kalen, 272 Md. 490, 496, 325 A.2d 392, 395-396 (1974), addressed and rejected an argument that the term "resided" in Article III, § 9, of the [**1114] Constitution referred to actual physical abode instead of domicile, saying:

   "Preliminarily, a question has been raised in this case concerning the meaning of the term 'resided' in Article III, Section 9, of the Maryland Constitution. It is suggested that the word 'reside' or its equivalent, as used in constitutional or statutory provisions setting forth qualifications for political office or voting, means actual physical presence or abode rather than domicile. Some language in the opinion in Shaeffer v. Gilbert, 73 Md. 66, 70-71, 20 A. 434 (1890), arguably supports the distinction. However, to the extent that it does, the language from the Shaeffer case was specifically disapproved by this Court in Gallagher v. Bd. of Elections, 219 Md. 192, 206, 148 A.2d 390 (1959).

   "From Thomas v. Warner, 83 Md. 14, 20, 34 A. 830 (1896), and Howard v. Skinner, 87 Md. 556, 559, 40 A. 379 (1898), until the present, this Court has consistently held that the words 'reside' or 'resident' in a constitutional provision[***5] or statute delineating rights, duties, obligations, privileges, etc., would be construed to mean 'domicile' unless a contrary intent be shown. Thus, our predecessors stated in Howard v. Skinner, supra, 87 Md. at 559: 'Residence, as contemplated by the framers of our Constitution, for political or voting purposes, means a place of fixed present domicile.'" [*366]
 
See also, e.g., Garcia v. Angulo, 335 Md. 475, 477, 644 A.2d 498, 499 (1994) ("'resident of this State' in the [statute] . . . means a domiciliary of Maryland"); Wamsley v. Wamsley, 333 Md. 454, 458, 635 A.2d 1322, 1324 (1994) ("We have held consistently that 'the words "reside" or "resident" in a constitutional provision or statute delineating rights, duties, obligations, privileges, etc. would be construed to mean "domicile" unless a contrary intent is shown'"); Dorf v. Skolnik, 280 Md. 101, 116, 371 A.2d 1094, 1102 (1977) ("the words 'reside' or 'resident' [with regard to members of a party central committee] mean 'domicile'"); Hawks v. Gottschall, 241 Md. 147, 149, 215 A.2d 745, 746 (1966) ("'a resident of this State' as used in the [statute] . . . means a person who has acquired a domiciliary[***6] status in the State of Maryland"); Maddy v. Jones, 230 Md. 172, 178-179, 186 A.2d 482, 485 (1962) ("the Maryland decisions have given the term 'residence', for political or voting purposes, the legal significance of 'domicile'"); Gallagher v. Bd. of Elections, 219 Md. 192, 207, 148 A.2d 390, 398-399 (1959) (with respect to the requirement in the Baltimore City Charter that a candidate for Mayor be a resident of Baltimore City for ten years preceding the election, the Court concluded "that the framers of the Charter intended the residence required . . . to be the equivalent of a 'present, fixed domicile'" and that it does not mean "an actual and physical residence"); Rasin v. Leaverton, 181 Md. 91, 93, 28 A.2d 612, 613 (1942) ("The requirement in the Constitution of residence for political or voting purposes is one of a place of fixed, present domicile"); Wagner v. Scurlock, 166 Md. 284, 291, 170 A. 539, 542 (1934) (residence in statute means domicile); Howard v. Skinner, 87 Md. 556, 559, 40 A. 379, 380 (1898) ("Residence, as contemplated by the framers of our Constitution, for political or voting purposes, means a place of fixed present domicile").

   Consequently, [***7] any inquiry into whether a member of or candidate for the Maryland General Assembly meets the "residency" requirements set forth in Article III, § 9, must focus upon the member's or candidate's domicile. [*367]

   The concept of domicile is somewhat elusive, and there is no single definition of the term which will mechanically determine each person's domicile once the pertinent facts are known. One's domicile "has been defined as the place 'with which he has a settled connection for legal purposes,'" Bainum v. Kalen, supra, 272 Md. at 497, 325 A.2d at 396, quoting Shenton v. Abbott, 178 Md. 526, 530, 15 A.2d 906, 908 (1940). It has also been defined, in the same judicial opinions, "as that place where a man [or woman] has his [or her] true, fixed, permanent home, habitation and principal establishment, without any present intention of removing therefrom, and to which place he [or she] has, whenever . . . absent, the intention of returning." Shenton v. Abbot, supra, 178 Md. at 530, 15 A.2d at 908.
 
[**1115] In addition, domicile has been defined as the place that is "the 'centre of [a person's] affairs,' and the place where the business of his life [is] transacted." Thomas [***8]  v. Warner, 83 Md. 14, 20, 34 A. 830, 831 (1896). A person's domicile is ordinarily "where he and his family habitually dwell," ibid. One claiming a particular place as his domicile "identifies himself and all his interests" with the place and there "exercises the rights and performs the duties of a citizen." Ibid.

   Although a person may have several places of abode or dwelling, he or she "'can have only one domicile at a time.'" Bainum, 272 Md. at 497, 325 A.2d at 396, quoting Shenton v. Abbott, supra, 178 Md. at 530, 15 A.2d at 908. Furthermore, under Maryland law, domicile is a unitary concept; the "meaning of domicile and the basic principles for determining domicile have been the same in this State regardless of the context in which the issue of domicile arose." Toll v. Moreno, 284 Md. 425, 438, 397 A.2d 1009, 1015 (1979).

   For the substantial majority of Marylanders, there is little or no question about their domicile. Typically, such person has only one place of abode which is designated as his or her residence for virtually all purposes, such as voting, income tax returns, driver's license, motor vehicle registration, school attendance, receipt of mail, banking, [***9] contracts and legal documents, [*368] the keeping of personal belongings, membership in organizations, etc. That place clearly constitutes his or her domicile. The difficult and close cases arise with respect to those persons who have more than one place of abode or who have other significant contacts with more than one place.

    This Court has held on numerous occasions that the "controlling factor in determining a person's domicile is his intent. One's domicile, generally, is that place where he intends it to be." Bainum, 272 Md. at 497, 325 A.2d at 396. See, e.g., Garcia v. Angulo, supra, 335 Md. at 487, 644 A.2d at 504; Comptroller v. Haskin, 298 Md. 681, 691, 472 A.2d 70, 75 (1984); Toll v. Moreno, supra, 284 Md. at 443, 397 A.2d at 1018; Dorf v. Skolnik, supra, 280 Md. at 116-117, 371 A.2d at 1102; Gallagher v. Bd. of Elections, supra, 219 Md. at 208, 148 A.2d at 399; Wagner v. Scurlock, supra, 166 Md. at 292, 170 A. at 542 ("practically all of the decisions say intention is the controlling factor").
 
A person's statements of his or her intent as to domicile are admissible and should be considered.  Comptroller v. Haskin, supra,  298 Md. at 693, 472 [***10]A.2d at 76; Gallagher v. Bd. of Elections, supra, 219 Md. at 198, 148 A.2d at 393; Wagner v. Scurlock, supra, 166 Md. at 290-292, 170 A. at 541-542; Harrison v. Harrison, 117 Md. 607, 614-616, 84 A. 57, 59-60 (1912). Nevertheless, as the cases repeatedly point out, "that intent may . . . be more satisfactorily shown by the acts of the individual, rather than by his words." Harrison v. Harrison, supra, 117 Md. at 614, 84 A. at 59. Intent "is best shown by objective factors," Comptroller v. Haskin, supra, 298 Md. at 691, 472 A.2d at 75. See also, e.g., Garcia v. Angulo, supra, 335 Md. at 487, 644 A.2d at 504; Wamsley v. Wamsley, supra, 333 Md. at 459, 461, 635 A.2d at 1324-1325; Toll v. Moreno, supra, 284 Md. at 442, 397 A.2d at 1017; Dorf v. Skolnik, supra, 280 Md. at 117, 371 A.2d at 1102; Bainum, 272 Md. at 497, 325 A.2d at 396; Wagner v. Scurlock, supra, 166 Md. at 292, 170 A. at 542.

   The two most significant objective factors evidencing a person's intent regarding domicile are where the person [*369] lives and where he or she votes or is registered to vote.  Bainum, 272 Md. at 498, 325 A.2d at 397 ("the two most important elements in determining[***11] domicile are where a person actually lives and where he votes"). Our cases have characterized the place of voting as "'the highest evidence of domicile,'" Wagner v. Scurlock, supra, 166 Md. at 292, 170 A. at 542. See Roberts v. Lakin, supra, 340 Md. at 154, 665 A.2d at 1027 ("'Evidence that a person registered or voted is . . . ordinarily persuasive when the question of domicile is at issue,'" quoting Comptroller v. Lenderking, supra, 268 Md. 613 at 619, 303 A.2d 402 at 405). Actual residence in a place, coupled with voter registration in that place, "clearly creates a presumption that [the person] was domiciled" there.  Roberts v. Lakin, supra, 340 Md. at 155, 665 A.2d at 1028. See Bainum, 272 Md. at 498-499, 325 A.2d at 397 ("Where the evidence relating to voting and [**1116]the evidence concerning where a person actually lives both clearly point to the same jurisdiction, it is likely that such place will be deemed to constitute the individual's domicile"); Comptroller v. Lenderking, 268 Md. 613, 619, 303 A.2d 402, 405 (1973) ("The act of registering [to vote], taken together with the fact that Mr. Lenderking lived . . . in Maryland . . ., gives rise to a rebuttable presumption[***12] that he was domiciled in Maryland").

   Although actual residence and voting have been considered the most important objective circumstances indicating domicile, numerous other factors are also pertinent to show a person's intent. As this Court explained in the Bainum case, 272 Md. at 499, 325 A.2d at 397, where actual residence and/or place of voting "are not so clear, or where there are special circumstances explaining a particular place of abode or place of voting, this Court will look to and weigh a myriad of other factors in deciding a person's domicile. These include such things as: the paying of taxes and statements on tax returns; the ownership of property; where the person's children attend school; the address at which one receives mail; statements as to residency contained in contracts or other documents; statements on licenses or governmental documents; where [*370] furniture and other personal belongings are kept; which jurisdiction's banks are utilized; membership in professional, fraternal, religious or social organizations; where one's regular physicians and dentists are located; where one maintains charge accounts; and any other facts revealing contact with one or the other[***13] jurisdiction. See Gallagher v. Bd. of Elections, supra, 219 Md. at 196-198."

   Although, as pointed out earlier, domicile is a unitary concept and the same legal principles apply regardless of the context, Toll v. Moreno, supra, nonetheless the importance or weight to be given some factors or contacts will vary depending upon the circumstances. Thus, where the issue is which of two areas constitutes a person's domicile, and the areas are relatively far apart, factors such as which area's banks, stores, professional services, schools, organizations, churches, etc. are utilized may be quite important to show the individual's intent. Where the two areas in dispute are relatively close to each other, however, which area's banks, stores, professional services, etc. are utilized has little probative value in determining domiciliary intent. People today regularly travel quite a few miles to the banks, stores, shopping centers, and professional offices of their choice. Nevertheless, even where the dispute concerns two dwellings close to each other, while the banks, stores, etc. that are utilized may have little significance, which of the two addresses is listed with the banks, stores, [***14] etc. may be of some significance.

   Moreover, "this Court has never deemed any single circumstance conclusive," Bainum, 272 Md. at 498, 325 A.2d at 397, including place of voting or abode. See Toll v. Moreno, supra, 284 Md. at 443-444, 397 A.2d at 1018 ("no one circumstance will render a person incapable of establishing a . . . domicile [in a particular place]. Instead, all of the factors relating to the different jurisdictions in question must be examined and weighed"). There have been cases holding that persons were domiciled in places in which they neither actually lived nor voted during the relevant periods. See Gallagher v. Bd. of Elections, supra, 219 Md. at 196-199, 148 A.2d at 392-394; Howard v. Skinner, supra, 87 Md. 556, 40 A. 379; Jones v. [*371] Skinner, 87 Md. 560, 40 A. 381 (1898). Numerous other cases have held that persons were domiciled in particular jurisdictions even though they did not actually live in those jurisdictions during the relevant time periods. See, e.g., Wamsley v. Wamsley, supra, 333 Md. at 463-464, 635 A.2d at 1326-1327; Comptroller v. Lenderking, supra, 268 Md. at 614-615, 620, 303 A.2d at 403, 406; Hawks v. Gottschall, supra,[***15] 241 Md. at 149- 151, 215 A.2d at 746-748; Walsh, Administrator v. Crouse, 232 Md. 386, 194 A.2d 107 (1963); Maddy v. Jones, supra, 230 Md. 172, 186 A.2d 482, Hall v. Morris, 213 Md. 396, 404-406, 132 A.2d 113, 117-119 (1957); Walker v. Walker, 125 Md. 649, 94 A. 346 (1915).

   When a person had clearly established his or her domicile in a particular [**1117]geographical area, and the issue before the Court is whether that person has abandoned such domicile and acquired a new one, additional legal principles become pertinent. Thus, once a person's place of domicile is determined, there is a presumption that it continues, and the "person retains his domicile there unless the evidence affirmatively shows an abandonment of that domicile" and the acquisition of "a new one," Bainum, 272 Md. at 498, 325 A.2d at 396- 397. See, e.g., Roberts v. Lakin, supra, 340 Md. at 154, 665 A.2d at 1027; Wamsley v. Wamsley, supra, 333 Md. at 461, 635 A.2d at 1325; Dorf v. Skolnik, supra, 280 Md. at 117, 371 A.2d at 1102; Hawks v. Gottschall, supra, 241 Md. at 152, 215 A.2d at 748; Turner v. Crosby, 85 Md. 178, 180, 36 A. 760, 760-761 (1897); Thomas v. Warner, supra, 83[***16] Md. at 19-20, 34 A. at 831.

   Even when an individual leaves the area in which he had established a domicile, that area remains his domicile until a new one is clearly established. Comptroller v. Lenderking, supra, 268 Md. at 620, 303 A.2d at 406 ("When he left Maryland, even with the intention of not returning, Maryland remained his domicile until he acquired a new one"); Shenton v. Abbott, supra, 178 Md. at 530, 15 A.2d at 908 ("Even though a person may be absent from his domicile for many years, . . . [*372] nevertheless he retains his domicile if he does not acquire a domicile elsewhere").

   In order to effect a change of domicile, "'there must be an actual removal to another habitation, coupled with an intention,'" Bainum, 272 Md. at 498, 325 A.2d at 397, quoting Shenton v. Abbott, supra, 178 Md. at 530, 15 A.2d at 908. Or, as this Court explained on an earlier occasion, "the mere intention to acquire a new domicil without the fact of an actual removal avails nothing, neither does the fact of a removal without the intention." Ringgold v. Barley, 5 Md. 186, 193 (1854).

   There are two aspects of the intent element which are pre-requisites for a change of domicile. [***17] 
 
First, the person must intend to abandon his or her former domicile. "When one takes up a new residence, in order to avail himself of the rights which such change of domicile confers, it must be not so much with the intention of there remaining, but of the abandonment of his former domicile," Wagner v. Scurlock, supra, 166 Md. at 292-293, 170 A. at 542. See also, e.g., Wamsley v. Wamsley, supra, 333 Md. at 461, 635 A.2d at 1325 (an "individual's domicile will continue . . . unless the facts of a given case establish an intent to abandon that domicile"); Gallagher v. Bd. of Elections, supra, 219 Md. at 208, 148 A.2d at 399 ("As Governor McKeldin did not intend to abandon his domicile in Baltimore City while living as governor in Annapolis, his domicile remained . . . in the City of Baltimore"); McLane v. Hobbs, 74 Md. 166, 171, 21 A. 708, 709 (1891) (to change domicile from one county to another, one "must remove from one county to another, with the bona fide intention of abandoning his former place" of domicile).

   Second, one must intend that the new place of habitation be his or her domicile. Comptroller v. Haskin, supra, 298 Md. at 692, 472 A.2d[***18] at 76 (a person must "intend to establish a new domicile in the place of his new abode"); Walsh, Administrator v. Crouse, supra, 232 Md. at 388, 194 A.2d at 108 (facts must "show an intention to abandon a domicile and acquire a new one"); Shenton v. Abbott, supra, 178 Md. at 530, 15 A.2d [*373] at 908 (change of habitation must be "coupled with an intention of remaining there permanently or at least for an unlimited time").

   Consequently, even when a person does not intend to be domiciled any longer in that place which has been the person's domicile, such place continues to be his or her domicile until the person demonstrates the requisite intent of establishing a new domicile in a different area.  Comptroller v. Lenderking, supra, 268 Md. at 620, 303 A.2d at 406.
 
II.

   We shall now turn to the facts of the case relevant to Senator Blount's domicile. In 1966 Senator Blount and Mrs. Blount were married. The couple moved into the second floor apartment of 3410 Copley Road, in Baltimore [**1118] City, which is now within the 41st legislative district. The house at 3410 Copley Road was owned by Mrs. Blount's parents. The second floor apartment contains three rooms plus a kitchen and a[***19] bathroom. In 1970, while living at 3410 Copley Road, Senator Blount was elected to the Maryland Senate. n2 Senator Blount has continuously represented the same area in the Senate since the time he was first elected in 1970.

n2 At the time of Senator Blount's election, 3410 Copley Road was located in the 5th district, but the 5th district, due to later redistricting, became the 41st legislative district.

   Senator and Mrs. Blount lived in the second floor apartment at 3410 Copley Road until February 1973 when they purchased a house at 3600 Hillsdale Road in Baltimore City. The house at 3600 Hillsdale Road was also located in what is now the 41st legislative district. Sometime in the 1970's Senator and Mrs. Blount acquired an interest in 3410 Copley Road as a result of the death of Mrs. Blount's parents.

   In March 1985 the Blounts also acquired an interest in a house at 237 Mountain Laurel Lane in Annapolis. Senator and Mrs. Blount acquired this property from Mrs. Blount's aunt. Senator Blount testified that he[***20] never considered the [*374] Annapolis property to be a family home; instead it was a leisure home. Senator and Mrs. Blount would spend some weekends and occasional weekdays at the Annapolis house. During the 28 years that Senator Blount has been a member of the Maryland General Assembly, he has spent many of his nights in Annapolis while the General Assembly was in session, but he has usually stayed in a hotel and not at the house at 237 Mountain Laurel Lane.

   The house in Annapolis was, according to Senator Blount, very rustic. In the late 1980's, the Blounts decided that they wanted to put a new house on the Annapolis property. On June 3, 1987, Senator and Mrs. Blount sold the house at 3410 Copley Road, Baltimore City, to a relative of Mrs. Blount in order to provide funds to have a new house built in Annapolis. On June 25, 1987, they sold the house at 3600 Hillsdale Road, also to raise money for the building of a new house on the Annapolis property. The Senator and Mrs. Blount retained a leasehold interest in the second floor apartment at 3410 Copley Road. As the apartment was much smaller than the house on Hillsdale Road, the Senator and his wife put much of their furniture in storage. [***21] Senator and Mrs. Blount have continuously rented the second floor apartment at 3410 Copley Road since the sale of the Copley Road and Hillsdale Road properties until the present. It is undisputed that Senator and Mrs. Blount lived at the 3410 Copley Road apartment after the sale of their Baltimore City property. The trial court found that "canceled checks indicate that rent checks have regularly been sent to the landlord by Senator Blount for many years and also depict the Copley Road address."

   In the early 1990's Senator Blount had bypass heart surgery. As a result, the Senator and Mrs. Blount became concerned about their ability to take care of their leisure property in Annapolis. The property consisted of a house on approximately 5 acres of land. Senator Blount and his wife decided that, in lieu of the Annapolis property, they needed a smaller place which the two of them would be able to take care of, and Mrs. Blount began looking for such a place. In 1995 Senator Blount and his wife put the Annapolis property on the [*375] market. In March 1995 Senator Blount and his wife purchased a condominium at 9107 Ruth Elder Lane, in the Pikesville area of Baltimore County. The Senator testified[***22] that his wife looked at many different properties and finally settled on the condominium in Pikesville. This condominium is in the 11th legislative district.

   According to Senator Blount, the Pikesville condominium was purchased as a retirement home. The furniture that was in the Annapolis house, and the furniture that had been placed in storage when the Senator and his wife moved back into the 3410 Copley Road apartment, was moved into the condominium. About this time Senator Blount's stepson also moved into the Copley Road apartment. The Annapolis property was finally sold in April 1997.

   [**1119] In early 1998, Senator Blount was undecided about whether he wanted to retire or run for re-election. In June 1998 he decided to run for re-election. As set forth in the trial court's findings, Senator Blount stated "that the Copley Road apartment is his domicile and . . . that he has not abandoned it. He explains that the Ruth Elder Lane condominium was purchased with the intention of being his home and domicile after his retirement. Although 77 years of age, he has no present retirement plans."
 
When Senator Blount is not staying overnight in Annapolis and is not away on business or vacation, [***23] he spends, based on his testimony and the trial court's findings, "90 percent" of his nights at the Pikesville condominium and only occasional nights each month at the Copley Road apartment. According to the trial court's findings, one room at the Copley Road apartment is occupied by Senator Blount's stepson, and another room is used as Senator Blount's bedroom which "contains a futon sofa bed, a TV and other modest furnishings. The third room has been used as a den, and it contains a desk, TV and other furniture." The kitchen in the apartment "has a small table with two chairs, a stove and a refrigerator. There is no washer or dryer and no linens." On the other hand, the Pikesville condominium, in the words of the court below, [*376] "consists of a fully equipped, modern townhouse condominium with garage. It contains a fireplace and is fully furnished with furniture which appears to be new."

   The trial court found that most of Senator Blount's clothing is kept at the Pikesville condominium and that a "very few items of clothing [are kept] at the Copley Road apartment." The court pointed out that the telephone service at the Copley Road apartment was terminated in June 1998 by Senator[***24] Blount because, as the Senator testified, his stepson "incurred very high telephone bills on that account. . . . Senator Blount uses his mobile phone when he is there. On the other hand, telephone service is maintained at the Ruth Elder Lane condominium where there are at least two stationary telephones present."

   The trial court also found that Senator Blount has had surgeries during the past three years, including a spinal fusion operation in 1997, and has recuperated at the Pikesville condominium. A family Christmas gathering in 1997 was at the Pikesville condominium.

   The daily newspaper is delivered to the Pikesville condominium, and mail order or similar purchases are delivered there. On the other hand, as the trial court found, "the majority of Senator Blount's mail is delivered to the Copley Road address. . . . Many magazines are delivered to the Copley Road address and some are left there until the Senator 'gets around to reading them.' The mail is picked up [from Copley Road] by the Senator or Mrs. Blount on a daily or near daily basis and then taken or delivered to the Senator's office or the [Pikesville] condominium." The court further found that "Mrs. Blount has planted [***25] some plants and flowers in front of the [Copley Road] premises and Senator Blount has watered them on occasion." Senator and Mrs. Blount pay for lawn care at 3410 Copley Road.

   As to Mrs. Blount, the trial court found that "she lives at Ruth Elder Lane [in Pikesville] and most of her clothing is kept there." Mrs. Blount keeps her jewelry at the condominium. There is homeowner's insurance on the premises and [*377]contents of the Pikesville condominium, including enhanced coverage for jewelry, silver, furs and other valuables. Mrs. Blount spends most of her time at the Pikesville condominium. The trial court found that "Mrs. Blount has entertained at Ruth Elder Lane [Pikesville]. There is no evidence that the Blounts have entertained at Copley Road." A joint checking account, primarily used by Mrs. Blount, listed the Copley Road address until March 1998 when Mrs. Blount submitted to the bank a change of address form listing the Pikesville address.

   Senator Blount has been a registered voter in the area that is now the 41st legislative district continuously since 1966, and he has regularly voted in that district. His initial 1966 voter registration listed his residence as [**1120]3410 Copley[***26] Road, n3 and his present voter registration lists his residence at 3410 Copley Road. At each time he registered to vote, Senator Blount stated under oath that his residency (i.e., domicile) was in the 41st district. See Code (1957, 1997 Repl. Vol.), Art. 33, § 3-6.

n3 In this connection, see Blount v. Board of Elections, 247 Md. 342, 344, 230 A.2d 639, 641 (1967).

   Senator Blount's state income tax returns, including the most recent, list his address as 3410 Copley Road, Baltimore City. Baltimore City has continuously been listed on the returns as the subdivision in which Senator Blount resides, and, therefore, the local portion of the income tax goes to Baltimore City. The income tax returns all reflect that they were filed under penalties of perjury.

    In addition, the statutorily required annual statements of financial disclosure filed by Senator Blount listed his residence as 3410 Copley Road, Baltimore City. These statements were also filed under oath. See Code (1984, 1995 Repl. Vol., 1997[***27] Supp.), § 15-602(2) of the State Government Article.

   Senator Blount owns two motor vehicles, jointly with Mrs. Blount, and the motor vehicle registration reflects the Copley Road address. Senator Blount's driver's license also indicates that his address is 3410 Copley Road. The court below found [*378] that, "in addition, the Copley Road address is listed on numerous government documents . . . ." The automobile insurance policies on the two motor vehicles, however, indicate that they are kept at the Pikesville address.

   In addition to the checking account used primarily by Mrs. Blount, which now reflects the Pikesville address, the Blounts have joint bank accounts at Harbor Bank and NationsBank. The address listed on these accounts is 3410 Copley Road. With regard to the address listed on other types of accounts, the trial court found that Senator Blount "has made a conscious effort to list [the Copley Road address] on all his accounts and documents."

   Senator Blount's legislative office is in Baltimore City and, as the circuit court found, "is actually located within District 42, one-half block from the boundary line of District 41. There are adequate explanations for this and the location[***28] has been approved by the General Assembly." While Senator Blount meets with some constituents in this office, "he explained that he often prefers to meet in the more private and intimate setting at the Copley Road apartment." The circuit court further found that Senator Blount "is very active socially and politically within the 41st Legislative District, but not in Baltimore County. At the Ruth Elder Lane address he knows very few people. When introduced to strangers, he always states that he is from Baltimore City. During the session of the General Assembly, he spends most of his nights in Annapolis. He often eats out and does not eat at home. He is frequently away from home very much because of his duties as an elected official and frequently does not arrive home until late at night."

   The circuit court concluded its findings of basic facts by stating that Senator Blount "spends 99.9 percent of his waking hours within Baltimore City and the 41st Legislative District attending to his legislative responsibilities."

   After setting forth the facts of the case as summarized above, the court below stated as follows: [*379]

   "The evidence in this case clearly indicates that Senator Blount lives [***29]in Pikesville. The Court finds that he spends more than 90 percent of his nights there and his use of the Ruth Elder Lane property demands the conclusion that it is his residence."
 
The court continued by saying that, unlike the use of the Annapolis property which the Blounts previously owned, "the use of the Ruth Elder Lane condominium has been significantly different. As indicated above, Senator Blount has, for all intents and purposes, chosen to sleep principally and on a full-time basis at the Ruth Elder Lane condominium."
 
   [**1121] The court, continuing to equate "use" of a dwelling with "sleep," indicated that Senator Blount's "use of the Copley Road Apartment has been minimal" because of the few nights spent there. With regard to Senator Blount's intent regarding the Copley Road apartment and the 41st district, the circuit court continued:
 
"He has continued to pay rent on the small apartment on Copley Road which he has used as a meeting place, a place to receive mail, and a place to occasionally sleep within the 41st Legislative District in order to intentionally demonstrate his desire to retain his domicile within the District. His efforts indicate an attempt to indicate[***30] domicile in the 41st Legislative District for political reasons." (Emphasis added).
 
The court concluded, however, that Senator Blount's "actions" show that he "has established his primary residence at the Ruth Elder Lane condominium" and show that "Senator Blount abandoned his prior domicile at Copley Road in favor of a new domicile on Ruth Elder Lane."

   III.

   Although this case may be somewhat close, in our view the circuit court erred in deciding that Senator Blount had abandoned his prior domicile in Baltimore City and established a new domicile in the Pikesville area of Baltimore [*380]County. The court's decision cannot be squared with this Court's prior opinions concerning domicile. Moreover, the court below overlooked several well-settled principles governing determinations of domicile.

   The circuit court seemed to conclude that Senator Blount intended to retain his domicile in the 41st legislative district but that, because he has "chosen to sleep principally" at the Pikesville condominium, his domicile is not in the 41st legislative district in Baltimore City but is in the Pikesville area of Baltimore County. This reasoning is inconsistent with the principle, set forth in virtually[***31] all of this Court's prior opinions regarding domicile, that the "controlling factor in determining a person's domicile is his intent." Bainum v. Kalen, supra, 272 Md. at 497, 325 A.2d at 396. While various objective factors or contacts are looked to in determining that intent, along with the person's testimony as to intent, the ultimate question is still one of intent. The objective factors or contacts do not themselves directly decide one's domicile; instead, they are indicative of a bona fide intent. The ultimate question in this case is not whether the condominium in Pikesville or the apartment in Baltimore City has recently been Senator Blount's primary sleeping place. Instead, the ultimate question is whether Senator Blount has a bona fide intent to remain domiciled in the 41st district.

   The court below also seemed to overlook the principle that no single factor or contact evidencing domiciliary intent is conclusive, and "no one" factor "will render a person incapable" of establishing a domicile in a particular place.  Toll v. Moreno, supra, 284 Md. at 443-444, 397 A.2d at 1018. The circuit court in the present case appeared to view one's primary place of abode during [***32]the relevant period as the single determinative factor. The court also seemed to equate one's primary place of abode with where he or she principally sleeps.

    As previously pointed out, however, many cases in this Court have held that persons were domiciled in particular areas even though they did not actually live in those areas [*381] during the critical time periods. For example, recently in Wamsley v. Wamsley, supra, 333 Md. at 463-464, 635 A.2d at 1326-1327, the evidence and the trial judge's findings showed that Richard Wamsley, a member of the armed services, intended to be domiciled in Maryland even though he had not actually lived in Maryland for several years. He paid Maryland state income taxes, maintained his driver's license and voter registration in Maryland, and listed Maryland as his home on his employment records. The trial judge, in holding that Wamsley was not domiciled in Maryland, stated that these various factors indicating intent were "insufficient to 'overcome[] the basic presumption that your domicile is where you live,'" 333 Md. at 463, 635 A.2d at 1326. This Court held that the trial judge expressed "a view of the law that is not correct." Ibid.

   [**1122] Furthermore, [***33] the court below seemed to give little or no effect to the principles applicable when the issue is whether a person has abandoned a clearly established domicile and acquired a new one. Senator Blount certainly was, for a very long time, domiciled in Baltimore City, in the area of the 41st legislative district. The trial court, therefore, should have recognized that there is a presumption that the Senator's Baltimore City domicile continued, and that there would be no change of domicile unless Senator Blount intended to abandon his 41st district domicile and intended to establish a new domicile in Baltimore County.

   In addition, the circuit court, while finding that Senator Blount took actions "to intentionally demonstrate his desire to retain his domicile in the [41st] District," apparently discounted this finding because, in the court's view, the Senator's intent and actions were "for political reasons." In this regard, the circuit court committed the same error which this Court found in Roberts v. Lakin, supra, 340 Md. at 155, 665 A.2d at 1027. In the Roberts case, the trial court had discounted Roberts's voter registration in a particular legislative district on the ground[***34] that it was "self-serving." In holding that the court erred, we stated (340 Md. at 155 n.5, 665 A.2d at 1028 n.5):[*382]

   "As earlier indicated, 'one's domicile, generally, is that place where he intends it to be.' Dorf v. Skolnik, 280 Md. 101, 116, 371 A.2d 1094, 1102 (1977); Bainum v. Kalen, 272 Md. 490, 497, 325 A.2d 392, 396 (1974). Under circumstances where one intends his domicile to be in a particular area, and takes the appropriate steps to evidence a domicile in that area, his motive for doing so is ordinarily not pertinent. One may intend to be domiciled in a particular area because of perceived tax advantages, because of the climate, because he wants to run for public office from that area, or for countless other 'self-serving' reasons. The fact that the motivation is 'self-serving' in no way undercuts the intent shown by various objective factors. Establishing or maintaining a domicile in a specific area in order to run for public office from that area frequently occurs; it is entirely legitimate."

   It is undisputed that, until the Pikesville retirement condominium was acquired in 1995, Senator Blount had been domiciled in Baltimore City continuously for over fifty years. [***35] He has been a registered voter in Baltimore City since 1952. n4 He moved into the dwelling at 3410 Copley Road in 1966. Immediately before the Pikesville condominium was acquired in 1995, Senator and Mrs. Blount's primary place of abode was the second floor apartment at 3410 Copley Road. After the Pikesville condominium was acquired, and until the present, Senator Blount has continued to maintain the second floor apartment at 3410 Copley Road as a place of abode. He sleeps there occasionally, meets persons there during the day on legislative business, receives his mail there, lists 3410 Copley Road as his address for all official purposes and on most accounts. While, as the trial court found, the apartment at 3410 Copley Road has not been Senator Blount's primary place of abode since the acquisition of the Pikesville condominium, it is not simply a "mail drop" as asserted by the plaintiff in this case. (Appellee's brief in this Court at 28).

n4 See Blount v. Board of Elections, supra, 247 Md. at 344, 230 A.2d at 639.

[*383] [***36]

   The only significant change in the circumstances indicating Senator Blount's domiciliary intent since 1995 has been the change in the Senator's primary place of abode. Moreover, in light of the Senator's legislative business and his busy schedule, his change in primary place of abode has largely been limited to where he primarily sleeps and where he recuperates from illness.

   Senator Blount unequivocally testified that he intends for Baltimore City to remain his domicile until he retires. He maintains a place of abode there. As found by the trial court, when he is not in Annapolis or outside of the State, he spends "99.9 percent of his waking hours within Baltimore City and the 41st Legislative District" and not in Baltimore County.

   In Gallagher v. Bd. of Elections, supra, 219 Md. 192, 148 A.2d 390, the Court held that former Governor McKeldin had not [**1123] abandoned his domicile in Baltimore City despite the fact that, for most of the relevant time period, he had no dwelling place in Baltimore City and did not vote there. In addition, he gave his residence as Annapolis on his state income tax returns; he opened a bank account in Annapolis; he changed his motor vehicle registration[***37] and driver's license to reflect an Annapolis residency, and he applied for and was granted non-resident membership in a Baltimore area club.  219 Md. at 197, 148 A.2d at 393. Nevertheless, among the factors deemed to be important in determining that he had not abandoned his Baltimore domicile and acquired an Annapolis domicile, was Governor McKeldin's testimony that he did not intend to abandon his domicile in Baltimore City and that, during the relevant period, " he had spent 80% of his 'waking time' in the City [of Baltimore]." 219 Md. at 198, 148 A.2d at 393.

   The Gallagher case, and a multitude of other cases, demonstrate that one's principal place of abode during the pertinent time period is not conclusive of one's domicile. As Gallagher held, a person's testimony concerning his or her intent, and where the person spends most of his or her time, are very important. [*384]

   Apart from the change in primary place of abode, every other significant circumstance evidencing Senator Blount's intent confirms that he did not intend to abandon his Baltimore City domicile and establish a new domicile in Baltimore County. Voter registration, voting, state income tax returns, financial[***38] disclosure statements, driver's license, motor vehicle registration, the address at which mail is received, listings on various accounts, etc., all objectively disclose Senator Blount's real intent not to abandon his Baltimore City domicile prior to retirement. See Rasin v. Leaverton, supra, 181 Md. at 94, 28 A.2d at 613 ("his registering and voting in Baltimore City . . . is . . . strongly persuasive and confirmatory [of domicile in Baltimore City], especially as the registrant must have taken an oath that he was in fact a resident. The oath is not a meaningless form").

   If the residency requirement for representing a particular legislative district in the General Assembly were that one must have his or her primary place of abode in that district, we would have affirmed the judgment of the court below. Under such a requirement, many prior cases in this Court would have been decided differently. The requirement, however, is that one must be domiciled in the district, and domicile is not synonymous with primary place of abode.

   On the other hand, we do not minimize the importance of one's primary place of abode as an objective factor indicating one's domiciliary intent. It is [***39]one of the two most important factors, the other being place of voting or voter registration. There is a rebuttable presumption that a person's place of abode is his domicile. See Harrison v. Harrison, supra, 117 Md. at 615, 84 A. at 59 ("The presumption of the law is that where a person actually lives is his domicil, though this is a rebuttable presumption").

   Nevertheless, where a person claims to be domiciled in an area, but the person's principle place of abode is not in that area during the relevant time period, and there are explanations for this which are not inconsistent with an intent to be domiciled in that area, the factor of one's primary [*385] dwelling place is of diminished importance in determining domicile. Roberts v. Lakin, supra, 340 Md. at 156, 665 A.2d at 1028 ("The brief period . . . during which Roberts spent most of his nights . . . [outside his previously established domicile] does not, under the circumstances, show an abandonment of domicile . . . . It was due to relationship problems with his girlfriend rather than a desire to" change domicile); Wamsley v. Wamsley, supra, 333 Md. at 461, 635 A.2d at 1325 ("The fact that members of the military are[***40] frequently moved about under military orders will more than explain why an individual occupies a place of abode beyond" the area claimed to be his or her domicile); Bainum, 272 Md. at 499, 325 A.2d at 397; Gallagher v. Bd. of Elections, supra, 219 Md. at 205, 148 A.2d at 397.

   In this case there are circumstances which, to some extent, explain why Senator Blount spends most nights and time recuperating from surgeries, as well as attends family gatherings, at the Pikesville condominium. [**1124] These circumstances are not inconsistent with his intent that he remain domiciled in Baltimore City until he retires. Although Mrs. Blount's domicile is not directly an issue in this case, and we make no decision about her domicile, it is certainly possible that she has abandoned her prior domicile in Baltimore City and has established a new domicile in the Pikesville area of Baltimore County. n5 At any rate, her only place of abode is [*386] now the Pikesville condominium. n6 It is certainly not unreasonable for Senator Blount to wish to spend a majority of his nights at the Pikesville condominium so that he can be with his wife, or to recuperate from surgeries at the Pikesville condominium so that[***41] his wife's assistance is readily available. His conduct in this regard is explained by his wife's decision to make the Pikesville condominium her sole place of abode. In light of this, Senator Blount's conduct is not inconsistent with his intent to remain a domiciliary of Baltimore City until he retires.

n5 Prior to 1972, the law of Maryland was that a married woman ordinarily had the domicile of her husband, and that her domiciliary intent was not pertinent. See, e.g., Miller v. Miller, 247 Md. 358, 365, 231 A.2d 27, 31 (1967) ("the general rule is that in the absence of a decree of separation or divorce the domicile of a wife is the same as that of the husband"); Hawks v. Gottschall, 241 Md. 147, 152, 215 A.2d 745, 748 (1966) (wife's intent regarding her domicile "has no bearing on her own domicile, or her husband's domicile of choice . . . because her domicile followed that of her husband"); Rumbel v. Schueler, 236 Md. 25, 27, 202 A.2d 368, 369 (1964) ("the legal domicile of a wife is that of her husband and he has the right to choose that domicile"); Bennett v. Bennett, 197 Md. 408, 412, 79 A.2d 513, 515 (1951) ("The doctrine is well established that the husband, being the head of the family and legally responsible for its support, has the right to choose and establish the domicile for himself and his wife"); Whiting v. Shipley, 127 Md. 113, 117, 96 A. 285, 286 (1915) ("The general rule is that in the absence of a decree of separation or divorce the legal domicile of a wife follows that of her husband").

   In 1972, Article 46 of the Maryland Declaration of Rights, sometimes referred to as the Equal Rights Amendment or E.R.A., was ratified and became part of the Maryland Constitution. It provides that "equality of rights under the law shall not be abridged or denied because of sex." It is obvious that the general rule concerning a married woman's domicile, set forth in the above cited cases, was overruled by Article 46. See, e.g., Giffin v. Crane, 351 Md. 133, 148, 716 A.2d 1029, 1037, 1998 Md. LEXIS 643, *21 (1998) ("the Amendment [Article 46] can only mean that sex is not, and can not be, a factor in the enjoyment or the determination of legal rights"); State v. Burning Tree Club, Inc., 315 Md. 254, 269, 554 A.2d 366, 374, cert. denied, 493 U.S. 816, 110 S. Ct. 66, 107 L. Ed. 2d 33 (1989) ("sex-based classifications [are] generally forbidden by the E.R.A."). Consequently, one spouse's domicile is not determinative of the other spouse's domicile, and each spouse may establish his or her domicile as he or she chooses.

[***42] 

n6 In fact, numerous factors relied on in the plaintiff-appellee's brief in this Court to indicate domicile in Baltimore County relate solely or primarily to Mrs. Blount.

   The case principally relied upon by the plaintiff Boston is Dorf v. Skolnik, supra, 280 Md. 101, 371 A.2d 1094, where this Court held that a member of a party central committee had abandoned her prior domicile in Baltimore City and had acquired a new domicile in Baltimore County even though she had retained her voter registration in Baltimore City. The facts of the instant case, however, are unlike the facts in the Dorf case. In Dorf, the only explanation for Ms. Dorf's change of abode from Baltimore City to Baltimore County was an intent to change her domicile. She stated on her state [*387] income tax return that she was domiciled in Baltimore County, and her Baltimore County address was listed as her residence on her insurance policy, driver's license, charge accounts and credit card accounts.

   To reiterate, except for his principal place of sleeping, the significant circumstances in the present case confirm Senator[***43] Blount's statements that he did not intend to abandon his long established domicile in Baltimore City. This is not a case where someone desires to run for office in an area where he or she has not lived, and does not wish to live, but merely establishes a "mail drop" in that area and lists the "mail drop" as his or her address for various official and unofficial purposes. Such person has no bona fide intent to be domiciled where the "mail drop" is established. By contrast, Senator Blount has a long and solid connection with Baltimore City, with the 41st legislative district, and with 3410 Copley Road. The plaintiff in this case failed to prove that Senator Blount intended to abandon his domicile in Baltimore [**1125] City and establish a new domicile in Baltimore County. 

CLARENCE W. BLOUNT, et al., Appellant v. FRANK D. BOSTON,JR., Appellee 
No. 90, September Term, 1998
 
COURT OF APPEALS OF MARYLAND
 
351 Md. 359; 718 A.2d 1111; 1998 Md. LEXIS 642

 September  1, 1998, Filed

   PRIOR HISTORY: [*1]

   Appeal from the Circuit Court for  Anne Arundel  County pursuant to certiorari to the Court of Special Appeals. Michael E. Loney, JUDGE.

COUNSEL: ARGUED BY George L. Russell, Jr. (George A. Nilson, Anthony P. Ashton, Piper & Marbury L.L.P., on brief) of Baltimore, MD FOR APPELLANTS.
 
ARGUED BY Steven A. Allen (Una M. Perez, Hodes, Ulman, Pessin & Katz, P.A., on brief) of Towson, MD FOR APPELLEE.

JUDGES: ARGUED BEFORE: Bell, Eldridge, Rodowsky, Raker, Wilner, Cathell, Karwacki, Robert L. (retired, specially assigned), JJ. Robert M. Bell, Chief Judge.

OPINIONBY: Robert M. Bell

OPINION: PER CURIAM ORDER

   For reasons to be stated in an opinion later to be filed, it is this 1st day of September, 1998,

   ORDERED, by the Court of Appeals of Maryland, that the judgment of the Circuit Court for Anne Arundel County is reversed; mandate to issue forthwith; costs to be paid by appellee.

   /s/ Robert M. Bell

   Chief Judge 

Blount v. Boston 
[NO NUMBER IN ORIGINAL]
 
COURT OF APPEALS OF MARYLAND
 
351 Md. 160; 717 A.2d 384; 1998 Md. LEXIS 746

 August  27, 1998, Decided

NOTICE: 

 [*1]  DECISION WITHOUT PUBLISHED OPINION 

PRIOR HISTORY: (No. C-98481890C, Circuit Court for  Anne Arundel  County.)

OPINION: Petitions for Writ of Certiorari Granted on the motion of this Court. 

JAMES KIM, RED RIB LTD. t/a Ace of Clubs v. COMPTROLLER OFTHE TREASURY 
No. 107, September Term, 1996
 
COURT OF APPEALS OF MARYLAND
 
350 Md. 527; 714 A.2d 176; 1998 Md. LEXIS 571

 July  30, 1998, Filed

   SUBSEQUENT HISTORY: Appeal from the Circuit Court for  Anne Arundel  County pursuant to certiorari to the Court of Special Appeals.

DISPOSITION: [***1] JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY REVERSED, AND CASE REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. COSTS TO BE PAID BY THE RESPONDENT.

CORE TERMS:  judicial review, premature, written order, memorandum, jurisdictional, prematurely, notice, administrative agency, final order, timeliness, statute of limitations, original action, agency action, tort action, vice president, subject to judicial review, administrative procedures, judicial remedy, prematurity, contested, administrative remedies, administrative decision, appealable judgment, final decision, arbitration, instituting, exhaustion, contractor, exhausted, demurrer

COUNSEL: Argued By: William E. Kirk (Townshend & Kirk, P.A., on brief) of Annapolis, MD, for Appellant.
 
Argued By: Sheldon H. Laskin, Assistant Attorney General, on brief) of Baltimore, MD, for Appellee.

JUDGES: Argued Before: Bell, C.J., Eldridge, Rodowsky, Chasanow, * Karwacki, Raker, Wilner, JJ. OPINION BY ELDRIDGE. 

* Karwacki, J., now retired, participated in the hearing of this case while an active member of this Court; after being recalled pursuant to the Constitution, Article IV, Section 3A, he also participated in the decision and the adoption of the opinion.

OPINIONBY: ELDRIDGE

OPINION: [*530]
  
[**177] Opinion by Eldridge, J.

   Filed: July 30, 1998
 
In this case we review a decision by the Circuit Court for Anne Arundel County dismissing as premature a petition for judicial review of an order of the Maryland Tax Court. We shall reverse.
 
I.

   The pertinent facts are relatively uncomplicated. James Kim owned and operated a tavern on Fort Smallwood Road in Anne Arundel County and held an alcoholic beverage license for the property. As a result of financial[***2] losses incurred by the tavern, Kim decided to sell the business to The Red Rib, Ltd., and the real estate to G. Glenn Schiller. Because Schiller was a non-resident of Anne Arundel County and could not qualify for the transfer of the alcoholic beverage license, Kim agreed to sign a liquor license application as Vice President of The Red Rib, Ltd., thereby qualifying it as a corporate applicant.

   Apparently the business failed to remit to the State sales and use taxes which it had collected. Therefore, the Comptroller levied an assessment against Kim, as an officer of the corporation, in the amount of $16,417.06, pursuant to Maryland Code (1988, 1997 Repl. Vol.), § 11-601 of the Tax-General Article. Section 11-601(d)(1)(i) provides for personal liability on the part of the "president, vice president or treasurer" of a corporation which fails to remit sales and use taxes to the Comptroller.

   Kim contested the assessment in the Maryland Tax Court, which affirmed the assessment. Kim argued in the Tax Court that he should not be subject to personal liability under § 11-601(d)(1)(i) because he was not really the vice president of the corporation although he did sign the liquor license[***3] application in that capacity as an accommodation to Schiller. At the conclusion of a hearing held on December 6, 1995, the judge of [*531] the Tax Court orally ruled that the assessment was proper but that the penalties should be waived. The judge also directed the Assistant Attorney General representing the Comptroller to prepare a written order to that effect.

   On December 11, 1995, Kim filed in the Circuit Court for Anne Arundel County a petition for judicial review of the Tax Court's decision. The petition requested "judicial review of the oral denial of appeal . . . made by [the Tax Court] on December 6, 1995." Subsequently, on December 18, 1995, the Tax Court entered its written order "that the assessment levied by the Comptroller, including interest, be and the same is hereby AFFIRMED. Penalty is to be abated." Kim then filed in the circuit court, on January 17, 1996, a memorandum in support of his petition for judicial review. This memorandum was captioned "Petition of James Kim . . . For Judicial Review of the Decision of the Maryland Tax Court in the case of: James Kim . . . vs. Comptroller of the Treasury." Finally, on January 22, 1996, the Comptroller filed its response to Kim's [***4]petition for judicial review and a motion to dismiss the petition as premature because it was filed before entry of the Tax Court's written order. The Comptroller relied on cases dealing with premature appeals from trial courts to appellate courts. n1 

 n1 Although not briefed or argued by either of the parties, we note that, while the Comptroller complained about the prematurity of Kim's petition for judicial review, it appears from the record that the Comptroller's own response to the petition was untimely under Maryland Rule 7-204(c). Under Rule 7-204(c), the response was required to be filed "within 30 days after the date the agency mails notice of the filing of the petition" to the parties. According to its certificate of compliance filed with the circuit court, the Tax Court mailed notice of the filing of the petition for judicial review to the parties on December 19, 1995. Therefore, the Comptroller was required to file its response by January 18, 1996. See Rule 1-203(a) (computation of time after an event). The Comptroller, however, filed its response four days late, on January 22, 1996.

[***5]

   [**178] After a hearing, the circuit court granted the Comptroller's motion to dismiss Kim's judicial review action as premature. The circuit court, relying upon Rohrbeck v. Rohrbeck, 318 Md. 28, 566 A.2d 767 (1989), concluded that the final order by the Tax Court was entered on December 18, 1995, when the written order was filed, and not when the Tax Court judge [*532] ruled from the bench. In Rohrbeck, 318 Md. at 42, 566 A.2d at 774, we stated that
 
"whenever the court, whether in a written opinion or in remarks from the bench, indicates that a written order embodying the decision is to follow, a final judgment does not arise prior to the signing and filing of the anticipated order unless (1) the court subsequently decides not to require the order and directs the entry of judgment in some other appropriate manner or (2) the order is limited to be collateral to the judgment."
 
The circuit court concluded, therefore, that the request for judicial review filed by Kim on December 11, 1995, was premature, and dismissed the judicial review action, stating that "since no petition for judicial review was filed subsequent to December 18, 1995, the matter has not been appealed from the administrative[***6] agency." Kim appealed, and this Court issued a writ of certiorari before consideration of the case by the Court of Special Appeals. Kim, Red Rib Ltd. v. Comptroller, 344 Md. 328, 686 A.2d 634 (1996).
 
II.

   Judicial review of decisions of the Maryland Tax Court is statutorily authorized by Code (1988, 1997 Repl. Vol.), § 13-532(a)(1) of the Tax-General Article, which states that "[a] final order of the Tax Court is subject to judicial review as provided for contested cases in §§ 10-222 and 10-223 of the State Government Article." n2 The procedures for bringing a judicial review action from the Tax Court are contained in Maryland Rules 7-201 et seq. Rule 7-203(a) specifies the time for filing a statutorily authorized judicial review action, stating as follows:

n2 Sections 10-222 and 10-223 of the State Government Article are part of the Administrative Procedure Act; they set forth generally the procedures to be followed by the court in conducting judicial review actions in contested cases, and provide for an appeal to the Court of Special Appeals.

[*533] [***7]

   "Except as otherwise provided in this Rule or by statute, a petition for judicial review shall be filed within 30 days after the latest of:

   "(1) the date of the order or action of which review is sought;

   "(2) the date the administrative agency sent notice of the order or action to the petitioner, if notice was required by law to be sent to the petitioner; or
 
"(3) the date the petitioner received notice of the agency's order or action, if notice was required by law to be received by the petitioner."

   In the instant case, the Tax Court was required by law to send its written order to Kim and the Comptroller. Section 13-529 of the Tax-General Article states as follows:

   "(a) In each appeal, the Tax Court shall issue a written order that sets forth its decision.

   "(b) Each order of the Tax Court shall be filed with its clerk.

   "(c) The clerk of the Tax Court shall certify the order in an appeal and mail a copy of the certified order to:

   "(1) each party to the appeal; and
 
"(2) the tax determining agency from which the appeal is taken."
 
Therefore, under the statute and Rule 7-203(a)(2), the relevant date governing the timeliness of an action for judicial review was the[***8] date the written order of the Tax Court was filed and mailed to the parties. Although it is somewhat unclear from the record, it appears that the written order was mailed to Kim on December 18, 1995, the day the order was entered. Thus, Kim's petition for judicial review should have been filed within 30 days after December 18, 1995.

   [**179] We agree with the circuit court that the final agency action subject to judicial review was the entry and mailing of the written order on December 18, 1995. As indicated previously, under § 13-532(a)(1) of the Tax-General Article, only a final order of the Tax Court is subject to judicial review. [*534] Ordinarily an agency order is not final when it is contemplated that there is more for the agency to do.  Holiday Spas v. Montgomery County, 315 Md. 390, 396, 554 A.2d 1197, 1200 (1989). See also Maryland Comm'n on Human Rel. v. B.G. & E. Co., 296 Md. 46, 56-57, 459 A.2d 205, 211-212 (1983).
 
   In the instant case, the Tax Court's December 6, 1995, ruling from the bench was not a final order because more remained for the Tax Court to do, such as filing a written order and mailing it to the parties. Kim should have waited to file his petition for judicial[***9] review until all these steps were completed and the Tax Court's order became final.
 
III.

   Contrary to the position of the circuit court, however, we do not believe that the prematurity determination completes the analysis of this case. For the reasons set forth below, the circuit court erred in dismissing the action for judicial review.
 
A.

   Both the circuit court and the Comptroller improperly relied upon decisions dealing with the effect of the premature filing of an appeal. Although often misinterpreted to be an appeal, this Court has repeatedly emphasized that an action for judicial review of an administrative decision is an original action. It is not an appeal. See, e.g., Driggs Corp. v. Maryland Aviation, 348 Md. 389, 399, 704 A.2d 433, 438 (1998) ("As we have made clear, a petition for judicial review of an administrative order invokes the original, not the appellate, jurisdiction of the circuit court"). See also, e.g., Gisriel v. Ocean City Bd. of Supervisors of Election, 345 Md. 477, 493-496, 693 A.2d 757, 765-767 (1997), cert. denied, 118 S. Ct. 702, 139 L. Ed. 2d 645 (1998), and cases there cited; Shell Oil Co. v. Supervisor,[***10] 276 Md. 36, 43-47, 343 A.2d 521, 525-528 (1975) (because the Tax Court is an administrative agency exercising quasi-judicial functions, "review of a Tax Court decision is an exercise of original and not appellate judicial jurisdiction"). [*535]
 
Because judicial review is an original action and not an appeal, the Comptroller's and the circuit court's reliance on cases dealing with the premature filing of appeals was inappropriate. The time requirements for filing appeals are ordinarily treated as jurisdictional in nature. See, e.g., Blake v. Blake, 341 Md. 326, 338, 670 A.2d 472, 478 (1996), quoting Budinich v. Becton Dickinson & Co., 486 U.S. 196, 202, 108 S. Ct. 1717, 1722, 100 L. Ed. 2d 178, 185 (1988), ("'The time of appealability [has] jurisdictional consequences'"); Dabrowski v. Dondalski, 320 Md. 392, 398, 578 A.2d 211, 214 (1990); Walbert v. Walbert, 310 Md. 657, 662, 531 A.2d 291, 293 (1987), quoting Houghton v. County Comm'rs of Kent County, 305 Md. 407, 413, 504 A.2d 1145, 1148 (1986) ("We have repeatedly stated that the timeliness of an order of appeal is 'jurisdictional,' and that if an appeal is not filed within the prescribed time, 'the appellate[***11] court acquires no jurisdiction and the appeal must be dismissed'"), and cases there cited.

   Therefore this Court has held, absent a special statute or rule dealing with the matter, that a prematurely filed appeal must be dismissed by an appellate court because the appellate court has no jurisdiction over the matter. See, e.g. , Makovi v. Sherwin-Williams Co., 311 Md. 278, 282-283, 533 A.2d 1303, 1305 (1987); Blucher v. Ekstrom, 309 Md. 458, 463, 524 A.2d 1235, 1237 (1987) ("Under a long line of this Court's decisions, when an order of appeal is filed before the appealable judgment, the order of appeal is of no force and effect. There must still be an order of appeal filed after the appealable judgment to confer appellate jurisdiction") (emphasis added); Md.-Nat'l Cap. P. & P. Comm'n v. Crawford, 307 Md. 1, 38 n.17, 511 A.2d 1079, 1098 n.17 (1986) (a "premature . . . order of appeal would . . . not confer [**180] appellate jurisdiction"). n3

n3 The principle applied in these cases has been modified, under certain circumstances, by Rule 8-602(d) and (e). See, e.g., Waters v. U.S.F. & G., 328 Md. 700, 709, 616 A.2d 884, 888 (1992).

[***12]

   The same cannot be said, however, of a prematurely filed petition for judicial review, because the time requirements for filing a petition for judicial review are not jurisdictional. [*536] It is in the nature of a statute of limitations. As the Committee note to Rule 7-203 states, "the time for initiating an action for judicial review is in the nature of a statute of limitations." See also, e.g., Colao v. County Council, 346 Md. 342, 362, 697 A.2d 96, 106 (1997) ("filings of petitions for judicial review are . . . governed by . . . the law relating to statutes of limitations"); United Parcel v. People's Counsel, 336 Md. 569, 579-580, 650 A.2d 226, 231 (1994). Statutes of limitations are not ordinarily jurisdictional, and are generally waivable, including the 30-day time limit for filing a petition for judicial review. Colao v. County Council, supra, 346 Md. at 364, 697 A.2d at 107 ("the 30-day requirement for filing the petition [is] in the nature of an absolute statute of limitations, subject to waiver by failure of a respondent to raise the defense in a proper manner"). Because the 30-day requirement of Rule 7-203 is not jurisdictional, it was improper for the circuit[***13] court and the Comptroller to rely on cases concerning the timeliness of notices of appeal.
 
B.

   In a case such as this, where a petition for judicial review is filed prematurely because the agency action is not yet final, but where there is final agency action before any proceedings are undertaken in the circuit court, it is improper to dismiss the petition as premature.

   In Md.-Nat'l Cap. P. & P. Comm'n v. Crawford, supra, 307 Md. 1, 511 A.2d 1079, an employee of the Maryland-National Capital Park and Planning Commission brought an action for damages and injunctive relief after being denied a transfer allegedly because of her race. She filed her action before she had fully exhausted her administrative remedies under the Commission's employment grievance system. Thus, she filed "the court suit more than two months before the final administrative decision." 307 Md. at 16, 511 A.2d at 1087. The Commission filed a demurrer based on the employee's failure to exhaust her administrative remedies before bringing the court action. This Court held that the circuit court properly overruled the demurrer because "trial was held more than six [*537] weeks after the Merit System Board issued[***14] its final decision . . . . Hence the plaintiff reached the exhaustion point contended for by the Commission by the time trial was held." 307 Md. at 17, 511 A.2d at 1087. We stated (307 Md. at 18, 511 A.2d at 1087-1088):
 
   "In addition, in situations like that in the present case, where there is both an administrative remedy and an independent judicial remedy (i.e., a specific judicial remedy exists other than judicial review of the administrative decision), where the administrative agency may have primary jurisdiction, and where the plaintiff invokes the judicial remedy prior to exhausting the administrative procedures, it has been held that the trial court may retain jurisdiction pending exhaustion of the administrative procedures. . . . Once the administrative procedures are exhausted, the trial court may proceed; the plaintiff whose case is meritorious may be entitled to whatever relief is available under either the independent judicial action or the administrative/judicial review remedy."

 
See also McCullough v. Wittner, 314 Md. 602, 612-613, 552 A.2d 881, 886 (1989); Board of Ed. for Dorchester Co. v. Hubbard, 305 Md. 774, 792, 506 A.2d 625, 634 (1986); [***15] Offutt v. Montgomery Co. Bd. of Ed., 285 Md. 557, 562, 404 A.2d 281, 284 (1979).

   Recently, in Goicochea v. Langworthy, 345 Md. 719, 729, 694 A.2d 474, 479, cert. denied, 118 S. Ct. 321, 139 L. Ed. 2d 249 (1997), we recognized a similar principle in the medical malpractice arbitration context. The Maryland Health Care Malpractice Claims Act, Code (1974, 1995 Repl. Vol., 1997 Supp.), §§ 3-2A-01 through 3-2A-09 of the Courts and Judicial Proceedings [**181] Article, requires "the submission of [medical] malpractice claims against health care providers to an arbitration proceeding as a condition precedent before maintaining a tort action in the circuit court." 345 Md. at 725, 694 A.2d at 477. In Langworthy, we stated that the normal procedure to be followed when a tort action is filed in the circuit court prior to completion of the arbitration process, rather than to dismiss the tort action, is to "stay the civil [*538]action pending the conclusion of arbitration proceedings." 345 Md. at 729, 694 A.2d at 479. See also Jewell v. Malamet, 322 Md. 262, 276, 587 A.2d 474, 481 (1991).

   Just this term in Driggs Corp. v. Maryland Aviation, supra, 348 Md. 389, 704 A.2d 433, we[***16] had occasion to consider the proper remedy when a judicial review action is filed prematurely. In Driggs, a government contractor brought an action for judicial review of a decision by the Board of Contract Appeals which had decided that a government agency had properly terminated its contract for default. The circuit court dismissed the judicial review action on the ground that the contractor had acquiesced in the Board's decision. This Court, however, held that there had been no acquiescence but that the petition for judicial review had been filed prematurely because issues remained to be resolved by the Board. Faced with this premature filing of an action for judicial review, Judge Wilner, writing for the Court, concluded that the proper course of action was as follows (348 Md. at 408, 704 A.2d at 443) (emphasis added):

   "Accordingly, we shall vacate the circuit court judgment . . . and remand the case to the circuit court. If the damages issue has not yet been resolved by [the Board of Contract Appeals], the court shall dismiss the petition as being premature and remand the matter to [the Board] for a final decision. If, by now, the damages issue has been resolved by [***17]  [the Board], the court should allow Driggs to file a new petition or amend the existing one, as appropriate, and then proceed in accordance with § 10-222 and the applicable rules to provide judicial review."

   This view is in accord with the general approach adopted by many courts which have considered the issue of the premature filing of an original action. As the Supreme Court of California stated in Radar v. Rogers, 49 Cal. 2d 243, 250, 317 P.2d 17, 21 (1957), "if the stated ground [of prematurity] does not exist at the time of trial it may be disregarded." Other cases taking the position that premature original actions should not be dismissed under the circumstances presented include, e.g., Moore v. Fellner, 50 Cal. 2d 330, 343, 325 P.2d 857, 864 (1958); [*539] Archibald v. Iacopi, 120 Cal. App. 2d 666, 669, 262 P.2d 40 (1953); Warren v. Shands Teaching Hosp., 700 So. 2d 702, 705 (Fla. Dist. Ct. App. 1997); Latin Express Service, Inc. v. Florida Dept. of Revenue, 660 So. 2d 1059, 1060 (Fla. Dist. Ct. App. 1995); Hindman v. Reaser, 246 Iowa 1375, 1382, 72 N.W.2d 559, 563 (1955); Thompson v. Meyers, 211 Kan. 26, 33-34, 505 P.2d 680, 686 (1973); Tanzilli [***18]  v. Casassa, 324 Mass. 113, 115, 85 N.E.2d 220, 221 (1949); Boydstun v. Pearson, 239 Miss. 479, 481-482, 123 So. 2d 621, 622-623 (1960). n4

n4 A minority of cases have held that the premature filing of a suit cannot be cured by the accrual of a cause of action before the court considers the suit. See, e.g., American Bonding and Trust Co. v. Gibson County, 145 F. 871, 874 (6th Cir. 1906); Werber v. Atkinson, 84 A.2d 111, 113 (D.C. 1951); City Inv. Co. v. Williams, 171 La. 848, 850-851, 132 So. 367, 368 (1931); Sutton v. Anderson, 176 Neb. 543, 546, 126 N.W.2d 836, 839 (1964).

   C.

   An alternative reason for reversing the circuit court's decision is that Kim in fact made a filing sufficient to constitute a petition for judicial review within thirty days after the final action by the Tax Court. As noted earlier, on January 17, 1996, Kim filed a memorandum in support of his petition for judicial review. This memorandum was captioned "Petition of James Kim . . . For Judicial Review of the Decision[***19] of the Maryland Tax Court in the case of: James Kim . . . vs Comptroller of the Treasury." This memorandum contained a statement of the facts underlying the disputed assessment as well as a discussion of the decision and order of the Tax Court. Thus, this memorandum unquestionably contained sufficient information [**182] to satisfy the requirements of Rule 7-202(c), which states as follows:

   "The petition shall request judicial review, identify the order or action of which review is sought, and state whether the petitioner was a party to the agency proceeding. If the petitioner was not a party, the petition shall state the basis of the petitioner's standing to seek judicial review. No other allegations are necessary." [*540]

   This Court has previously found filings of much less substance than Kim's memorandum to be sufficient to constitute pleadings instituting actions or seeking relief. See, e.g., Gluckstern v. Sutton, 319 Md. 634, 650-651, 574 A.2d 898, 906, cert. denied, 498 U.S. 950, 111 S. Ct. 369, 112 L. Ed. 2d 331 (1990) ("memorandum of law" filed subsequent to court order treated as a "motion under Rule 2-535(a) to revise the judgment"); Office of Fin., Balto. Co. v. Previti, [***20]296 Md. 512, 463 A.2d 842 (1983) (a letter sent to the county attorney and forwarded to the District Court deemed sufficient to constitute an original pleading instituting an action in the District Court).

   The memorandum filed by Kim was sufficient to be treated as a petition for judicial review. Furthermore, because Kim filed his memorandum on January 17, 1996, within thirty days after the Tax Court's final action, Kim met the timeliness requirements of Rule 7- 203(a).

   JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY REVERSED, AND CASE REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. COSTS TO BE PAID BY THE RESPONDENT.

                       
Givens v. Harp 
Pet. Docket No. 31, September Term, 1998
 
COURT OF APPEALS OF MARYLAND
 
350 Md. 276; 711 A.2d 868; 1998 Md. LEXIS 456

 June  25, 1998, Decided

   PRIOR HISTORY: [*1] (No. C-96-2908C, Circuit Court for  Anne Arundel  County).

OPINION: Petition for Writ of Certiorari denied. 

EDGEWATER LIQUORS, INC., et al. v. AGNES T. LISTON et al. 
No. 102, September Term, 1997
 
COURT OF APPEALS OF MARYLAND
 
349 Md. 803; 709 A.2d 1301; 1998 Md. LEXIS 404

 May  22, 1998, Filed

   PRIOR HISTORY: [***1]

   Appeal from the Circuit Court for  Anne Arundel  County pursuant to certiorari to the Court of Special Appeal. Robert H. Heller, JUDGE.

DISPOSITION: JUDGMENT AFFIRMED; APPELLANTS TO PAY COSTS.

CORE TERMS:  licensee, license, licensing board, judicial review, licensed, alcoholic beverage, legislative intent, liquor, holder, licensing, common sense, standing to appeal, right to appeal, voting district, real estate, utilized, precinct, residents, statutory construction, right of appeal, predecessor, construing, illogical, isolation, construe, liquor license, governmental entity, place of business, board action, establishment

COUNSEL: ARGUED BY Jonathan A. Hodgson, (Hyatt, Peters & Weber, P.A. of Annapolis, MD) on brief, FOR APPELLANTS.
 
ARGUED BY Linda C. Carter (Douglas C. Meister, Meyers, Billingsley, Rodbell & Rosenbaum, P.A., of Riverdqale, MD) all on brief, FOR APPELLEES.

JUDGES: ARGUED BEFORE Bell, C.J., Eldridge, Rodowsky, Chasanow, Raker, Wilner, and Cathell, JJ. Opinion by Cathell, J.

OPINIONBY: CATHELL

OPINION: [*805]
 
[**1301] Opinion by Cathell, J.
 
In this opinion, we address whether, pursuant to Maryland Code (1957, 1998 Repl. Vol.), Art. 2B, § 16-101(b)(1)(i), persons who are already holders of existing alcoholic beverage licenses may seek judicial review n1 of a local licensing board's decision to grant a [**1302] new alcoholic beverage license to a previously unlicensed applicant. Judge Robert Heller of the Circuit Court for Anne Arundel County correctly found that such persons lacked standing to appeal under section 16-101(b)(1)(i) of Article 2B. We shall affirm.

 n1 The initial step for a party displeased with an administrative determination is to seek judicial review of the agency's actions in the circuit court pursuant to Maryland Rules 7-200 et seq. Technically, this step constitutes an original action. Thereafter, further proceedings seeking a review of the circuit court actions are appeals. Article 2B, section 16-101(a) and (b) uses the word appeal for the initial step seeking judicial review. We will sometimes use the words judicial review and appeal interchangeably when describing the action at the circuit court level. We shall also refer to the parties as appellants and appellees throughout.

[***2]

   I.

   Agnes T. Liston, Valerie C. McCool, and Lenny M. Holland, collectively appellees, applied for a Class A and Sunday alcoholic beverage license on behalf of Colony Liquors, Inc., trading as Colony Liquors, to operate a package goods store in Anne Arundel County. The application was heard by the Board of License Commissioners of Anne Arundel County (the [*806] Board) on August 27, 1996. During that hearing, five individuals, all holders of other alcoholic beverage licenses, and the corporations on whose behalf they held such licenses, collectively appellants, participated either in person or by counsel at the hearing in opposition to the granting of the license at issue.

   On August 28, 1996, the Board approved the issuance of a Class A Beer, Wine and Liquor License to appellees. On September 24, 1996, appellants filed a Petition for Judicial Review in the Circuit Court for Anne Arundel County. Appellees, asserting that appellants lacked standing to seek that review, moved to dismiss the petition. On May 15, 1997, the circuit court granted the motion to dismiss. Appellants appealed to the Court of Special Appeals. We granted a writ of certiorari prior to argument in that court.

   We[***3] hold that Maryland Code (1957, 1998 Repl. Vol.), Art. 2B, § 16-101(b)(1)(i), grants a licensee the right to seek judicial review of a decision of a local licensing board only if that licensee's license was the license acted upon by the board.

   II.

   Maryland Code (1957, 1998 Repl. Vol.), Art. 2B, § 16-101 is the applicable statutory provision authorizing appeals from local licensing board decisions. It states in relevant part:

   (a) Generally. -- The decision of a local licensing board, in approving, suspending, revoking and restricting, or refusing to approve, suspend, revoke or restrict any license, or licensee, shall be subject to appeal in the manner provided in this section.

   (b) Who may appeal. -- (1)(i) Except in Howard County, any licensee or applicant for a license, or any group of not less than 10 persons who are residents or real estate owners in the precinct or voting district in which the licensed place of business is located or proposed to be located, may appeal therefrom to the circuit court of the county upon payment of all costs incident to the hearing before the local licensing board. [*807]
 
The term licensee is defined in section 1-102(a)(15)(i) of Article[***4] 2B as "the holder of any license or permit, issued under the provisions of this article or of any other law of this State, and includes a county liquor control board and a county dispensary."

   Appellants, who have been granted alcoholic beverage licenses by the Board of License Commissioners of Anne Arundel County for establishments other than the one at issue in the instant case, assert they are licensees as defined in section 1-102(a)(15) and therefore are licensees for purposes of section 16-101(b)(1)(i). They argue that as licensees, they are entitled to seek review of the decision of the Board pursuant to section 16-101(b)(1)(i). Appellants further contend that this Court should give the term "any licensee" its "natural and ordinary meaning" and uphold the right of any licensee, licensed for any purpose, whether licensed by a local licensing board or some other governmental entity, to seek judicial review in the circuit court of a decision of a local liquor licensing board even when the appealing licensee was not the licensee whose license was the subject of the local board's decision.

   Appellees, on the other hand, assert section 16-101(b)(1)(i) should be read in conjunction[***5] with subsection (a). They argue that when the two provisions are read together, the term "any licensee" refers to the licensee whose license was acted upon in some way by a local licensing board. Accordingly, they conclude that appellants, whose alcoholic beverage licenses were not [**1303] the subject of the Board hearing in that their licenses were not suspended, revoked, or restricted, or otherwise the subject of the proceeding, have no standing to seek such review.

   III.

   Our task in the instant case involves statutory construction. "In construing the meaning of a word in a statute, the cardinal rule is to ascertain and carry out the real legislative intention." Tucker v. Fireman's Fund Ins. Co., 308 Md. 69, 73, [*808] 517 A.2d 730, 731 (1986); see also Marriott Employees Fed. Credit Union v. Motor Vehicle Admin., 346 Md. 437, 444, 697 A.2d 455, 458 (1997) (citing State v. Pagano, 341 Md. 129, 133, 669 A.2d 1339, 1340 (1996)); Romm v. Flax, 340 Md. 690, 693, 668 A.2d 1, 2 (1995)(quoting Tucker, 308 Md. at 73, 517 A.2d at 731). Legislative intent generally is derived from the words of the statute at issue.  Marriott, 346 Md. at 444-45, 697 A.2d at 458; Romm, 340 Md. at[***6] 693, 668 A.2d at 2; Tucker, 308 Md. at 73, 517 A.2d at 731. "We are not constrained, however, by . . . 'the literal or usual meaning' of the terms at issue." Romm, 340 Md. at 693, 668 A.2d at 2. "Furthermore, we do not read statutory language 'in isolation or out of context [but construe it] in light of the legislature's general purpose and in the context of the statute as a whole.'" Frost v. State, 336 Md. 125, 138, 647 A.2d 106, 112 (1994) (quoting Forbes v. Harleysville Mut. Ins. Co., 322 Md. 689, 696-97, 589 A.2d 944, 948 (1991)); see also Kaczorowski v. Mayor of Baltimore, 309 Md. 505, 514, 525 A.2d 628, 632 (1987) ("The 'meaning of the plainest language' is controlled by the context in which it appears.").
 
 In analyzing a statute, we approach statutory construction from a common sense perspective.  Marriott, 346 Md. at 445, 697 A.2d at 459; Frost, 336 Md. at 137, 647 A.2d at 112. Accordingly, we avoid construing a statute so as to lead to results that are unreasonable, illogical, or inconsistent with common sense. Marriott, 346 Md. at 445, 697 A.2d at 459; Frost, 336 Md. at 137, 647 A.2d at 112; Holman v. Kelly Catering, 334 Md. 480, [***7] 487, 639 A.2d 701, 705 (1994); Kaczorowski, 309 Md. at 516, 525 A.2d at 633.

   The parties present two different interpretations of sections 16-101(a) and (b). The first interpretation, as urged by appellants, is that any licensee or any applicant for a license may appeal a decision of a local licensing board. The second, advocated by appellees, is that a licensee may seek judicial review of a board decision only when that decision involves the license held by the licensee. [*809]

   When read in isolation, it can be argued that section 16-101(b)(1)(i) might permit "any licensee," as licensee is defined in section 1-102(a)(15)(i), to appeal a decision of a local licensing board. Section 16-101(b)(1)(i), however, must be read in the context of section 16-101(a). That preceding subsection describes the types of decisions from which an appeal may be taken. An appeal may be taken from a decision "approving, suspending, revoking and restricting . . . any license, or licensee." An appeal may also be taken from a decision "refusing to approve, suspend, revoke or restrict any license, or licensee." Art. 2B, § 16-101(a).
 
Section 16-101(b)(1)(i) then specifies the classes of individuals who[***8] may appeal the decision of a local licensing board. It states that "any licensee or applicant for a license, or any group of not less than 10 persons who are residents or real estate owners in the precinct or voting district in which the licensed place of business is located or proposed to be located" may appeal a decision of the board. From the language of this section, it is evident that there are two main groups of individuals who may seek judicial review of a local licensing board decision. The first group is comprised of licensees and applicants. The second group is comprised of residents or real estate owners in the respective precinct or voting district in which the licensed establishment is located. It is the first group that concerns us in this case.

   The grouping of the term "licensee" with the term "applicant" in section 16-101(b)(1)(i) is instructive as to the person or persons who have the right to appeal a decision of a local licensing board. We believe that by grouping the term "applicant" with "licensee," the legislature intended to limit the types of [**1304] licensees who had the right to appeal a decision of the board to those whose license or application for a license was[***9] the subject of local liquor board action. Thus, in light of the legislative intent, which we shall discuss further infra, we conclude that the legislature intended some direct nexus between the licensee appealing the decision of a local licensing board and the license acted upon by the board. Stated another way, the term licensee, as utilized in section 16-101(b)(1)(i), [*810] refers to the licensee who was the subject of board action or the licensee whose license was suspended, revoked, or restricted during the hearing from which a judicial review is sought.
 
Our interpretation of licensee as utilized in section 16-101(a) is consistent with the legislative intent of section 16-101. In Brashears v. Lindenbaum, 189 Md. 619, 56 A.2d 844 (1947), we examined a predecessor of current section 16-101 to determine whether an appeal brought by ten individuals and a Board of Education should have been dismissed. Examining the statute, we noted its legislative intent: "A reading of these provisions indicates a clear legislative intention to restrict the right of appeal at every stage." Id. at 626, 56 A.2d at 848.

   Although we noted recently in Hollywood Productions, 344 Md. 2, 684 [***10]A.2d 837, that the predecessor to Maryland 16-101 had been amended to confer broad rights of appeal from the circuit court to the Court of Special Appeals, the statute was not amended as to the persons who may appeal a decision of the local licensing board to the circuit court. Sections 16-101(a) and (b) remain relatively unchanged following the 1992 amendments. Accordingly, with regard to those sections, we believe that the continued legislative intent is to limit the types of individuals who may appeal decisions of the local licensing boards to the circuit courts.

   According to appellants, any individual or entity licensed in Maryland, whether licensed by a local licensing board or some other governmental entity, would have standing to appeal a decision of a local liquor licensing board. At oral argument, the Court asked appellants' counsel whether, under appellants' interpretation of the statute, the following entities or individuals would have standing to appeal to the Circuit Court of Anne Arundel County the decision by the Board: a liquor license holder in Garrett or Worcester Counties, an individual licensed to rent beach umbrellas in Ocean City, or the holder of a driver's[***11] license in Prince George's County. In each instance, appellants' counsel responded affirmatively. We believe an interpretation of section 16-101(b)(1)(i) conferring the [*811] right to appeal to any licensee in the State of Maryland, as appellants would seek to construe the statute, leads to a result that is unquestionably unreasonable, illogical, inconsistent with common sense, and absurd. Furthermore, such an interpretation of the statute would be contrary to the intent of the legislature to limit the right of appeal from a local liquor licensing board's decision.

   We therefore hold that the term "licensee," as utilized in section 16-101(b)(1)(i), refers to the person whose license was involved in a local licensing board's decision from which judicial review in the circuit court is sought. Such an interpretation comports with the context of the statute and the legislative intent.

   None of the appellants, each of whom hold alcoholic beverage licenses granted by the Board, were the individuals whose license was acted upon by the Board. Accordingly, none are licensees entitled to appeal the decision of the Board to the Circuit Court for Anne Arundel County.
 
JUDGMENT AFFIRMED; APPELLANTS[***12] TO PAY COSTS. 

KIMBERLY ANN FERGUSON et al. v. STEVEN J. CRAMER et al. 
No. 82, September Term, 1997
 
COURT OF APPEALS OF MARYLAND
 
349 Md. 760; 709 A.2d 1279; 1998 Md. LEXIS 323

 May  21, 1998, Filed

   PRIOR HISTORY: [***1] Circuit Court for  Anne Arundel  County. Case # C-94-17453 OL. Lawrence H. Rushworth, JUDGE.

DISPOSITION: JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED. COSTS TO BE PAID BY PETITIONER.

CORE TERMS:  beneficiary, personal representative, duty, third-party, privity, receiver, malpractice, cause of action, attorney-client, testator, royalty, fiduciary, decedent, nonclient, handling, heirs, owed, breach of fiduciary duty, matter of law, performing, balancing, advice, owes, administering, inventory, advise, estate planning, court-appointed, receivership, appointing

COUNSEL: ARGUED BY: Christopher M. Johns of Germantown, MD., FOR PETITIONERS.
 
ARGUED BY: Kathleen Howard Meredith (Stephan Y. Brennan, Iliff & Meredith, P.C. of Baltimore, MD); ARGUED BY: Charles Martinez (Eccleston & Wolf of Baltimore, MD) all on brief, FOR RESPONDENTS.

JUDGES: ARGUED BEFORE: Bell, C. J.; Eldridge, Rodowsky, Chasanow, Raker, Wilner, and Cathell, JJ. Opinion by Chasanow, J.

OPINIONBY: CHASANOW

OPINION: [*762]
 
[**1280] Opinion by Chasanow, J.
 
In the instant case, we are called upon to determine whether a beneficiary under a will may maintain a cause of action for professional malpractice against an attorney retained by the personal representative of the testator's estate. We recently held that, as a matter of law, a nonclient, testamentary beneficiary could not maintain a cause of action for professional malpractice against the testator's attorney for negligently drafting the testator's will or providing negligent estate planning advice where there was a lack of privity between the beneficiary and the attorney.  Noble v. Bruce, 1998 Md. LEXIS 322, 349 Md. 730, 709 A.2d 1264 (1998)(No. 7, 1997 Term). We believe that the Noble decision is[*763] controlling and therefore affirm the[***2] judgment of the Court of Special Appeals.

   I.

   The following facts alleged in the complaint and the exhibits thereto were before the Court of Special Appeals. Petitioners (the beneficiaries) are the heirs of Dennis Webster Eckes. On April 15, 1991, Mr. Eckes died. The will designated Paula [**1281] Eckes as the personal representative. n1 On April 24, 1991, Ms. Eckes and Respondent, Steven Cramer, entered into a retainer agreement for Cramer "to represent her in handling and administering" Mr. Eckes's estate. This agreement, attached to the complaint as an exhibit, named Ms. Eckes as the client. The agreement was entered "for the purpose of representation and all appropriate legal action by the law firm for handling [the] estate of Dennis Eckes." The agreement provided that Cramer's fee was to be set by the court and that Ms. Eckes agreed to "pay all reasonable and necessary costs arising during the handling of this claim."

n1 Ms. Eckes is the ex-wife of Mr. Eckes and the mother of the beneficiaries. Ms. Eckes was not named as a beneficiary under Mr. Eckes's will.

[***3]

   In their complaint, the beneficiaries alleged that "as the only heirs of the Estate of Dennis Webster Eckes, [they] were specifically intended to be the beneficiaries of Cramer's service as attorney for the estate of Dennis Webster Eckes." In addition, the beneficiaries claimed that Cramer owed a duty to assist Ms. Eckes in carrying out her duties as the personal representative of the estate and a duty "to exercise that degree of care and diligence in pursuing the administration of the Estate of Dennis Webster Eckes as used by attorneys engaged in the practice of law." It is further alleged that Cramer breached his duty to the beneficiaries of the estate and that this breach caused both the beneficiaries and the estate to suffer long-term economic loss. The beneficiaries also alleged suffering emotional trauma. [*764]

   Specifically, the beneficiaries first asserted that Cramer failed to properly obtain accurate appraisals of the testator's assets, including the inventory of Mr. Eckes's business, resulting in an overvaluation of estate assets. n2 The beneficiaries further alleged that Cramer directed the inventory of Mr. Eckes's business to be appraised at its highest retail value. This[***4] overvaluation in turn resulted in an increase in the value of Mr. Eckes's gross estate upon which federal and state estate taxes were paid. Once the inventory of Mr. Eckes's business was sold, the beneficiaries assert that substantial legal and accounting fees were expended to obtain refunds from the federal and state governments, presumably due to an overpayment in estate taxes. In addition, the beneficiaries alleged that Cramer failed to adequately advise Ms. Eckes regarding the administration of the estate and the filing of accurate accountings. Finally, the beneficiaries claimed that Cramer failed to adequately advise Ms. Eckes regarding: 1) the estate's rights to the payment of trademark and tradename licensing fees and copyright royalty payments from Edgewater Book Distributors, Inc.; and 2) the estate's rights to copyright royalty payments from Dr. James Beckett, III under a publisher-author agreement. The complaint indicates that the beneficiaries retained their own attorney during the administration of Mr. Eckes's estate and that in March 1993 their counsel contacted Edgewater and demanded payment of the licensing fees and royalties.

n2 According to the complaint, the beneficiaries filed exceptions to the first accounting, and the Orphans Court for Anne Arundel County subsequently permitted an amended inventory to be filed to reflect the actual valuation of the estate.

[***5]

   The beneficiaries filed their complaint against Cramer and his law firm, Bodie, Nagle, Dalina, Smith & Hobbs (the Respondents) on December 9, 1994. The Respondents later filed a motion to dismiss. On July 8, 1996, the Circuit Court for Anne Arundel County granted the Respondents' motion, ruling that the third-party beneficiary exception to the strict privity rule did not apply and that there was no privity between the beneficiaries and Cramer. On appeal, the Court[*765] of Special Appeals in a reported opinion affirmed the trial court's judgment.  Ferguson v. Cramer, 116 Md. App. 99, 695 A.2d 603 (1997). We granted the beneficiaries' petition for writ of certiorari on November 17, 1997. 
 
II.

   The beneficiaries argue that Ms. Eckes, as the personal representative for Mr. Eckes's estate, hired Cramer with the specific intent to directly benefit the beneficiaries, and thus the beneficiaries have standing to sue Cramer under the third-party beneficiary exception [**1282] to the strict privity rule as set forth in our decisions in Flaherty v. Weinberg, 303 Md. 116, 492 A.2d 618 (1985) and Prescott v. Coppage, 266 Md. 562, 296 A.2d 150 (1972). In a decision rendered prior to our opinion[***6] in Noble, the Court of Special Appeals held in the case sub judice that the third-party beneficiary exception to the strict privity rule did not apply under the circumstances and that the beneficiaries did not have standing to bring a malpractice action against Cramer because no attorney-client relationship existed between the beneficiaries and Cramer. See Ferguson, 116 Md. App. at 112-13, 695 A.2d at 609. We agree.

   In Noble, we examined whether a nonclient, testamentary beneficiary could maintain a cause of action against the testator's attorney for malpractice arising out of will drafting or estate planning. 349 Md. at 733, 709 A.2d at 1266. We noted that Maryland as a general rule adheres to the strict privity rule in attorney malpractice cases and that, where the risk created by negligent conduct is one of economic loss and not death or serious personal injury, the attorney owes no tort duty to the beneficiaries absent privity or its equivalent. See Noble, 349 Md. at 744, 709 A.2d at 1271. In order to state a cause of action for malpractice against an attorney, the first element that a plaintiff must allege and prove is the existence of a duty[***7] between the plaintiff and the defendant; specifically, the plaintiff must allege and prove the [*766] attorney's employment. n3  Flaherty, 303 Md. at 128, 492 A.2d at 624. This Court, however, has recognized the third-party beneficiary exception as a limited exception to the strict privity rule.  See Flaherty, 303 Md. at 131, 492 A.2d at 625-26. In order for the third-party beneficiary exception to apply, this Court explained that the nonclient

   "must allege and prove that the intent of the client to benefit the nonclient was a direct purpose of the transaction or relationship. In this regard, the test for third party recovery is whether the intent to benefit actually existed, not whether there could have been an intent to benefit the third party."
 
Flaherty,[***8] 303 Md. at 130-31, 492 A.2d at 625. After examining the various approaches taken by jurisdictions regarding attorney liability to nonclients, n4 we held in Noble that the third-party beneficiary exception did not apply because the direct purpose and intent of the testator/client in executing a will was not necessarily to benefit the beneficiaries named in the will. 349 Md. at 754, 709 A.2d at 1276. Thus, under the traditional rule of strict privity, the beneficiaries could not maintain a malpractice action against the attorneys because no employment relationship existed between the beneficiaries and the attorneys. Noble, 349 Md. at 752, 709 A.2d at 1275. This Court reasoned that there were compelling policy reasons for the application of the strict privity rule including: 1) the protection of the integrity and solemnity of wills; and 2) the protection of the attorney-client relationship. Noble, 349 Md. at 756, 709 A.2d at 1277. We believe that the Noble decision [*767]is controlling, and thus, the third-party beneficiary exception does not apply in the instant case.

n3 In addition to the attorney's employment, a plaintiff must allege the attorney's neglect of a reasonable duty and loss to the client proximately caused by that neglect of duty. Flaherty v. Weinberg, 303 Md. 116, 128, 492 A.2d 618, 624 (1985).
n4 The three approaches are: 1) the strict privity theory; 2) the third-party beneficiary theory; and 3) the balancing of factors theory. See Noble v. Bruce, 349 Md. 730, 709 A.2d 1264, 1998 Md. LEXIS 322 at *10, (1998) for our discussion of these three theories.

[***9]

   The application of the third-party beneficiary exception in an attorney malpractice case dates back to 1972. See Prescott, supra. In Prescott, Coppage as the receiver for Security Financial Insurance Corporation (Security), a creditor of Maryland Thrift Savings and Loan Company (Maryland Thrift), sued Medley, the court-appointed receiver for Maryland Thrift. 266 Md. at 565, 296 A.2d at 152. One of Medley's duties set forth in the court order appointing him was "'to take possession of [Maryland Thrift's] assets and property and hold or dispose of them under the direction, supervision and further order'" of the court.  Prescott, 266 Md. at 574, 296 A.2d at 156. Coppage also sued Prescott [**1283]who was specially appointed by the court as counsel "to aid [Medley] in the performance of his duties as receiver." Id. Coppage alleged that Medley and Prescott improperly distributed Maryland Thrift's assets to lower priority creditors instead of paying the balance due on Security's priority claim in the amount of $40,000.  Prescott, 266 Md. at 565, 296 A.2d at 151. This Court stated that, in order to determine who is a creditor beneficiary, courts should consider the following[***10] as controlling factors: "the intention of the parties to recognize a person or class as a primary party in interest as expressed in the language of the instrument and consideration of the surrounding circumstances as reflecting upon the parties' intention...." Prescott, 266 Md. at 574, 296 A.2d at 156. This Court further noted that the court order appointing Medley as the receiver clearly indicated that all of Maryland Thrift's creditors were third-party beneficiaries and that the court order appointing Prescott "by necessary implication bound him to those creditor beneficiaries." Id. Thus, as court-appointed counsel, Prescott owed a duty to the court as well as to any beneficiaries the court intended to benefit. We held that the acceptance by Medley and Prescott of the duties entailed in the court order created conditions that gave Coppage standing to sue Prescott as a third-party creditor beneficiary. Id.[*768]

   The beneficiaries claim that the legal relationships in the instant case are virtually identical to those in Prescott. Specifically, the beneficiaries assert in their brief that they are third-party beneficiaries because the court-appointed "personal representative[***11] (fiduciary) hired ... Cramer (attorney) with an actual intent to directly benefit the heirs (beneficiar[ies]) by aiding the personal representative in the performance of her duties." We, however, believe Prescott is distinguishable because the instant case does not involve a receivership. Prescott involved a receivership for which a receiver was specifically appointed by the court for the purpose of taking possession of Maryland Thrift's assets and holding or disposing of them for the benefit of the creditor beneficiaries, and the receiver's attorney was specifically appointed by the court in order to aid the receiver in the performance of his duties. See Prescott, 266 Md. at 574, 296 A.2d at 156. In a receivership proceeding, property taken "is in the custody of the court and the receivers are merely the agents of the court to hold it and manage it" for the benefit of parties in interest, including creditors.  Mathias v. Segaloff, 187 Md. 690, 696-97, 51 A.2d 654, 657 (1947). "The title is subject to the authority of the court to direct the receivers to make some disposition of the property. Until the court does so act, the receivers have no authority to abandon[***12] any property or give it back to the debtor. So long as they are not discharged ..., they still have control over it." Mathias, 187 Md. at 697, 51 A.2d at 657. By contrast, in the administration of an estate, the court is not as involved. In performing his or her duties, a personal representative may act "without application to, the approval of, or ratification by the court." Maryland Code (1974, 1991 Repl. Vol., 1997 Supp.), Estates & Trusts Article, § 7-401(a). n5

n5 Unless otherwise indicated, all statutory references will be to Maryland Code (1974, 1991 Repl. Vol., 1997 Supp.), Estates & Trusts Article.

   In addition, the duty of the receiver differs from that of the personal representative. See Melba Inv. Atl. v. Mimi Selig Homes, 44 Md. App. 234, 235, 238, 407 A.2d 808, 808, 810 (1979)(noting that a receiver's role is to protect the interests of[*769] all creditors, not just the petitioning creditor). Unlike a receiver, who owes a specific duty to all creditors, a personal representative is a fiduciary[***13] and
 
"he is under a general duty to settle and distribute the estate of the decedent in accordance with the terms of the will and the estates of decedents law as expeditiously and with as little sacrifice of value as is reasonable under the circumstances. He shall use the authority conferred upon him by the estates of decedents law, by the terms of the will, by orders in proceedings to which he is a party, and by the equitable principles generally applicable to fiduciaries, fairly considering the interests of all interested persons and creditors."

   [**1284] § 7-101(a). As one court has explained, the primary goal of the personal representative is "to serve the interests of the estate, not to promote the objectives of one group of legatees over the interests of conflicting claimants." Goldberg v. Frye, 217 Cal. App. 3d 1258, 266 Cal. Rptr. 483, 489 (Cal. Ct. App. 1990). Thus, in administering the estate in accordance with the will, a personal representative has a general duty to consider the interests of all interested persons and creditors, including beneficiaries, and is not merely an agent of the court.

   Moreover, it cannot be said in the instant case that the intent of the personal[***14] representative was to benefit the beneficiaries of the estate and that such an intent was the direct purpose of Ms. Eckes's hiring an attorney to assist her in handling Mr. Eckes's estate. In performing his or her duties, a personal representative is permitted, under § 7-401(a), to "exercise all of the power or authority conferred upon him by statute or in the will, without application to, the approval of, or ratification by the court. Except as validly limited by the will or by an order of court, a personal representative may ... exercise the powers enumerated in this section." Specifically, § 7-401(w) permits a personal representative to employ "persons with special skills," such as an attorney, to advise or assist the personal representative in performing his or her administration duties. n6 By its express terms, § 7- 401(w)'s[*770] purpose appears to be to permit the personal representative to seek the advice of an attorney in performing his or her duties rather than to provide representation to creditors and beneficiaries of the estate. Thus, where a personal representative hires an attorney to assist him or her in handling the estate, as in the instant case, the direct purpose in[***15] hiring the attorney is not to benefit the beneficiaries. As the Court of Special Appeals noted, any benefit to the beneficiaries from the personal representative's attorney is merely incidental.  Ferguson, 116 Md. App. at 109, 695 A.2d at 608. Such incidental benefit is not sufficient to impose a duty upon an attorney. See Flaherty, 303 Md. at 131 n.6, 492 A.2d at 625 n.6. In cases such as the instant case, the attorney owes a duty solely to his or her client, the personal representative. See Walton v. Davy, 86 Md. App. 275, 285, 586 A.2d 760, 765 (noting that, where the personal representative was also a beneficiary, the attorney of record for the estate owed a duty to the personal representative to advise and aid the personal representative in the distribution of the estate and that the attorney did not represent the personal representative, or any other beneficiary, personally), cert. denied, 323 Md. 309, 593 A.2d 669 (1991).

n6 We note that such employment is not subject to court approval. See § 7-401(a). A receiver, however, is prohibited from hiring an attorney without prior approval of the court. See Maryland Rule 13-301(a).

[***16]

   Furthermore, the beneficiaries in the instant case did not allege in their complaint that Ms. Eckes intended the beneficiaries to benefit directly from Cramer's services as an attorney.  See Flaherty, 303 Md. at 139, 492 A.2d at 629-30. Instead, the beneficiaries alleged in the complaint that, "as the only heirs of the Estate of Dennis Webster Eckes, [the beneficiaries] were specifically intended to be the beneficiaries of Cramer's service as attorney for the estate." The beneficiaries' status as the only heirs of Mr. Eckes does not automatically make them third-party beneficiaries of the contract between Cramer and Ms. Eckes. As we noted in Noble, "'there is a critical difference between being the intended beneficiary of an estate and being the intended beneficiary of a contract between a lawyer and his client.'" 349 Md. at 754, 709 A.2d at 1276 (quoting Copenhaver v. Rogers, 238 Va. 361, 384 S.E.2d 593, 596 (Va. 1989)).[*771] A number of jurisdictions, some of which do not ordinarily subscribe to the strict privity theory, have decided the same issue before this Court and have held, as a matter of law, that beneficiaries under a will do not have standing to sue the personal[***17] representative's attorney. See, e.g., Goldberg, 266 Cal. Rptr. at 489 (applying the balancing of factors test); Hopkins v. Akins, 637 A.2d 424, 428-29 (D.C. 1993)(applying the strict privity rule); Neal v. Baker, 194 Ill. App. 3d 485, 551 N.E.2d 704, 706, 141 Ill. Dec. 517 (Ill. App. Ct.)(holding that the third-party beneficiary theory did not apply), appeal denied, [**1285] 555 N.E.2d 378 (Ill. 1990); Goldberger v. Kaplan, Strangis and Kaplan, 534 N.W.2d 734, 738 (Minn. Ct. App. 1995)(applying the balancing of factors test to assist court in determining whether beneficiaries were third-party beneficiaries of the attorney-client relationship); Trask v. Butler, 123 Wash. 2d 835, 872 P.2d 1080, 1085 (Wash. 1994)(applying the balancing of factors test). These courts have reasoned that beneficiaries under a will are not third-party beneficiaries of the attorney-client relationship because the direct purpose of the contract between the attorney and the personal representative is not to provide a benefit to the beneficiaries. See, e.g., Goldberg, 266 Cal. Rptr. at 489; Neal, 551 N.E.2d at 706. In addition, a primary concern addressed by these courts[***18] is the potential conflict of interest that may arise during estate administration between the personal representative and the beneficiaries. See, e.g., Trask, 872 P.2d at 1085; Goldberger, 534 N.W.2d at 739. Finally, these courts reason that the personal representative owes the beneficiaries under a will a duty to act in the best interests of the estate, and where the personal representative's conduct falls below the standard of care the beneficiaries may sue the personal representative for breach of fiduciary duty. See id. "By directing estate beneficiaries to file suit against the personal representative for breach of fiduciary duty, we properly place the emphasis of estate decisionmaking upon the correct individual--the personal representative."  Trask, 872 P.2d at 1085. [*772]

   Although there are not the same problems with proof as in Noble, n7 there are compelling policy reasons for the application of the strict privity rule in the instant case. First, other procedures are available to protect the beneficiaries' interests from malpractice. See Goldberger, 534 N.W.2d at 739. In the instant case, the intermediate appellate court reasoned that the personal [***19]representative's attorney would not be shielded from liability if the beneficiaries had no cause of action as a matter of law because the beneficiaries would be permitted to sue the personal representative for breach of fiduciary duty and the personal representative in turn could sue his or her negligent attorney for malpractice. Ferguson, 116 Md. App. at 110-11, 695 A.2d at 608. We agree. Under § 7-403, "if the exercise of power concerning the estate is improper, the personal representative is liable for breach of his fiduciary duty to interested persons for resulting damage or loss to the same extent as a trustee of an express trust." This remains true even where the personal representative hires an attorney and relies on his or her advice. See Ayers v. Liller, 65 Md. App. 178, 183-84, 499 A.2d 1309, 1312-13 (1985). Thus, where the personal representative's exercise of power in administering the estate is improper and the statute of limitations has not run, beneficiaries under a will could bring an action against the personal representative for breach of fiduciary duty. Any cause of action the beneficiaries may have had in the instant case should have been brought against[***20] the personal representative, the beneficiaries' mother. The beneficiaries cannot attempt to insulate their mother from liability by asserting instead that her attorney breached a duty owed to the beneficiaries. If, however, an attorney gives negligent advice to the personal representative, then he or she as the[*773] client would have a cause of action against the attorney for malpractice. The attorney therefore would not be shielded from liability for malpractice. In addition, beneficiaries under a will may seek removal of the personal representative if he or she is unable or incapable of discharging his or her duties and powers effectively, or "has failed, without reasonable excuse, to perform a material duty pertaining to the office." § 6-306(a)(3) & (6).

n7 In Noble, we noted that "attorney malpractice cases involving nonclients and arising out of will drafting or estate planning require special considerations because the testator/client is dead." 349 Md. at 755, 709 A.2d at 1276. Extrinsic evidence is therefore not admissible to prove that the testator's intent differed from the intent expressed in the will. 349 Md. at 755, 709 A.2d at 1276. Here, however, the personal representative-client is alive unlike the testator/client in Noble.

[***21]

   The strict privity rule also protects the attorney-client relationship. In this case, the intermediate appellate court reasoned that "allowing a beneficiary to sue the personal [**1286] representative's attorney could subject the attorney to an impermissible conflict of interest when the interests of the personal representative, acting on behalf of the estate, conflict with the interests of the beneficiary." Ferguson, 116 Md. App. at 111, 695 A.2d at 608. The personal representative's duty is not to promote the interests of one group of beneficiaries over the conflicting interests of another group. In this capacity, the personal representative is "obligated to communicate with, and to arbitrate conflicting claims among, those interested in the estate." Goldberg, 266 Cal. Rptr. at 489. In representing the personal representative, the personal representative's attorney has the same responsibilities. Id. Allowing a cause of action in the instant case could interfere with the attorney's ability to fulfill his or her duty of loyalty to the client and compromise the attorney's ability to represent the client zealously because the beneficiary often "becomes the opposing party in an adversarial[***22] forum" during the administration of an estate. See Neal, 551 N.E.2d at 706. According to the beneficiaries, the complaint in the instant case alleged facts which do not indicate a conflict among the beneficiaries and the personal representative. The beneficiaries also claim that "it is ethically permissible for an attorney to represent both the fiduciary and the beneficiaries as long as they 'desire the same result,' even if their interests may vary in degree." We disagree.

   "It is the potential for conflict that makes direct suit by the beneficiary unacceptable; the fact that the interests of the[*774] personal representative and the beneficiary may be aligned in a particular case does not render the suit acceptable." Goldberger, 534 N.W.2d at 739 (emphasis in original). Although the personal representative was not a beneficiary in the instant case, the interests of the personal representative and the interests of the beneficiaries were in fact adverse. The beneficiaries filed exceptions to the personal representative's accounting of Mr. Eckes's estate, resulting in an adversarial proceeding. The beneficiaries also hired their own attorney to represent them regarding the[***23] royalty payments from Edgewater. As we stated in Noble, allowing a cause of action by the beneficiaries against the personal representative's attorney would place an undue burden on attorney-client relationship and possibly the legal profession as a whole. 349 Md. at 742, 709 A.2d at 1270. As one court stated:

   "While the fiduciary in the performance of this service may be exposed to the potential of malpractice ..., the attorney by definition represents only one party: the fiduciary. It would be very dangerous to conclude that the attorney, through performance of his service to the administrator and by way of communication to estate beneficiaries, subjects himself to claims of negligence from the beneficiaries. The beneficiaries are entitled to even-handed and fair administration by the fiduciary. They are not owed a duty directly by the fiduciary's attorney." 
 
Goldberg, 266 Cal. Rptr. at 489-90. We therefore conclude that the third-party beneficiary exception does not apply in the instant case, and thus, the strict privity rule applies.

   III.

   Turning to the instant case, the beneficiaries need only to have alleged facts that, if proven, would entitle them to relief[***24] in order to survive a motion to dismiss. See Noble, 349 Md. at 759, 709 A.2d at 1279. If the pleadings do not as a matter of law allege sufficient facts to entitle a party to the relief sought on the claim, a court may grant a motion to dismiss for failure to state a claim pursuant to Maryland Rule 2-322(b). Id.[*775]

    The beneficiaries assert that in the event the third-party beneficiary exception does not apply Cramer represented the beneficiaries' direct interests regarding the royalty payments from Edgewater and Beckett and, thus, an attorney-client relationship existed between Cramer and the beneficiaries. n8 [**1287]As support, the beneficiaries specifically point to paragraphs 38, 46, and 59 of the complaint. These paragraphs provide: [***25]

   "38. Subsequent to Decedent's death Defendant, in 1991, Cramer communicated several times with Edgewater and was informed by William Dodge, the president of Edgewater, that Decedent had entered into a series [of] agreements in 1986.... Dodge further indicated to Cramer that the Plaintiffs were not entitled to royalty payments for Edgewater's updated editions of the Decedent's works of authorship, despite the fact that the new editions were based on the Decedent's underlying works of authorship.

    ***

   46. In approximately July of 1992 Plaintiffs expressed their concern in the matter of the Edgewater payments to Cramer, at which time he indicated to the Plaintiffs that they were not entitled to further trademark and tradename license fee and royalty payments as a result of the death of their father, however, he assured them that no modification, alteration or amendment had been agreed to pertaining to them and forwarded to the heirs a proposed letter to Edgewater which purported to demand further negotiations relative to the payments. [*776]

    ***

   59. Cramer advised Paula Eckes in his capacity as attorney for the Estate that Beckett had offered $25,00[0].00 in full settlement of any[***26] and all claims the estate might have against him. He further advised Paula Eckes that the estate was not entitled to any further split of the royalties received from House of Collectibles and that the offer of Beckett was a reasonable one in light of the circumstances and that in the event of litigation the Estate would be unlikely to prevail." (Emphasis added).
 
We conclude that none of these allegations establishes an attorney-client relationship between the beneficiaries and Cramer. n9 In fact, the complaint itself indicates in several places that Ms. Eckes was Cramer's client, repeatedly refers to Cramer as the "attorney for the Estate," and specifically states that Ms. Eckes employed Cramer "to represent her in handling and administering the estate." The representation agreement attached as an exhibit to the complaint also indicates that Ms. Eckes was Cramer's client. Furthermore, although not determinative, the beneficiaries retained their own counsel with regard to the royalty payments the beneficiaries expected from Edgewater. We therefore hold that the Court of Special Appeals did not err in affirming the trial court's dismissal of the instant case on the ground[***27] that the beneficiaries did not have standing to maintain a cause of action against the personal representative's attorney under the strict privity rule.

n8 The beneficiaries also claim that Cramer performed duties that Ms. Eckes as the personal representative owed directly to the beneficiaries, and thus, Cramer was in privity with the beneficiaries because he in fact acted as a personal representative for the estate. We need not address this contention which was raised for the first time in the beneficiaries' brief in this Court. This issue is not preserved for our review because it was not advanced before the Court of Special Appeals and was not raised in the beneficiaries' petition for writ of certiorari.
n9 We note the possibility that the personal representative's attorney could undertake an obligation to provide legal services for a beneficiary of the estate despite the potential conflict of interest. In such a case, a "duty would be created directly in favor of the beneficiary, an attorney-client relationship would be established, and the beneficiary would have recourse against the attorney for damages...." Goldberg v. Frye, 217 Cal. App. 3d 1258, 266 Cal. Rptr. 483, 489 (Cal. Ct. App. 1990).

[***28]

   JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED. COSTS TO BE PAID BY PETITIONER. 

KYRIAKOS S. ARGYROU a/k/a CHARLES S. ARGYROU v. STATE OFMARYLAND 
NO. 63, SEPTEMBER TERM, 1996
 
COURT OF APPEALS OF MARYLAND
 
349 Md. 587; 709 A.2d 1194; 1998 Md. LEXIS 406

 May  18, 1998, Filed

   PRIOR HISTORY: [***1] Certiorari to the Court of Special Appeals (Circuit Court for  Anne Arundel  County). H. Chester Goudy, Jr., JUDGE.

DISPOSITION: JUDGMENT AFFIRMED, WITH COSTS.

CORE TERMS:  new trial, newly discovered evidence, diligence, confession, credibility, van, theft, newly discovered, identification, maybe, credit cards, exemplar, circumstances surrounding, new trial motion, mall, car-jacked, suspicious, interview, signature, stolen, Maryland Rule, rental agreement, security officer, evidence offered, newly-discovered, trustworthiness, handwriting, car-jacking, photograph, detective

COUNSEL: ARGUED BY T. Joseph Touhey of Glen Burnie, MD, FOR PETITIONER.
 
ARGUED BY Rachel Marblestone Kamins, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General, on brief) of Baltimore, MD, FOR RESPONDENT.

JUDGES: ARGUED BEFORE Bell, C.J.; Eldridge, Rodowsky, Chasanow, * Karwacki, Raker, and Smith, Marvin H. (Specially Assigned), JJ. Opinion by Bell, C.J. in which Eldridge, J. concurs in the result only.

* Karwacki, J. now retired, participated in the hearing and conference of this case while an active member of this Court; after being recalled pursuant to the Constitution, Article IV, Section 3A, he also participated in the decision and the adoption of this opinion.

OPINIONBY: BELL

OPINION: [*589]

   [**1195] The issue that Kyriakos S. Argyrou, a/k/a Charles Argyrou, the petitioner, presents is whether the Circuit Court for Anne Arundel County abused its discretion when it denied his motion, pursuant to Md. Rule 4-331(c) n1 and premised on newly discovered evidence, for a new trial. The evidence upon [*590] which the petitioner relied and denominated[***2] newly discovered consisted of a confession by one Robert Lee Benner, Jr., which was submitted in affidavit and audio taped form to the court. The circuit court denied the petitioner's motion, concluding that the confession did not qualify as newly discovered evidence.

n1 Maryland Rule 4-331(c) provides, in pertinent part:
 
"(c) Newly Discovered Evidence. - the court may grant a new trial or other appropriate relief on the ground of newly discovered evidence which could not have been discovered by due diligence in time to move for a new trial pursuant to section (a) of this Rule:

   * * *
 
(2) in the circuit courts, on motion filed within one year after its imposition of sentence or its receipt of a mandate issued by the court of Appeals or the Court of Special Appeals, whichever is later."

   I.

   The facts are not in dispute. The petitioner was convicted by a jury in the Circuit Court for Anne Arundel County of theft of property valued at more than $300.00. The State's proof established to the[***3] jury's satisfaction beyond a reasonable doubt, that the petitioner was one of two men, n2 who, on June 30, 1992, using the stolen identification of Robert Flens, rented construction equipment, to wit, a jack hammer with four bits, a 2,500-watt generator, an electric breaker, and a cart, from Taylor Rental, located in Glen Burnie, Maryland, which they took away in a van, described as light-colored, i.e. beige or powdery blue, and did not return. Specifically, an employee of Taylor Rental selected the petitioner's photograph from a photographic array, prepared by the detective investigating the case, and identified the petitioner at trial as the man who claimed to be Robert Flens and who signed the rental agreement. Also, the real Robert Flens testified that he had not rented the equipment and that his wallet, containing his identification and credit cards, had been stolen prior to the Taylor Rental theft. The petitioner was sentenced to five years imprisonment and ordered to pay a $1000.00 fine and $2000.00 restitution to Taylor Rental Company. The Court of Special Appeals affirmed his conviction in an unreported opinion.

n2 A third man waited outside in a van.

[***4]

   The petitioner moved for a new trial, citing what he contended was newly discovered evidence. The newly discovered [*591] evidence was, the petitioner asserted, a confession by one [**1196] Robert Benner, in which Benner admitted committing the Taylor Rental theft and, at the same time, fully exonerated the petitioner. The confession was in the form of a notarized statement, his affidavit, taken by the petitioner's attorneys, when Benner came to their office. The confession was corroborated by handwriting exemplars given by Benner; one of his signature, and the other, Benner's signing of the name "Robert Flens." These exemplars were the subject of expert testimony.

   A hearing was held on the motion for new trial. Benner was not present at the hearing, n3 and, so, did not testify. Instead, Benner's notarized statement, i.e. his affidavit, was introduced into evidence. In that statement, after acknowledging that he was on probation and the inculpatory nature of the statements he was about to make, denying that he had been coerced to make them, and recognizing that he could be prosecuted and jailed, and his probation violated as a result, Benner stated that he was involved in the Taylor Rental theft, [***5] along with Rodney Seekford and Michael Raub. Benner claimed Seekford acquired the various Flens identifications, which they used to obtain the construction equipment. He admitted that he signed the rental contract. Benner was asked specifically if the petitioner signed the rental contract, to which he positively stated that he had not.

n3 Benner had been present in court at a prior new trial motion hearing, which was postponed for the purpose of allowing the State to investigate.

   The statement also contained an account of an incident, involving the use of the same credit cards, that occurred at the Marley Station Mall and that concededly involved the petitioner. According to Benner, he and Seekford had gone to the Mall in order to use the stolen credit cards, to acquire, for resale, expensive tennis shoes. Michael Raub was supposed to be waiting outside for them with a car. Benner stated that he became suspicious when a transaction between a clerk and [*592] Seekford took too long, and he saw a security guard approaching[***6] the store where the transaction was occurring and, so, he alerted Seekford and they left. When they exited the Mall, Raub was not in sight, but there were "several police coming out the door and . . . a jeep . . . was right there on top of us." Having seen a man, the petitioner, sitting in a van, Benner said that he "more or less commandeered the van by jumping into it and putting a knife into his [petitioner's] back and telling him to drive." The jeep followed for a time, but then "veered off," at which time Benner told the petitioner to pull into a Wendy's fast food restaurant, the previously agreed destination point where Raub was to meet him and Seekford, should something go wrong. Benner stated that they met up with Raub, who was driving a blue Grand Prix. Benner again exonerated the petitioner, stating that he had nothing to do with the Marley Station matter. n4 He described the petitioner's van as "maroon" in color and the van they used to haul away the construction equipment as "white."

n4 This account is consistent with the account of the car-jacking that the petitioner gave to the police when he reported the incident. Within an hour of the Marley Station Mall incident, the petitioner called the Anne Arundel County Police Department and reported that he had been car-jacked. According to the petitioner, he was sitting in his van at the Marley Station Mall when two men, one wielding a knife, jumped in and forced him to drive down Ritchie Highway, eventually telling him to pull into a Wendy's parking lot. The petitioner also stated that, after he pulled into the Wendy's parking lot, he jumped out of the van and ran, but while running away, he saw the two car-jackers get into a blue car and leave. When he returned to his van, the petitioner claimed, he discovered that sixty dollars were missing from the vehicle.

   Benner was not asked by the petitioner's counsel whether he or Seekford took anything from the petitioner or the van. In a statement given to the Assistant State's Attorney, however, Benner denied taking anything from either.

[***7]

   After one of the petitioner's attorney's testified to the circumstances surrounding the acquisition of the handwriting exemplars, especially that of Benner signing "Robert Flens," noting specifically that the Taylor Rental rental agreement had not been shown to Benner, expert testimony was presented as to whether the same person signed the rental agreement as signed the exemplars. The expert, Katherine Koppenhaver, [*593] having [**1197] been qualified as an handwriting expert, testified without equivocation that it was Benner who signed the name of "Robert Flens" on the June 30, 1992 Taylor Rental contract.

   In addition to the audio-taped statement that it took from Benner, the State offered testimony from two witnesses, Detective Ronald Sappington, who investigated the Taylor Rental matter, and Scott Rowe, the Marley Station Mall security officer who observed Benner and Seekford enter the petitioner's van and the petitioner drive away. Benner's audio-taped statement was more detailed than the one he gave the petitioner's attorneys, perhaps demonstrating, as the petitioner contended, that the State took the "opportunity to cross-examine Mr. Benner," in an effort "to challenge Mr. Benner at length[***8] regarding his alleged involvement in the crime."

   In his statement, Benner stated that he did not know the petitioner and had not seen him before the day that he forced the petitioner, at knife-point, to drive him and Seekford away from the Marley Station Mall. He also stated, however, that about six months after that incident, in the western part of Baltimore City, where he had gone to buy drugs, he saw the petitioner and the van and "it clicked together," i.e., he recognized the petitioner as the person he car-jacked. At that time, Benner maintained that he began making inquiries about the petitioner. Initially Benner said that he sought to discover if the petitioner had identified him to the police as the person who had car-jacked him at the Marley Station Mall. Later, the focus was on what happened to the petitioner. As a result of these inquiries, made of various individuals in the area, Benner learned that the petitioner had been convicted of the Taylor Rental theft and sentenced to five years imprisonment. With that information and having learned who the petitioner's attorney was, Benner said that he went to petitioner's attorney's office and confessed. n5 As to why he did[***9] so, Benner had this to say:
[*594]
 
"I had found out from his attorney. I mean, the night that I was there, he had kids but I'm more or less trying to get my life back. I don't want nobody doing five years for something that they didn't do. I mean, it's     I guess maybe crime is not my, you know, something that I like I do. Maybe I just have the right outlook for it."

n5 According to the statement, Benner learned of the petitioner's plight about three months prior to giving the statement to the State, or no earlier than August 1994. Benner did not act immediately, however. In response to the question what did he do after learning that the petitioner had been sentenced to five years and the name of his attorney, Benner stated:
 
"Nothing. I mean, I sat over a month or so thinking about it and you know, maybe I started to feel guilty after a month or so. And then I     I don't know, maybe it was a mistake I made or whatever but on a whim I decided, you know, maybe I'll try to help the gentleman out."

[***10]

   Later, he gave another reason for coming forward and confessing: Benner said that it was not simply because it bothers his conscience, but also because it could help him get off drugs, which he wanted to do. As he put it,
 
"Well, I mean you know, apparently, you know, I'm going to be incarcerated here for a short period of time. And however short period of time will be time that I'm away from drugs."
 
At the beginning of the interview, Benner had explained why he'd come to the State's Attorney's office:
 
". . . I have a lot of personal problems myself that I'd like to get straightened out, and this is one way that I feel I can go about it. But also, I can't ??? see somebody else actually taking the blame for something I've done. You know, I'm trying to put my life back together and this is something that I don't want to come back in the future. So, I'd like to get it ironed out."

   Benner did not name anyone from whom he received information about the petitioner. Even when pressed, he gave only the names, "Bob," whose last name he claimed not to know, and "Gary or something," again claiming not to know the last name. And he also refused to point out any of the[***11] [*595] persons he said he spoke with to the State, explaining that he was not "trying to get anyone else involved in this."

   [**1198] The State's questioning of Benner leaves no doubt that it did not consider him or his story to be reliable. In that regard, the State inquired why Benner had failed to meet with the Assistant State's Attorney following the postponed hearing on the motion for new trial. Benner had apparently agreed to do so, but did not. Benner also failed to meet with the Assistant State's Attorney two days later, again, as he also had agreed. The interview likewise contained references to Benner's failure to respond to letters the State sent to him. Benner's answers were not very enlightening. As to the first question, for example, he offered only, "I was     yeah, I was a little maybe     caught me a little off guard, maybe a little apprehensive. Thought maybe I should get     try to get an attorney or something before I talked ??."

   The Assistant State's Attorney informed the court that, at the conclusion of the interview, he accompanied Benner down to the cafeteria to get him something to eat and drink. When they returned to the office, he continued, Benner [***12]told him that he was going to take a smoke. The Assistant State's Attorney then informed Benner that he wanted him to remain so that he would be present when the detective who was going to interview Benner arrived. Notwithstanding that Benner stated that he would be glad to cooperate and was simply going to take a smoke, the Assistant State's Attorney asserts that Benner left the building and disappeared, not to be seen again by the State. He also maintains that letters subsequently sent to Benner's home produced no result.

   Testifying at the hearing, Sappington testified that he was involved in the investigation of the Taylor Rental theft. He explained why his attention was drawn to the petitioner as a suspect in that theft - after speaking to Flens, and learning that his credit cards and identification had been used at various stores other than Taylor Rental, including stores in the Marley Station Mall, he also learned that, on July 2, 1992, the petitioner had reported being car-jacked shortly after the [*596] occurrence of an incident at the Marley Station Mall in which the Flens credit cards and identification were used. When asked "when he joined [the petitioner] and the Flens deal[***13] together," Sappington explained:
 
"Uhm, yes. The thing being is that what seemed funny to me was -- is that he was reporting a abduction to where Mr. Flens' identification and credit cards were used in some thefts and attempt thefts, and plus the Taylor Rental case where, uhm, [the Taylor Rental employee], after being showed a photo line-up picks out [the petitioner] as the person who used the identification of Mr. Flens. I don't know what the odds of that would be, but I think it would be really thin, I would think, just in my opinion."
 
He thus thought it more than coincidental that the petitioner, who had been identified with the Taylor Rental theft just two days before, would have been abducted by men who had used the same identification and credit cards as had been used to effect that theft. n6

n6 Detective Sappington explained why he focused on the petitioner as a suspect in the Taylor Rental case. He stated that he learned from speaking with the officer who took the petitioner's report of being car-jacked, that the petitioner was, when he called, "very jumpy and nervous, seemed very jumpy and nervous, like, hyper." That description along with the additional fact of the description, given by the Taylor Rental employee, of one of the suspects in the Taylor Rental theft, i.e. "[a] short white male, five foot six, twenty-seven to twenty-eight years old, very nervous and jumpy," caused Sappington to become suspicious and to suspect that the petitioner might be connected to the Taylor Rental case. His suspicions thus aroused, Sappington said that he showed the Taylor Rental employee who described the men who rented the stolen equipment six photographs, one of which was a photograph of the petitioner. The employee selected the petitioner's photograph as depicting one of the perpetrators of the Taylor Rental theft, the one who signed the rental contract.

[***14]

   Sappington also testified that he attempted, without success, to interview the petitioner concerning his car-jacking complaint. In fact, although he did speak to the petitioner, Sappington asserted that the petitioner declined his invitation to come by his office to discuss the case, and otherwise refused to speak to him about the incident. According to [*597] Sappington, the petitioner claimed to have spoken to a lawyer, whose phone number he purported to give to Sappington. When Sappington [**1199] called the number, a woman answered and stated that she had never heard of either the lawyer or the petitioner. Sappington also testified that the only time the petitioner cooperated in the investigation was following his conviction. At that time, Sappington stated, the petitioner called and made an appointment to give Sappington his handwriting samples; however, the detective was told by the petitioner's counsel "not to talk to [the petitioner] about anything, just take the handwriting sample."

   The Marley Station Mall Security officer testified about the circumstances surrounding the petitioner's "abduction." He testified that, having been alerted by a call from the Athlete's Foot, a store in the[***15] Marley Station Mall, that "they had some suspicious subjects in the store, possibly using a stolen credit card," he went to the store. Finding no one there at that time, the officer continued, he obtained a description of two men who had been in the store attempting to make a purchase in excess of $300.00. The officer stated that another security officer radioed another description of two men whom that security officer had observed in the Foot Locker. Armed with that description, the officer located them and followed them from that store. The men, he observed, "walked, uh, rather hurriedly. They weren't running, it was just a quick pace, uh, directly to one of the mall exits." Once outside on the sidewalk, the officer stated that the men "appeared to be looking around for the car, for a ride, or where they -- they were looking over the parking lot itself, trying -- it appeared to me that they were looking for -- their car." After about ten seconds, he concluded "that, uh, someone got their attention." Although the officer did not see the wave, he assumed that it was done with a wave; he testified initially that he "didn't hear any voices, or any yells or anything like that, any whistles[***16] or __" and later that, "I didn't hear -- a call, I didn't hear a whistle. I'm assuming it was -- it was a wave or he just stood there long enough to be seen. I don't know." The officer believed that what got the men's attention was a light [*598] colored van, to which they walked quickly and entered the front passenger door. He further testified that there did not appear to be any animosity between the driver of the van and the two men who entered it as passengers, and that he did not observe the use of any force. And the driver of the van did not, he said, give any distress signal. The officer stated that he did not see the driver of the van, but he did note the license tag number.

   The trial court denied the petitioner's motion for a new trial. It reasoned:
 
"As I said before, I believe the testimony of Mr. French [petitioner's attorney] with regard to the scenario that he testified with regard to the person that came in and told him that he [Benner] was the signer of the name in question in this case and I believe the testimony with regard to the fact that [Benner] did sign in front of him [French], and in reviewing the signature I find that the signature is remarkably like[***17] that of the document on the case. I believe that if the testimony of that signer was elicited before a jury it may well produce a verdict of acquittal, as opposed to a verdict of guilty that occurred in this case.

   "What I do not believe is that this is newly discovered evidence. I do not believe the defendant learned of the identity of this person and this testimony . . . after the trial of the case. The burden is upon the defendant to prove this at this time, and I find that the defendant has not met that burden that it's newly discovered evidence.

   "Therefore, I deny the motion for new trial. . . . I take [the affidavit] as evidence and take that if that fellow [Benner] went in and testified before the jury I think very well there would be a different verdict in this case . . . I just find that it was not newly discovered evidence. Now, I think it's upon him [the petitioner] to . . . establish that at this time . . . and I find that it was not newly discovered." n7

n7 At the hearing on the motion for new trial, the trial court expressed concern whether an affidavit, rather than live testimony, suffices as newly discovered evidence for purposes of the Rule. Indeed, it asked counsel to address the question whether the Rule contemplates that the newly discovered evidence be evidence that is admissible at trial. Although the petitioner filed a memorandum addressing that issue, the trial court did not decide the issue. Instead, it found the evidence offered to be sufficient to permit the grant of a new trial had it been newly discovered. Consequently, we will not consider this threshold issue initially raised by the court.

[***18] [*599]

   [**1200] His motion for reconsideration having been denied, the petitioner noted an appeal to the Court of Special Appeals. That court affirmed the judgment of the circuit court in an unreported opinion, holding that the trial court did not abuse its discretion when it determined that the evidence offered as newly discovered evidence was not, in fact, newly discovered. We granted certiorari to consider this important question. We shall affirm.
 
   II

   That a new trial may be granted in a criminal case tried before a jury cannot be doubted and, indeed, is well settled.  In re Petition for a Writ of Prohibition, 312 Md. 280, 308, 539 A.2d 664, 677, 686 (1988). See also Ford v. State, 12 Md. 514 (1859); Md. Code (1957, 1995 Repl. Vol.) Art 27, § 594. n8 A trial court has wide latitude in considering a motion for new trial and may consider a number of factors, including credibility, in deciding it; thus, the court has the authority to weigh the evidence and to consider the credibility of witnesses in deciding a motion for a new trial. 312 Md. at 325-26, 539 A.2d at 686. In In Re Prohibition, the new trial motion was based on the contention that the jury's verdict was against the weight[***19] of [*600] the evidence. The trial courts also have authority to weigh the evidence and to consider credibility of witnesses when the motion is grounded on newly discovered evidence. Yorke v. State, 315 Md. 578, 582, 556 A.2d 230, 231-232 (1989). See also Jones v. State, 16 Md. App. 472, 477, 298 A.2d 483, 486 (1973) ("It is essentially the function of the trial judge to evaluate and assess the newly discovered evidence and where such evidence consists of testimonial evidence from a witness allegedly discovered after the trial has been concluded, it is for the trial judge to determine the materiality and the credibility of such testimony."); Jones v. United States, 279 F.2d 433, 436 (4th Cir.), cert. denied , 364 U.S. 893, 81 S. Ct. 226, 5 L. Ed. 2d 190 (1960) ("Where there is a grave question of the credibility of after-discovered evidence . . . the role of the trial judge is that of the fact-finder.").

n8 Maryland Code (1957, 1995 Replacement Volume) Article 27, § 594 provides:
 
"All motions for new trials in criminal cases shall be heard by the court in which said motion is pending within ten days after the filing of said motion, or, in the event of an agreed statement of the evidence, or a statement of the evidence certified by the judge before whom the case was tried, is filed, within ten days after the filing of said statement; provided, however, that the time for the hearing of any such motion may be extended either by an agreement in writing, signed by the State's Attorney of the county or the City of Baltimore, wherein such motion is pending, and by the defendant or his counsel, or by an order signed by the trial judge."

[***20]

   It may be said that the breadth of a trial judge's discretion to grant or deny a new trial is not fixed and immutable, it will expand or contract depending upon the nature of the factors being considered, and the extent to which its exercise depends upon the opportunity the trial judge had to feel the pulse of the trial, and to rely on his or her own impressions in determining questions of fairness and justice.  Buck v. Cam's Rugs, 328 Md. 51, 58-59, 612 A.2d 1294, 1297. Of course, the exercise of the discretion is reviewable for abuse.  Wiggins v. State, 324 Md. 551, 570, 597 A.2d 1359, 1368 (1991); Yorke, 315 Md. at 590, 556 A.2d at 235-236; Stevenson v. State, 299 Md. 297 at 304, 473 A.2d 450,
 
   Maryland Rule 4-331(c) provides for the grant of a new trial, or other appropriate relief, on the basis of newly discovered evidence, but only if the prescribed requirements are met. To qualify as "newly discovered," evidence must not have been discovered, or been discoverable n9 by the exercise of [*601] [**1201] due diligence, within ten days after the jury has returned a verdict. n10 In addition, the motion premised on newly discovered evidence must have been filed in the circuit court, within[***21] the later of one year after the imposition of sentence or the issuance of a mandate by the appropriate appellate court. Maryland Rule 4-331(c)(2). Case law has delineated other essential requirements. The evidence offered as newly discovered must be material to the result and that inquiry is a threshold question.  Stevenson v. State, 299 Md. 297, 302, 473 A.2d 450, 452 (1984). That means that it must be more than "merely cumulative or impeaching." Jones v. State, 16 Md. App. 472, 477, 298 A.2d 483, 486 (1973); Love v. State, 95 Md. App. 420, 432, 621 A.2d 910, 917 (1993). In addition, the trial court must determine that "the newly discovered evidence may well have produced a different result, that is, there was a substantial or significant possibility that the verdict of the trier of fact would have been affected." Yorke, 315 Md. at 588, 556 A.2d at 235. n11

n9 Exculpatory evidence known, at the time of trial, or, as in Maryland, prior to the expiration of the time for filing a motion for new trial, though unavailable, in fact, is not newly discovered evidence, and, thus, will not suffice as a ground on which to grant a new trial. Jones v. Scurr, 316 N.W.2d 905, 909 (Iowa, 1982); State v. Lufkins, 309 N.W.2d 331, 336 (S.D. 1981); State v. Sparks, 171 W. Va. 320, 298 S.E.2d 857, 861 (W.Va., 1982).

[***22] 

n10 Maryland Rule 4-331(a) prescribes when a motion for new trial must be filed. It provides:
 
(a) Within ten days of verdict. - On motion of the defendant filed within ten days after a verdict, the court, in the interest of justice, may order a new trial.
 
Consequently, since section (c) of the Rule defines the outside limit of discoverability for purposes of newly discovered evidence in terms of when the motion for new trial must be filed, it follows that any evidence that was incapable of discovery before that date may be determined to be "newly discovered evidence."

n11 Although the factor relating to the outcome of the case is different, it being somewhere in between the "might affect" standard and the "probably would affect" standard, see, Yorke v. State, 315 Md. 578, 586-588, 556 A.2d 230, 234-235 (1989), in all other respects, the factors we apply are compatible with the tests applied in the majority of our sister States and the federal courts. See, e.g. See State v. Estrada, 537 A.2d 983, 985 (R.I. 1988); State v. Sparks, 171 W. Va. 320, 298 S.E.2d 857, 860 (W.Va., 1982); State v. Frazier, 162 W. Va. 935, 253 S.E.2d 534, 537; (W.Va. 1979), State v. Brown, 528 A.2d 1098, 1104 (R.I. 1987) See also Stanford v. Iowa State Reformatory, 279 N.W.2d 28, 32-33 (Iowa 1979)

[***23] [*602]

   But, like materiality, see, Stevenson, 299 Md. at 302, 473 A.2d at 452, whether the proffered evidence is, in fact, "newly discovered evidence which could not have been discovered by due diligence," is a threshold question. Thus, 
 
"unless and until there is found to be 'newly discovered evidence which could not have been discovered by due diligence,' one does not weigh its significance. It is only when this definitional predicate has been established that the provisions of Rule 4-331(c) even become involved. Without this definitional predicate, the relief provided by subsection (c) is not available, no matter how compelling the cry of outraged justice may be."
 
Love, 95 Md. App. at 432, 621 A.2d at 916-17. The question of whether evidence is newly discovered has two aspects, a temporal one, i.e., when was the evidence discovered?, and a predictive one, i.e., when should or could it have been discovered? It is to the latter that the requirement of "due diligence" has relevance. Although a critical concept in "newly discovered evidence" jurisprudence, we have yet to define it in that context or, for that matter, in any other Rule using that term, [***24] i.e., Maryland Rule 2-535(c) n12; Maryland Rule 3-535(c) n13.

n12 "(c) Newly-discovered evidence. - On motion of any party filed within 30 days after entry of judgment, the court may grant a new trial on the ground of newly-discovered evidence that could not have been discovered by due diligence in time to move for a new trial pursuant to Rule 2-533."

n13 "(c) Newly-discovered evidence. - On motion of any party filed within 30 days after entry of judgment, the court may grant a new trial on the ground of newly-discovered evidence that could not have been discovered by due diligence in time to move for a new trial pursuant to Rule 3-533."

   The Court has provided guidance as to its meaning, however. Addressing the timeliness of probation revocation proceedings, this Court has equated "due diligence" with "reasonable promptness so as to avoid prejudice to the defendant" and "reasonableness." State v. Berry, 287 Md. 491, 500, 413 A.2d 557, 562-563 (1980). See, State v. Miller, 289 Md. 443, 445, [*603] 424 [***25]A.2d 1109, 1111 (1981); Clipper v. State, 295 Md. 303, 312, 455 A.2d 973, 978 (1983). Similarly, our predecessors defined "forthwith," as used in the notice [**1202] requirement of an insurance policy, to mean "with due diligence, or without unnecessary procrastination or delay, under all the circumstances of the case." Edwards v. Balto, Fire Ins. Co., 3 Gill 176, 188 (1845). See Ervin v. Beland, 251 Md. 612, 617, 248 A.2d 336, 339-340 (1968). Maryland Rule 2-214(i), pertaining to motions to suppress in the deposition context, is consistent, as it requires such motions to be made "promptly after the defect is or with due diligence might have been ascertained." So, too, is the discovery rule, see Poffenberger v. Risser, 290 Md. 631, 431 A.2d 677 (1981), pursuant to which the statute of limitations is activated based on actual knowledge, that is, express cognition, or awareness implied from
 
"knowledge of circumstances which ought to have put a person of ordinary prudence on inquiry (thus, charging the individual) with notice of all facts which such an investigation would in all probability have disclosed if it had been properly pursued. . . . In other words, a [person] [***26] cannot fail to investigate when the propriety of the investigation is naturally suggested by circumstances known to him; and if he neglects to make such inquiry, he will be held guilty of bad faith and must suffer from his neglect."
 
Id. at 636, 431 A.2d at 680, quoting Fertitta v. Bay Shore Dev. Corp., 252 Md. 393, 402, 250 A.2d 69, 75 (1969), in turn quoting Blondell v. Turover, 195 Md. 251, 257, 72 A.2d 697, 699 (1950) (citations omitted).

   There is also guidance to be gained from the use of the term "due diligence" by the Legislature in other contexts. See, e.g., Maryland Code (1975, 1990 Replacement Volume) § 1-201 (27) of the Commercial Law Article; n14 Maryland Code (1995, 1997 [*604] Replacement Volume) § 6-108 of the Insurance Article; n15 Maryland Code (1957, 1997 Replacement Volume) Art. 25 § 68 (d)(3); n16 Maryland Code (1991) § 9-313(d) of the Labor and Employment Article. n17

n14 Maryland Code (1975, 1990 Replacement Volume) § 1-201 (27) of the Commercial Law Article provides:
 
"(27) Notice, knowledge or a notice or notification received by an organization is effective for a particular transaction from the time when it is brought to the attention of the individual conducting that transaction, and in any event from the time when it would have been brought to his attention if the organization had exercised due diligence. An organization exercises due diligence if it maintains reasonable routines for communicating significant information to the person conducting the transaction and there is reasonable compliance with the routine. Due diligence does not require an individual acting for the organization to communicate information unless such communication is part of his regular duties or unless he has reason to know of the transaction and that the transaction would be materially affected by the information."
[***27] 

n15 That section provides:
 
"(c) Payment due in immediately available funds.

   (1) Subject to paragraph (2) of this subsection, if an insurer that is required under § 2-113 of this article to pay a premium tax on or before the due date in immediately available funds fails to do so, the Commissioner shall assess a penalty and interest as provided in subsection (a) of this section on the unpaid tax from the date the tax is due to the date on which the funds from the tax payment become available to the State.

   (2) The Commissioner may waive the penalty and interest on late payments under this subsection if the insurer proves that it:

   (i) made a good faith effort to comply with the requirements of § 2-113 of this article; and

   (ii) exercised due diligence to initiate payment correctly and on a timely basis."
n16 That section provides:
 
"If the WSSC is unable with due diligence to effect service of process under paragraph (1) of this subsection, a complaint or order shall be served by publication reasonably tailored to provide actual notice to the person to whom the complaint or order is directed."
n17 Pursuant to that section,
 
"If the Commission determines that, after due diligence an insurer, including the Injured Workers' Insurance Fund, or a self-insurer is unable to timely submit the report required under subsection (b) of this section, the Commission may:
 
(1) waive the fine specified under subsection (c) of this section; and
(2) grant the insurer or self-insurer the additional time that may be necessary."

[***28]

   From the foregoing, it is clear that the concept of "due diligence" has both a time component and a good faith component; [*605] the movant for a new trial must not only act in a timely fashion in gathering evidence in [**1203]support of the motion, but he or she must act reasonably and in good faith as well. Thus, we believe that, as used in Maryland Rule 4-331(c), "due diligence" contemplates that the defendant act reasonably and in good faith to obtain the evidence, in light of the totality of the circumstances and the facts known to him or her.

   III

   As we have seen, the trial court denied the motion for new trial. It accepted the testimony authenticating the Benner signatures and the circumstances under which they were given and the expert testimony indicating that it was Benner that signed the Taylor Rental agreement. It also accepted Benner's confession as evidence and expressed the belief that, if Benner were to have been called to testify consistent with it, the result of the trial "may well [have produced] a verdict of acquittal, as opposed to a verdict of guilty that occurred in this case." The court thus determined the evidence to be material and would have the requisite effect[***29] on the result. It did not believe, however, that the proffered evidence was newly discovered, that "the petitioner learned of the identity of [Benner] . . . after the trial of the case." The court does not explain or give any reasons for its disbelief; it simply says that the burden is on the petitioner to prove that the evidence offered is, in fact, newly discovered and that he has not carried that burden.

   The petitioner argues that the State presented no evidence at the hearing on the new trial motion, or at any other time to suggest, not to mention, establish, that he could have discovered Benner, or obtained Benner's statement any earlier than he did. Moreover, pointing to the trial court's finding with respect to the possibility that a different result would have been produced, the State's response to his motion for reconsideration, i.e., "The State agrees that statements elicited at different times from Mr. Benner by both counsel and this writer, if presented to a jury might produce a different verdict," and the comparison of Benner's handwriting exemplar [*606] to that contained on the Taylor Rental contract, the petitioner asserts:
 
"there is no dispute as to the credibility, [***30]  admissibility, scope, persuasiveness, weight, materiality, or effect of this evidence. The evidence therefore confirms the fact that [the petitioner] did not commit this crime." (Emphasis in original.)
 
He urges this Court to reverse the judgments below and, thus, prevent the incarceration of a person who did not commit the crime for which he has been convicted.

   The State argues that affirmance of the trial court's judgment is the proper result consistent with Maryland rule 4-331(c). It contends that:
 
"To afford [the petitioner] a new trial would render nugatory the requirement that evidence be newly discovered in order to qualify as a basis for relief under Maryland Rule 4-331(c) and abolish the fundamental principles that the assessment of the credibility of such evidence is the role of the fact finder, not the appellate courts."

   Benner did not appear, as we have seen, at the second motion's hearing and, so, his confession was before the court only in the form of a notarized statement and an audio-taped statement. And, judging from the court's comments concerning the effect that Benner testifying at trial would have on the outcome of the trial, it may[***31] be inferred that the court did not find the entire confession incredible. Indeed, the comments concerning the similarity of the signature on the Taylor Rental agreement and the exemplars given the petitioner's counsel would suggest that it believed that Benner signed the rental agreement. Thus, it would appear that Benner's credibility was not the decisive factor in the court's denial of the petitioner's new trial motion. Rather, it clearly seems to be that the court distrusted the circumstances surrounding the confession; it found the timing of it untrustworthy and suspicious. While the confession may have largely been true, the court was not satisfied that, viewed from the perspective of Rule 4-331(c), it was timely. In short, the court focused not on the credibility of the confession in all of its details; it was, instead, focused [*607] on the trustworthiness of the totality of the circumstances giving rise to the confession. In so doing, the court did not abuse its discretion.

   [**1204] To be sure, the credibility determinations of the trial court in this case are important. It is obvious that, in reaching its threshold determination, the court believed the witnesses for the state. Indeed, it [***32]was that testimony which, it must be inferred, caused the court to distrust the timing and circumstances of the confession. The testimony of the Mall security officer permitted the court to conclude that the petitioner knew, and was in cahoots with, Benner and Seekford and, in fact, that it was the petitioner who was supposed to pick them up, as he did.

   Sappington's testimony provided the basis for the court to infer that the petitioner did not act with due diligence or in good faith. It also may have provided an explanation of why the petitioner, though a part of the conspiracy, would report a car-jacking. Notwithstanding his having reported the alleged car-jacking, his subsequent refusal to cooperate was, to say the least, suspicious. And the petitioner's uncooperativeness takes on an even more ominous aspect, and becomes quite understandable, once it is learned that the petitioner has been identified as one of the principals in the Taylor Rental theft. The court could, and obviously did, believe that it was unnecessary for the petitioner to act with due diligence, or in good faith, to locate the person who signed the Taylor Rental agreement because he did not have to; he already, [***33]and always, knew who it was - he was his confederate. Moreover, the court was aware, from the petitioner's trial, that three men were involved in the Taylor Rental theft and it could have inferred, from the security officer's testimony, that there were three involved in the Mall incident as well. In any event, the court believed quite clearly that the petitioner and Benner were both involved in the two incidents. Its conclusion that the petitioner did not learn of Benner's identity after the trial of the case can be explained only in that way. n18

n18 Benner stated in both statements that he did not know the petitioner, had never seen him before the Marley Mall incident, and had not spoken to him since. Certainly, the trial court did not credit that part of Benner's affidavit or statement.

[*608]

   The cases that have addressed this issue have focused not simply on the credibility of the person offering the exculpatory evidence, but on the credibility or trustworthiness of the evidence itself, as well as the motive, or [***34] other impeaching characteristics, of those offering it. When the evidence is offered and the circumstances surrounding it are matters that have been found to inform the former inquiry. In United States v. Oliver, 683 F.2d 224 (7th Cir. 1982), a letter exculpating the defendant was offered in support of the defendant's motion for new trial. In denying the motion, the court noted "serious questions concerning trustworthiness and motive" surrounding the letter, that the letter was not sent until after trial, and that the author was the defendant's friend and a felon, concluding that an "aura of suspicion and doubt engulfed" the evidence. See Taul v. State, 862 P.2d 649, 659 (Wy. 1993) (credibility of new evidence); Horton v. State, 249 Ga. 871, 295 S.E.2d 281, 287-88 (Ga. 1982), cert. denied, 459 U.S. 1188, 103 S. Ct. 837, 74 L. Ed. 2d 1030 (1983) (same); State v. Noble, 591 S.W.2d 201, 206 (Mo. Ct. App. 1979) (credibility of confession); State v. Jager, 91 N.W.2d 337, 339-41 (N.D. 1958) (time and circumstances of the affidavit of confession); United States v. Roulette, 75 F.3d 418, 425 (8th Cir), cert. denied, 519 U.S. 853, 117 S. Ct. 147, 136 L. Ed. 2d 93 (1996)[***35] (newly discovered evidence lacked credibility); United States v. Pierce, 62 F.3d 818, 824-25 (6th Cir. 1995), 516 U.S. 1136, 116 S. Ct. 965, 133 L. Ed. 2d 886 (1996) (trustworthiness of newly discovered evidence - "evasive, inconsistent, and implausible"); United States v. Steel, 458 F.2d 1164, 1166 (10th Cir. 1972) (credibility of the newly discovered evidence); United States v. Miller, 277 F. Supp. 200, 209 (D. Conn.1967), appeal dismissed, 411 F.2d 825 (2nd Cir. 1969) (circumstances surrounding the proffered confession).

   The petitioner's contention that the State failed to produce any basis for challenging, not to mention discrediting, the evidence he produced in support of his motion for new [*609] trial must be rejected. As we have seen, the State produced two witnesses, whose testimony the court obviously credited. Because their testimony was not at all consistent with Benner's confession and, in [**1205]fact, if believed, substantially undermined it, it follows that not only did the State challenge the confession, but that challenge was sufficient to convince the court that Benner's confession was not newly discovered evidence. As the proponent of the new trial motion, [***36] the petitioner had the burden of establishing, among other things, that the confession was newly discovered evidence. The petitioner simply failed to carry it. Accordingly, the trial court did not abuse its discretion when it denied the petitioner's motion for new trial.

   JUDGMENT AFFIRMED, WITH COSTS.
 
Judge Eldridge joins in the result only. 

MONTGOMERY COUNTY DEPARTMENT OF SOCIAL SERVICES v. L.D.;T.E.P. v. ANNE ARUNDEL COUNTY DEPARTMENT OF SOCIAL SERVICES; D.N. v. FREDERICKCOUNTY DEPARTMENT OF SOCIAL SERVICES 
No. 75, September Term, 1997
 
COURT OF APPEALS OF MARYLAND
 
349 Md. 239; 707 A.2d 1331; 1998 Md. LEXIS 239

 April  9, 1998, Filed

   PRIOR HISTORY: Appeal from the Circuit Court for Montgomery County,  Anne   Arundel  County and Frederick County.

DISPOSITION: [***1] THE ORDER OF THE CIRCUIT COURT FOR MONTGOMERY COUNTY IN APPEAL NO. 75, MONTGOMERY COUNTY DEPARTMENT OF SOCIAL SERVICES V. L.D., IS AFFIRMED; THE ORDER OF THE CIRCUIT COURT IN T.E.P. V. ANNE ARUNDEL COUNTY DEPARTMENT OF SOCIAL SERVICES IS REVERSED; THE ORDER IN D.N. V. FREDERICK COUNTY DEPARTMENT OF SOCIAL SERVICES IS REVERSED; CASES OF T.E.P. V. ANNE ARUNDEL COUNTY DEPARTMENT OF SOCIAL SERVICES AND D.N. V. FREDERICK COUNTY DEPARTMENT OF SOCIAL SERVICES ARE REMANDED TO THE RESPECTIVE CIRCUIT COURTS FOR FURTHER PROCEEDINGS; COSTS IN EACH CASE ARE TO BE PAID BY THE RESPECTIVE DEPARTMENTS.

CORE TERMS:  registry, neglect, child abuse, contested case, database, abuser, suspected, judicial review, unsubstantiated, suspected child abuse, regulation, social services, administrative hearing, child protective services, household, Family Law Article, notified, stored, neglector, computerized, perpetrator, printout, display, contest, plain meaning, child neglect, deactivated, accessible, inclusion, investigating

COUNSEL: ARGUED BY: Sandra Barnes, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General, on brief) of Baltimore, MD. FOR PETITIONER.
 
ARGUED BY: Richard S. O'Connor of Rockville, MD; ARGUED BY: Christyne L. Neff (Kahn, Smith & Collins, P.A.) of Baltimore, MD;. ARGUED BY: Joseph F. Devlin (Brendan J. Clary) of Glen Burnie, MD, all on brief, FOR RESPONDENTS.

JUDGES: ARGUED BEFORE: Bell, C.J.; Eldridge, Rodowsky, Chasanow, Raker, Wilner, and Cathell, JJ. Opinion by Cathell, J.

OPINIONBY: CATHELL

OPINION:  
[*241] [**1332] Opinion by Cathell, J.

   Filed: April 9, 1998
  
The instant case arises from the consolidation of three appeals involving individuals accused of child abuse or neglect: Montgomery County Department of Social Services v. L.D., T.E.P. v. Anne Arundel County Department of Social Services, and D.N. v. Frederick County Department of Social Services. n1 In each of these cases, the individuals have been the object of child abuse or child neglect investigations by the respective local[***2] departments, and in each of the cases, the investigation resulted in local department findings of either "indicated" or "unsubstantiated." These appeals follow from each individual's petition in the circuit court for judicial review of the local department's actions with respect to the inclusion of the petitioners' names on databases that they contend are "central registries."

n1 In this opinion, we shall sometimes refer to the Montgomery County Department of Social Services as MCDSS, to the Anne Arundel County Department of Social Services as AACDSS, and to the Frederick County Department of Social Services as FCDSS, or each as "departments" or "local departments," interchangeably.

   Before our discussion of the law and resolution of the issues of this appeal, we shall describe briefly the procedural history and questions presented in each case.

   I. Facts and Procedural History

   Montgomery County Department of Social Services v. L.D.

   1. Procedural History
 
Pursuant to sections[***3] 5-706.1 and 5-706.2 of the Maryland Code (1984, 1991 Repl. Vol., 1997 Supp.) of the Family Law Article, n2 the Office of Administrative Hearings (OAH) affirmed [*242] MCDSS's n3 finding that L.D., a day care provider, was responsible for "indicated" neglect. L.D. filed a petition for judicial [**1333] review in the Circuit Court for Montgomery County. L.D.'s appeal was stayed pending this Court's decision in C.S. v. Prince George's County Department of Social Services, 343 Md. 14, 33, 680 A.2d 470, 480 (1996), where we held that section "5-715 provides a right to a contested case hearing" before entering the name of an alleged child abuser or neglector in a central registry.

n2 All statutory references shall be to the Family Law Article unless otherwise indicated.

 n3 The Montgomery County Department of Social Services is now known as the Montgomery County Department of Health and Human Services. For the purpose of consistency within this opinion, we shall refer to the agency by its former title or, alternatively, MCDSS.

[***4]

   In reaction to our opinion in C.S., the Department of Human Resources (Department or DHR), deactivated the Child Abuse and Neglect Central Registry (Central Registry). n4 MCDSS then notified L.D. that L.D.'s name would not be entered into the Central Registry because it had been deactivated. L.D.'s name, however, would be listed along with the local department's findings on a computerized central database known as the Automated Master File (AMF). MCDSS then moved to dismiss L.D.'s petition for judicial review for lack of subject matter jurisdiction on grounds that because L.D.'s name would no longer be entered on the Central Registry, C.S.'s requirement that a local department hold a contested case hearing was no longer applicable and because sections 5-706.1 and 5-706.2, the statutory provisions authorizing a limited hearing at which an accused individual can contest local department findings, do not authorize judicial review.

n4 In the past, the Social Services Administration (SSA) within DHR maintained the now-defunct central registry called the "Child Abuse and Neglect Central Registry." For purposes of this opinion, we shall refer to this registry as "the Central Registry," and shall refer to central registries in general, including the Central Registry and any other central registry maintained by the SSA or local departments as "central registries."

[***5]

   The Circuit Court for Montgomery County denied MCDSS's motion. The court found that MCDSS's entry of the names of [*243] individuals found by MCDSS to have committed child abuse or neglect into the AMF or the Client Information System (CIS), n5 which could be accessed by agencies and other entities throughout the state, constituted an entry into "a central registry." The court further found that, under C.S., the inclusion of L.D.'s name on this registry invoked a right to a "contested case" hearing under the Administrative Procedure Act, Maryland Code (1984, 1995 Repl. Vol., 1997 Supp.), sections 10-201 through 10-227, State Government Article (SG). MCDSS noted a timely appeal to the Court of Special Appeals, and this Court granted the local department's Petition for Writ of Certiorari before that court heard arguments in the matter.

n5 The Automated Master File and the Client Information System are computerized statewide databases, which we shall describe further in our discussion, infra.

   2. Questions Presented
 
MCDSS[***6] presents the following questions for our review:

   1. May local departments maintain files relating to child abuse and neglect investigations and reference those files in a computerized data base without triggering a right to a contested case hearing and judicial review?

   2. Absent a showing that a Chapter 318 hearing affects any right, entitlement, benefit, or license due under law, does the judiciary have an inherent right to review a local department's investigation of a report of suspected child abuse or neglect?
 
Because of our ultimate resolution in this case, it is unnecessary for us to address directly MCDSS's second question.
 
D.N. v. Frederick County Department of Social Services

   1. Procedural History
 
D.N. is a tenured public school teacher originally found by FCDSS as responsible for the indicated abuse of a student. The accusation arose out of an incident in which D.N., an [*244] industrial arts teacher for the hearing impaired, burned a student in a shop class by a hot tool D.N. was bringing to the student for the student's use in the class. According to D.N., the contact was accidental. Complicating the issue was what D.N. perceived as a misunderstanding [***7] regarding a distinction in American Sign Language (ASL) vocabulary and the student's misinterpretation of an ASL sign as demonstrating D.N.'s intent to burn the student. A FCDSS caseworker [**1334] determined that the contact was intentional and made a finding of "indicated" child abuse.

   FCDSS notified D.N. of its finding. D.N. filed an appeal with the OAH, requesting a contested case hearing. As a result of the first stage of that appeal, FCDSS notified D.N. that it had conducted a review of its records in the case and that its finding would remain as "indicated." After an in camera review by the OAH, the OAH likewise notified D.N. that FCDSS's finding would not be modified. Finally, after D.N. submitted supporting memoranda and made a fifteen minute oral argument before an Administrative Law Judge (ALJ), the ALJ determined that there were serious flaws in FCDSS's investigative process, but because she did not have the authority to order such a contested case hearing, only reduced MCDSS's finding to "unsubstantiated."

   D.N. filed a petition for judicial review in the Circuit Court for Frederick County. A hearing on that petition was stayed pending our decision in C.S., 343 Md. 14, [***8] 680 A.2d 470. After we filed our opinion in that case, FCDSS notified D.N. that D.N.'s name would not be entered on the Child Abuse and Neglect Central Registry. FCDSS retained D.N.'s name and investigation records, however, on the AMF/CIS registries. FCDSS then filed a motion to dismiss D.N.'s petition for judicial review. In an opposing motion for summary judgment, D.N. requested that the trial judge remand the case to the OAH for a "contested case" hearing pursuant to the APA. The trial judge granted FCDSS's motion to dismiss, but in his oral ruling from the bench, acknowledged the need for "further direction from the appellate court . . . . What you [*245] really need is for the Court of Special Appeals, or hopefully, Court of Appeals, to take this up and clarify what C.S. means."

   D.N. timely appealed the circuit court's denial of its petition for judicial review to the Court of Special Appeals. As with the other two cases at hand, we granted Writ of Certiorari and consolidated all three cases before that court heard arguments in the matter.

   2. Questions Presented
 
D.N. presents the following questions for our review:
 
[1.] May the local departments of social services[***9] elude the Court's holding in C.S. v. Prince George's County Department of Social Services, 343 Md. 14, 680 A.2d 470 (1996), that, "[Family Law] Section 5-715 provides an alleged abuser with a separate and independent right to an administrative hearing before his or her name may be entered into a central registry[,]" and that "the hearing under [section] 5-715 qualifies as a 'contested case' hearing under the APA [,]" by disbanding one child abuse registry while continuing to register the child abuse finding in other State-wide central databases?
 
[2.] Does a public school teacher have a right, under State law and the State and federal constitutions, to a contested case hearing prior to a local department of social services registering a child abuse finding against that teacher when the public school employer has free access to that child abuse finding and when there is a resultant threat to employment and de facto loss of employment opportunity for that public school teacher?
 
[3.] Is there a right to petition for judicial review from a . . . quasi-judicial decision of the Office of Administrative Hearings regarding the finding that a person is a child abuser, [***10] where that decision is a final one as delegated to OAH by a State agency, and where interpretation of State law and rights guaranteed under State and federal constitutions are at issue?

   [*246] Because of our resolution of D.N.'s first question, we shall not address the third question or resolve directly the second question. 
 
T.E.P. v. Anne Arundel County Department of Social Services

   1. Procedural History
 
T.E.P., a private school teacher, was classified by AACDSS as an "indicated" abuser after an in-school paddling of a student by [**1335] T.E.P. Although criminal charges were filed against T.E.P., a District Court judge dismissed those charges at a preliminary hearing.
 
T.E.P. appealed AACDSS's findings pursuant to sections 5-706.1 and 5-706.2. The ALJ upheld the findings, and T.E.P. sought judicial review of that decision in the Circuit Court for Anne Arundel County. AACDS advised T.E.P., after this Court's decision in C.S., that T.E.P.'s name would not be entered into the Child Abuse and Neglect Central Registry because that registry had been deactivated. AACDSS then moved to dismiss T.E.P.'s petition for judicial review, arguing that T.E.P. "is not entitled under[***11] C.S. to a contested case hearing before OAH or to judicial review of decision rendered in the Chapter 318 hearing." AACDS informed T.E.P., however, that T.E.P.'s name would be entered in its "current registry."

   The circuit court granted AACDSS's motion. T.E.P. noted a timely appeal to the Court of Special Appeals. This Court granted the local department's Petition for Writ of Certiorari and consolidated review with the L.D. and D.N. cases before the Court of Special Appeals heard argument.

   2. Questions Presented
 
T.E.P. presents the following questions for our review:
 
1. Are the statewide computer databases classifying individuals as child abusers, "central registries" under Family Law Article Sections 5-714 and 5-715 requiring a contested [*247] case hearing prior to placement of an individual in the database?
 
2. Does inevitable governmental dissemination of an "indicated" finding of child abuse to a prospective employer impinge upon an individual's liberty right to follow a chosen profession thereby mandating contested case procedures, judicial review or other due process under the Maryland Declaration of Rights and the United States Constitution?
 
3. Does[***12] the inherent right of judicial review of arbitrary and capricious administrative decisions involving personal rights attach to a "Chapter 318 hearing" in which an "indicated" finding of abuse is sustained?

   Because of our resolution of T.E.P.'s first question we will not address directly questions two or three.

   The Consolidated Question

   We shall consolidate the first questions of each petitioner into a single question, the answer to which resolves all of the cases:
 
Does the inclusion of the names of individuals in databases accessible on a statewide basis to all local departments and other entities constitute "a central registry" as contemplated by sections 5-714 and 5-715, therefore requiring that "contested case" hearings under the APA be afforded prior to the inclusion of names in the databases?

   II. Discussion

    Statutory Framework n6

n6 For a more detailed explanation of all the procedures for reporting and investigating suspected child maltreatment, see former Chief Judge Murphy's discussion in C.S. v. Prince George's County Department of Social Services, 343 Md. 14, 17-22, 680 A.2d 470, 472-74 (1996).

[***13]

   Maryland's Child Abuse and Neglect statute is set forth in sections 5-701 to 5-715 of the Maryland Code (1984, 1991 Repl. Vol., 1997 Supp.), Family Law Article. Pursuant to section 5-706, a local department, after receiving a report and [*248] conducting an investigation of suspected child abuse or neglect, makes a finding as to whether neglect or abuse was "indicated" or "unsubstantiated" or "ruled out." A finding of indicated means that the local department found "credible evidence, which has not been satisfactorily refuted, that abuse, neglect, or sexual abuse did occur." § 5-701(k). A finding of unsubstantiated means the there was insufficient "evidence to support a finding of indicated or ruled out." § 5-701(v). A finding of ruled out is "a finding that abuse, neglect, or sexual abuse did not occur." § 5-701(t). If the local department makes a finding of indicated or unsubstantiated abuse or neglect, it must notify, within thirty days after the investigation is complete, the person who allegedly committed the abuse or neglect of that finding and his right to appeal the finding in an [**1336] administrative hearing. § 5-706.1(a). These hearings to contest local department findings of indicated[***14] or unsubstantiated neglect or abuse commonly are called "Chapter 318 hearings," referring to the legislative act creating them. See generally 1993 Md. Laws, Chap. 318. n7

n7 Sections 5-714 and 5-715, which provide for the hearings that we held were to be contested case hearings in C.S., predate the 1993 enactment of Chapter 318.

   1. Chapter 318 Hearings
 
Upon notification by a local department that an accused has been found responsible for the indicated or unsubstantiated abuse or neglect of a child, he or she can request an administrative hearing by responding to the local department's notice in writing within sixty days. § 5-706.1(b). Within ten days of receipt of a request for a hearing, the department must "review all records and reports concerning the alleged abuse or neglect" and then "determine whether the finding shall be amended, modified, or expunged." § 5-706.1(d). Also within ten days of receiving the request for an administrative hearing, the local department is required to forward[***15] to OAH the request for the administrative hearing. § 5-706.1(c). See also § 5-706.2(b) (requiring the Department to forward to OAH all reports and records regarding the case upon the [*249] accused's request for a hearing). If the local department has not changed its findings to "ruled out," the records must be transferred to the OAH and the accused can then request an in camera review of the full report or record by an ALJ "to determine the accuracy and sufficiency of the report or record." § 5-706.2(a).

    After the ALJ determines that the information "in the report or record is sufficient and accurate for purposes of determining an issue in a proceeding," the information in that record or report may be forwarded to the accused. § 5-706.2(c). If the accused contests the findings, he or she may submit additional written information to the ALJ. § 5-706.2(d)(1). The ALJ then determines the correctness of the findings and, if incorrect, must "order the Department to amend, modify, or expunge the finding, as appropriate." Id. It is important to note that the informal nature of Chapter 318 hearings allows for no presentation of evidence or testimony of witnesses by the accused. [***16]

   2. Maintenance of Records
 
Information relating to child abuse or neglect is stored by the local departments and the Social Services Administration (SSA), which is a branch of the DHR. Local departments are required, in cases of child abuse or neglect, to "maintain records relating to the report and investigation which identify individuals involved in the investigation or assessment by name and address, including the identification of any needed services and an assessment of risk, in accordance with Regulation .18 of this chapter." COMAR 07.02.07.14B(1). In addition, records relating to any case-related investigations, assessments, or services offered must be maintained by the local department. COMAR 07.02.07.14B(1) and (2). The Child Abuse and Neglect statute defines a record as the original or any copy of any documentary material, in any form, including a report of suspected child abuse or neglect, that is made by, received by, or received from the State, a county, or a municipal corporation in the State, or any [*250] subdivision or agency concerning a case of alleged child abuse or neglect.
 
§ 5-701(r). See also COMAR 07.02.07.02(26); COMAR 07.02.26.02(11). A report is defined[***17] as "an allegation of abuse or neglect, made or received under" the Child Abuse and Neglect statute. § 5-701(s). See also COMAR 07.02.07.02(28); COMAR 07.02.26.02(12). If abuse or neglect is ruled out and no further reports of abuse or neglect received, the report and investigative findings are expunged from the local department's records within 120 days of the conclusion of the investigation. § 5-707(b)(2); COMAR 07.02.07.18B. If the department concludes that the abuse or neglect is unsubstantiated, reports and findings are expunged within five years of the conclusion of the investigation if no further reports of abuse or neglect are received during that time. § 5-707(b)(1); COMAR [**1337] 07.02.07.18(A). Findings of indicated abuse can remain on record indefinitely. n8

n8 The Department, however, must remove a suspected abuser's or neglector's name from a central registry if no other entry has been made for that individual for seven years subsequent to the entry of their name in a registry, regardless of the department's ultimate findings. Section 5-715(e).

[***18]
 
3. Central Registry
 
 The Child Abuse and Neglect Central Registry originally was created by the Legislature in 1966, and its existence was mandatory. See 1966 Md. Laws, Chap. 221. In 1987, the Legislature amended the statute and provided that the maintenance of the Central Registry was discretionary. 1987 Md. Laws, Chap. 635. Thus, as part of its records and pursuant to the present provisions of § 5-714, the SSA "and each local department may maintain a central registry of cases reported under this subtitle," containing the information gathered by the local departments from around the state. § 5-714(a) and (b).

   The statute does not define "central registry." DHR regulations, however, define it as [*251] a centralized listing of individuals identified in the local department of social services written findings of an investigation of suspected abuse or neglect, pursuant to Family Law Article, § 5-701 et seq., Annotated Code of Maryland, as responsible or allegedly responsible for causing the injury, harm, or substantial risk of harm to a child.
 
COMAR 07.02.07.02B(4); COMAR 07.02.26.02B(4). The information contained in these records may be accessed and used by the SSA and[***19] by any local departments and law enforcement personnel investigating reports of suspected child abuse or neglect. § 5-714(c).
 
Article 88A § 6 provides, in pertinent part, that it is unlawful to disclose these records, with several exceptions:

   (a) In general. -- Except in accordance with a court order or to an authorized officer or employee of the State, another state or local government, or the United States, or a fiduciary institution having a right thereto in an official capacity, and as necessary to discharge responsibilities to administer public assistance, medical assistance, or social services programs, it shall be unlawful for any person or persons to divulge or make known in any manner any information concerning any applicant for or recipient of social services, child welfare services . . . directly or indirectly derived from the records, papers, files, investigations or communications of the State, county or city, or subdivisions or agencies thereof, or acquired in the course of the performance of official duties.

   (b) Child abuse or neglect. -- Except as otherwise provided in Title 5, Subtitle 7 of the Family Law Article, all records and reports concerning [***20]child abuse or neglect are confidential, and their unauthorized disclosure is a criminal offense subject to the penalty set out in subsection (e) of this section. Reports or records concerning child abuse or neglect may be disclosed only:

   (1) (i) Under a court order; or
 
(ii) Under an order of an administrative law judge, if the request for disclosure concerns a case pending before the [*252] office of administrative hearings and provisions are made to comply with other State or federal confidentiality laws and to protect the identity of the reporter or other person whose life or safety is likely to be endangered by disclosure;

   (2) To personnel of local or State departments of social services, law enforcement personnel, and members of multidisciplinary case consultation teams, who are investigating a report of known or suspected child abuse or neglect or who are providing services to a child or family that is the subject of the report;

   (3) To local or State officials responsible for the administration of the child protective service or child care licensing and regulations as necessary to carry out their official functions;

   (4) To a person who is the alleged child abuser or the person[***21] who is suspected of child neglect if that person is responsible for the child's welfare and provisions are made for the protection of the identity of [**1338]the reporter or any other person whose life or safety is likely to be endangered by disclosing the information;
 
(5) To a licensed practitioner who, or an agency, institution, or program which is providing treatment or care to a child who is the subject of a report of child abuse or neglect for a purpose relevant to the provision of the treatment or care;

   (6) To a parent or other person who has permanent or temporary care and custody of a child, if provisions are made for the protection of the identity of the reporter or any other person whose life or safety is likely to be endangered by disclosing the information;

   (7) To the appropriate public school superintendent for the purpose of carrying out appropriate personnel actions following a report of suspected child abuse involving a student committed by a public school employee in that school system; or
 
(8) To the director of a licensed child care facility or licensed child placement agency for the purpose of carrying [*253] out appropriate personnel actions following a report of suspected[***22] child neglect or abuse alleged to have been committed by an employee of the facility or agency and involving a child who is currently or who was previously under that facility or agency's care.
 
See also COMAR 07.02.07.23A. In addition, an individual applying to work or volunteer with children may request, in "a timely, notarized request," that a local department notify a third party "of whether the applicant is identified in the local department's records as an indicated child abuser or neglector." COMAR 07.02.07.23G.

   In 1987 and, as we have noted, prior to the enactment of the provisions providing for the limited Chapter 318 hearings, the Legislature created certain protections for persons suspected of abuse or neglect prior to the entry of their names into a central registry. These procedural safeguards are now codified at section 5-715:
 
(b) Notice of entry of name in central registry. -- Before the name of a person who is suspected of abuse or neglect is entered in a central registry, the person shall be given notice.

   (c) Hearing to appeal entry of name in central registry required; exception. -- (1) Except as provided in paragraph (3) of this subsection, [***23] on request by a person suspected of abuse or neglect, the Department shall hold an administrative hearing for the purpose of allowing the person to appeal the entry of the person's name in a central registry.

   (2) The hearing shall be held in the county in which the person suspected of abuse or neglect resides.

   (3) The name of a person adjudicated a child abuser may be entered in a central registry without an opportunity for a hearing under this subsection.

   (d) Requirements for entry of name in central registry. -- The Department may not enter the name of a person in a central registry unless the person has:

   (1) been adjudicated a child abuser;

   [*254] (2) unsuccessfully appealed the entry of the person's name in the central registry under procedures established by the Department and this section; or
 
(3) failed to respond within 15 days to notice by the Department of the Department's intent to enter the person's name in a central registry.
 
See also 1987 Md. Laws, Chap. 635.

   We addressed the procedural safeguards provided by section 5-715 to persons suspected of child abuse or neglect prior to the entering of their names on a "central registry" in C.S., 343 Md. at[***24] 33, 680 A.2d at 480, and there held that section 5-715 provides those individuals a right to a contested case hearing before DHR or a local department can enter their names into a central registry. According to the affidavit of Stephen Berry, Acting Director of the Office of Family and Children's Services of the Social Services Administration, in reaction to our opinion in C.S. and "rather than offering all individuals on the Central Registry full administrative hearings," the Department deactivated the formal Central Registry. Accordingly, the Department, on its own accord, ceased entering names on the Child Abuse and Neglect [**1339] Central Registry in 1996 and effectively disbanded that particular system.

   4. The AMF and CIS Registries
 
As recognized by the local departments in their brief, "also considered part of the agency's record are the coded entries in the AMF and CIS." n9 The departments go on to describe the evolution of the AMF:

n9 Although the CIS is the most recent update of the AMF system, it contains the same information. MCDSS states in its brief that for the purposes of this appeal, the AMF and CIS database systems are identical. We shall refer to these registries interchangeably throughout this opinion.

[***25]

   Since the 1940s, prior to local departments having responsibility for CPS [Child Protective Services], DHR and local departments have maintained "lists" of their clients. Prior [*255] to automation, this was done by use of a centralized index card filing system known as the "Master File." When the Master File was automated in 1986, it was renamed the "Automated Master File" or AMF. [Citations omitted.]

   In his affidavit for the L.D. case, Acting Director Berry further described the AMF and CIS database systems:
 
The AMF, which still operates in many jurisdictions, is accessible to all local departments. The AMF contains coded information about any individual who has applied for or received benefits or services through a DHR program anywhere in the state. As with the Master File, local departments use the AMF to locate active and closed case records; determine what DHR benefits or services individuals have applied for or received; monitor case activity; and extract limited demographic information about individual applicants and recipients. The AMF also generates the data DHR requires for various statistical reports.

   In the early 1990s, DHR began development of a new computer[***26] system, CIS. Local departments in all but the largest jurisdictions now use CIS to track clients and services. While CIS jurisdictions still have access to the AMF, they enter new data and cases directly into CIS. The same kinds of data are recorded in both systems.

   In both the AMF and CIS, "child protective services" provided in response to a report of child abuse or neglect are catalogued, as other services, under a "case head," usually the female head of the household. Under the case head, local departments enter the names of family members, including the child and other relatives by blood, adoption, or marriage, and of household members. In the case of alleged abuse or neglect, household members include all individuals who lived with the child or were a regular presence in the child's home. Any other individuals significant to the provision of services are identified as "associates" and coded with a reference to their relationship to the case head.

   [*256] The particular services provided to a family are identified in the AMF or CIS by a code. In the case of reported child abuse or neglect, a service code for child protective services is entered into the AMF or CIS for the case head[***27] as well as for every household or family member or associate. An additional code identifies the alleged maltreatment (physical abuse, sexual abuse, or neglect) and disposition of the investigation ("indicated," "unsubstantiated," or "ruled out").

   . . . .
 
Access to the AMF and CIS is limited. In both systems, access is controlled by the use of passwords provided only to certain local department and DHR employees for whom access is necessary to perform their jobs.

   Acting Director Berry went on to describe the now defunct Central Registry. He stated that the Central Registry initially was accessible to public and private agencies and that it was not until 1977 that the Legislature "prohibited the Department from entering a person's name into 'the Child Abuse Central Registry' unless he or she had been 'adjudicated a child abuser' or had been offered an administrative hearing." See generally 1977 Md. Laws, Ch. 504. Berry noted that in 1981, because of the stigmatizing effect on a family or child and the intrusive nature of the appeals process, the Legislature limited [**1340]access to the Central Registry to individuals specifically involved in child abuse investigations: "protective[***28] services staff of the Social Services Administration, protective services staff of local departments of social services, who are investigating a report of suspected child abuse, . . . and law enforcement personnel who are investigating a report of suspected child abuse." 1981 Md. Laws Ch. 770 (showing additions and deletions). But see COMAR 07.02.07.23A, supra.

   In 1987, at the request of the Department, the Legislature again amended provisions regarding the Central Registry and clarified that the maintenance of the Central Registry was discretionary rather than mandatory. See 1987 Md. Laws Ch. 635 (now codified with amendments at § 5-714(a)). Accordingly, [*257] in the late 1980s, the Department deactivated the Central Registry. It was reactivated briefly after the passage of the Chapter 318 hearings process, "based on [DHR's] understanding that the Chapter 318 appeal procedures would satisfy, as well, the hearing requirements of section 5-715." That interpretation proved incorrect when this Court held in C.S., 343 Md. at 33, 680 A.2d at 480, that section 5-715 required that individuals be offered full contested case hearings, not simply the limited Chapter 318 hearings, [***29]prior to the entry of their names on the Central Registry. As we have stated, in reaction to that decision and rather than offering full contested case hearings, the Department again deactivated the Central Registry. At no time has DHR offered individuals full administrative "contested case" hearings to challenge the entry of their names on the AMF or CIS.

   The AMF is defined by the DHR in its regulations as an "automated electronic system that maintains data related to services provided by a local department." COMAR 07.02.07.02B(3). The AMF also has been referred to as "a statewide, comprehensive database containing records of all cases, including those of suspected child abuse, which are handled by local departments of social services." Senate Judicial Proceedings Committee, Floor Report for House Bill 617, at 2 (1993); Senate Judicial Proceedings Committee, Bill Analysis for House Bill 617, at 1 (1993). The local departments assert that "these databases serve as computerized indices of all of the agency's files, only a small percentage of which involves [Child Protective Services]. By 'running' a name, a local department can determine whether [it or] any [other] local department[***30] has served or assisted an individual or household and the status of such involvement." The local departments contend that the AMF and CIS systems are not central registries because they are "not 'designed solely to list the names of adjudicated child abusers.'" C.S., 343 Md. at 22, 680 A.2d at 474 (quoting Bill Analysis for House Bill 617, at 2).

   In the L.D. case, the circuit court below determined that, as matter of law, " the AMF and CIS databases operated by the Montgomery County Department of Social Services and the [*258] State Department of Human Resources constitute a "central registry" as contemplated by Md. Code Ann. Family Law Art., §§ 5-714 and 5-715 (1990 & Supp. 1996)." In reaching this determination, Judge Mason, in an excellent opinion, explored the factual background and described the AMF and CIS databases:
 
The precursor to the AMF was the Master File index card systems maintained by each individual local department since the 1940s. These systems were unique to each department and kept track of only those services rendered by that respective local department. Statistical data from these files was tabulated and sent to DHR on a monthly basis.

   In 1986, DHR created[***31] the Automated Master File ("AMF") to replace the card system. Unlike the manual card system, the AMF was the filing system for all local departments and made information entered by one local department instantly accessible to all others.

   In 1990, DHR updated the AMF with a new system called the Client Information System ("CIS"). The same data is recorded in both systems. The CIS database is now used in all but the largest jurisdictions. Those jurisdictions using the CIS still have access to the AMF.

   In both systems, data regarding child abuse and neglect is cataloged under a [**1341] "case head" and is entered by means of alphanumeric codes. Although the affidavit [of Stephen Berry] does not set out how DSS determines who is the "case head," it does state that the case head is "usually the female head of the household." Nonetheless, all information regarding the case is stored under that name. Included in this information are the identities of all individuals significant to the provision of services along with codes which reveal their relationship to the case head.

   In the case of child abuse or neglect, two codes are entered which are of particular importance:

   . one signifies that a child[***32] protective services investigation has been conducted and identifies the maltreatment [*259] alleged in the investigation, i.e., whether it is physical abuse, sexual abuse or neglect; and
 
. the second identifies the finding of the investigation, i.e., whether it was "ruled out," "indicated," or "unsubstantiated."
 
These codes appear under the name of each individual listed under the case head regardless of whether that individual is the perpetrator, victim or is otherwise associated with the case. There is no code which explicitly identifies or otherwise singularly applies to the perpetrator.

   In addition to submitting the affidavit generally describing the codes and procedures used to enter an individual onto the AMF or CIS, DSS also submitted printouts reflecting the information available on [L.D]. As for the AMF printouts, this information only reflects that [L.D.] ran a day care home. This is because DSS switched from the AMF to the CIS prior to the allegations of neglect against [L.D]. DSS entered all case information on the CIS, hence, only the CIS contains child neglect information connected with [L.D].

   The CIS printouts regarding [L.D.] largely confirm the[***33] general information regarding the databases summarized above. The information appears in three types of printouts. One printout is the "address" display which contains [L.D.]'s address. The second printout is the "summary" display wherein [D.N.] is listed as the case head with [L.D.'s] spouse, [L.D.'s] children, [the child and the child's mother] all listed under [L.D.'s] name. Next to each name is the code for a child neglect investigation.

    The final type of printout is the "client inquiry" display. Each individual, including [L.D.] has a distinct display under their name in which certain information appears. All of these displays for each individual contain the same codes signifying: (1) a child neglect investigation; (2) a finding of "indicated neglect"; (3) the location of the office handling the investigation; and (4) the dates the investigation was opened and closed. Additionally, the displays contain codes [*260] for each individual's relationship to the case head and their date of birth. [Citations omitted; footnotes omitted.]

   With the foregoing discussion in mind, we turn now to the case sub judice.

   III. Analysis

   In this consolidated appeal, we must[***34] address the issue left unanswered in C.S., 343 Md. at 34 n.8, 680 A.2d at 480 n.8: "Whether records stored in the AMF [and CIS] are . . . 'central registries' within the meaning of [section] 5-714." We answer this in the affirmative and hold that because the AMF and CIS registries are statewide, comprehensive databases containing information identifying suspected child abusers, available on a statewide basis, these databases constitute central registries and therefore are subject to the contested case hearing procedures mandated by section 5-715 and C.S.

   C.S. v. Prince George's County Department of Social Services

   In C.S., 343 Md. at 22, 680 A.2d at 474, the Prince George's County Department of Social Services (PGCDSS) notified C.S. that C.S. had been found responsible for indicated abuse and that it would enter C.S.'s name on the Child Abuse and Neglect Central Registry. C.S. received only a limited Chapter 318 hearing, not a contested case hearing. [**1342] The ALJ upheld the local department's finding.
 
C.S. filed a petition for judicial review in the Circuit Court for Prince George's County. PGCDSS moved to dismiss that petition, arguing that the child abuse[***35] statute did not specifically provide for judicial review and that the APA, which provides for judicial review in some cases, did not apply to findings of indicated child abuse. The circuit court agreed with the PGCDSS and granted its motion.

   After an exhaustive review of the legislative history and evolution of Maryland's Child Abuse and Neglect statute and regulations, we reversed the circuit court and [*261] concluded that [sections] 5-706.1 and 5-706.2, which implement Chapter 318 hearings, are only applicable to a review of the local department's records. Section 5-715 [, however,] provides an alleged abuser with a separate and independent right to an administrative hearing before his or her name may be entered into a central registry. We further held that the hearing under [section] 5-715 qualifies as a "contested case" hearing under the APA, and that it was improper to provide C.S. with only the limited hearing specified by Chapter 318.
 
C.S., 343 Md. at 23-24, 680 A.2d at 475.

   Integral to our holding in C.S. was the developmental history of the statutory and regulatory provisions relating to central registries. We described the various procedural safeguards the Legislature[***36] incorporated into the child abuse statute over the years and determined that the Legislature's enactment of those provisions evidences a deep concern on the part of the legislature to give individuals alleged to have committed child abuse or neglect an opportunity to clear their name. This history also demonstrates the legislature's concern that before information relating to alleged child abuse can be disseminated state-wide, that information must have been demonstrated to be accurate either through adjudication or an administrative hearing. Clearly, [sections] 5-701 to 5-715 grant broad authority to social services and law enforcement agencies to investigate and prosecute cases of child abuse and to prevent its recurrence. At the same time, the legislature has also shown that this authority must be tempered to ensure that individuals are not labeled as child abusers on the basis of inaccurate or incomplete information.
 
Id. at 30, 680 A.2d at 478. See also C.S., 343 Md. at 24-30, 680 A.2d at 475-78 (describing in detail and analyzing the legislative history of the child abuse statute over the past thirty years).

   We then went on to discuss the history behind Chapter 318 hearings[***37] and described the Legislature's enactment of sections [*262] 5-706.1 and 5-706.2 as "a new avenue of procedural protection . . . [for] allowing alleged abusers to request administrative review of the findings made by a local department." Id. at 28, 680 A.2d at 477 (emphasis added). Finally, we discussed the Legislature's amendment of section 5-715 in Chapter 318, which broadened that provision's scope by replacing each reference to "the central registry" in section 5-715 to "a central registry." We noted the significance, stating: "Following this amendment, [section] 5-715's right to a hearing clearly applies to all central registries in Maryland, not one single central registry." Id. at 29, 680 A.2d at 478 (emphasis added). Thus, we recognized in C.S. that the fundamental distinction between the Chapter 318 protections and the protections previously provided in section 5-715 was that a Chapter 318 hearing was created to allow those found to have committed abuse or neglect to challenge those findings, even if their names are not to be placed on a central registry. Section 5-715, however, continues to provide procedural safeguards for those accused of abuse or neglect[***38] before their names can be entered into a central registry.
 
Having noted the distinctions between the two types of hearings, we then went on in C.S. to analyze how those hearings actually were conducted. We concluded that DHR regulations provided only a limited Chapter 318 type hearing for the distinctly different appeals the departments were to provide under section 5-715. See id. at 31, 680 A.2d at [**1343] 478. Accordingly, we struck down these regulations because they failed to properly implement the legislative scheme because the Chapter 318 hearing was created by the legislature as a new and independent means of review [for a local department's findings only]. Thus, Chapter 318 hearings were intended to supplement, rather than replace, the pre-existing administrative review of an agency's decision to enter a person's name on a central registry, available under [section] 5-715.

 
Id. The nature of the hearings required by section 5-715, we then determined, were contested case hearings under the APA. See also SG § 10-202(d)(1) (defining a contested [*263] case hearing as "a proceeding before an agency to determine a right, duty, statutory entitlement, [***39] or privilege of a person that is required by statute or constitution to be determined only after an opportunity for an agency hearing."). One of the elements of a contested case hearing, we said, "is whether the entity conducting the hearing acts in an adjudicatory capacity, i.e. by determining the facts of a case and applying those facts to some legal standard in order to reach a conclusion." Id. at 32, 680 A.2d at 479 (citing Sugarloaf Citizens Ass'n v. Northeast Waste Disposal Auth., 323 Md. 641, 653, 594 A.2d 1115, 1121 (1991) and Medical Waste Assocs. v. Maryland Waste Coalition, Inc., 327 Md. 596, 609, 612 A.2d 241, 247 (1992)). During the course of a section 5-715 hearing, the ALJ must answer the sole question of "whether the alleged incident of abuse or neglect is correctly labeled as 'indicated' or 'unsubstantiated,'" C.S., 343 Md. at 33, 680 A.2d at 479. In order to reach that determination, the ALJ must "sift between potentially conflicting information presented by the DHR and the alleged abuser to determine" whether the DHR's label is correct. Id. We held, therefore, that the Legislature intended that this appeal process be conducted as an administrative[***40] contested case hearing under the APA. Accordingly, section "5-715 entitles [persons accused of child abuse or neglect] to a contested case hearing before the DHR or [local department] can enter [the accused's] name on a central registry created under [section] 5-714." Id. at 34, 680 A.2d at 480 (footnote omitted).
 
Statutory Interpretation
 
Having discussed the backdrop of C.S.'s requirement that a contested case hearing be held before an individual's name can be entered on a central registry, we must now address whether the AMF and CIS databases currently in use by the local departments constitute central registries, thereby requiring the same contested case procedures.

   We have said that "the cardinal rule of statutory interpretation is to ascertain and effectuate the intention of the legislature." Oaks v. Connors, 339 Md. 24, 35, 660 A.2d [*264] 423, 429 (1995). Legislative intent must be sought in the first instance in the actual language of the statute. Marriott Employees Fed. Credit Union v. Motor Vehicle Admin., 346 Md. 437, 444-45, 697 A.2d 455, 458 (1997); Stanford v. Maryland Police Training & Correctional Comm'n , 346 Md. 374, 380, 697[***41] A.2d 424, 427 (1997) (quoting Tidewater v. Mayor of Havre de Grace, 337 Md. 338, 344, 653 A.2d 468, 472 (1995)); Coburn v. Coburn, 342 Md. 244, 256, 674 A.2d 951, 957 (1996); Romm v. Flax, 340 Md. 690, 693, 668 A.2d 1, 2 (1995); Oaks, 339 Md. at 35, 660 A.2d at 429; Mauzy v. Hornbeck, 285 Md. 84, 92, 400 A.2d 1091, 1096 (1979); Board of Supervisors v. Weiss, 217 Md. 133, 136, 141 A.2d 734, 736 (1958). Furthermore, where the statutory language is plain and free from ambiguity, and expresses a definite and simple meaning, courts do not normally look beyond the words of the statute itself to determine legislative intent. Marriott Employees, 346 Md. at 445, 697 A.2d at 458; Kaczorowski v. City of Baltimore, 309 Md. 505, 515, 525 A.2d 628, 633 (1987); Hunt v. Montgomery County, 248 Md. 403, 414, 237 A.2d 35, 41 (1968). 

   In Tracey v. Tracey, 328 Md. 380, 387, 614 A.2d 590, 594 (1992), however, this Court opined, in reference to construing an alimony statute:
 
While the language of the statute is the primary source for determining legislative intention, the plain meaning rule of construction is not absolute; rather, the statute must be construed[***42] reasonably with reference [**1344]to the purpose, aim, or policy of the enacting body. The Court will look at the larger context, including the legislative purpose, within which statutory language appears. Construction of a statute which is unreasonable, illogical, unjust, or inconsistent with common sense should be avoided. [Citations omitted.]
 
Because we have already held in C.S. that the Legislature intended contested case hearings to be held before individuals can be listed on a central registry, the question germane to the issue at hand is the plain meaning of or what constitutes a "central registry."

   [*265] The Child Abuse and Neglect statute uses but does not define the phrase "central registry." As stated, supra, however, a definition can be found in DHR's regulations:
 
"Central registry" means a centralized listing of individuals identified in the local department of social services written findings of an investigation of suspected abuse or neglect, pursuant to Family Law Article, § 5-701 et seq., Annotated Code of Maryland, as responsible or allegedly responsible for causing the injury, harm, or substantial risk of harm to a child.
 
COMAR 07.02.07.02B(4). See [***43]  also COMAR 07.02.26.02B(4). In THE RANDOM HOUSE DICTIONARY OF THE ENGLISH LANGUAGE 240 (1983), "central" is defined as "constituting that from which other related things proceed or upon which they depend." "Centralize" is defined as "to draw or to gather about a central or central point" or "to bring under one control, esp. in government." Id. "Central" likewise is defined in the MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY 186 (10th ed. 1996) as "easily accessible from outlying districts." "Registry" is defined as "an official record book." MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY 985 (10th ed. 1996). Taking into consideration the dictionary meanings of the terms "central" and "registry," along with the regulatory definition of "central registry," we believe that the plain meaning of "central registry" is a list of reported instances concerning individuals identified by local departments as suspected of child abuse or neglect that is centrally stored and centrally accessible from outlying areas.

   The AMF and CIS database systems clearly are central registries within the plain meaning of sections 5-714 and 5-715. First, the information stored on the databases is accessible statewide. Using either the AMF or CIS, the local departments[***44] input information relating to reports of alleged abuse or neglect from their separate locations, and this information is stored in the databases' memory banks. Likewise, the information stored is retrievable by any local department throughout the State. In fact, all local departments are required, upon receiving a report of child abuse, to "check the Central Registry, AMF, or CIS, and any available case records [*266] for any information about any other services currently being offered or previously offered by the local department to the child, caretaker, or household or family member." COMAR 07.02.07.06I.

   The local departments in the case sub judice argue that the mere maintenance of a computerized index of its cases, "in which no individual is identified as an alleged maltreator, does not trigger the hearing right set forth in [section] 5-715." (Emphasis added.) Moreover, the departments contend these databases were not created to store lists of child abuser or neglect offenders; rather, they are indices of all services provided by the local departments.

   As we perceive their first argument, the local departments assert that because the AMF and CIS registries do not denote specifically[***45] who among the individuals listed on the registry as associated with the incident is the perpetrator, this scheme does not enable others accessing the records to discern from the list who committed the abuse or neglect. We disagree. Under section 5-701(b) and under DHR's own regulations, abuse can be committed only by a parent, a person responsible for the child's supervision or having permanent or temporary care or custody of the child, or a household or family member. See § 5-701(b) and COMAR 07.02.07.02B(6). Neglect can be committed only by a parent or person responsible for the child's supervision or having permanent or temporary care or custody. See § 5-701(p) and COMAR 07.02.07.02B(7)(a). The statute and these regulations narrow who among the list of [**1345] individuals associated with the incident can be a perpetrator. Furthermore, the AMF and CIS display the particular finding resulting from the investigation, as well as the ages of the individuals, so one reviewing the record easily can discern who on the record is an adult and who is a child. Therefore, anyone reading a record can learn that the perpetrator is one of the adults listed who necessarily must fall into the relationship[***46] categories described above.

   To the extent the local departments presuppose that many individuals associated with the incident will be listed on the [*267] record, thereby decoying the real perpetrator, this may not be the case. If, for example, an anonymous report of abuse involved a single parent and one child, someone reviewing records related to this incident on the AMF or CIS could infer easily from that record who is the parent listed on the registry. Additionally, the reviewer can discern that the child and parent are entered in the database because of a finding of indicated or unsubstantiated abuse or neglect because no other persons are listed and from the disposition of the case therefore can infer that the parent is responsible for the abuse or neglect. Accordingly, we believe the AMF and CIS registries sufficiently identify individuals suspected by local departments of abuse or neglect within the meaning of section 5-715.

   Although the primary reason for the creation of the Central Registry in 1966 was to track individuals allegedly responsible for child abuse or neglect, we have found no indication by the Legislature that it intended the only central registry in Maryland to[***47] be the Child Abuse and Neglect Central Registry then extant. Simply because the local departments store a wide variety of information on the AMF or CIS registries relating to other services offered their clients, that alone does not render those databases any less of a central registry for the purpose of identifying child abusers or neglectors. Although the information entered into the AMF or CIS documents any services that any individuals have received, a necessary subset of those records is services provided by child protective services for cases of abuse or neglect. What is more, in his affidavit, Acting Director Berry asserts the data which had previously been available from the Central Registry was "equally available through the AMF." Simply because the primary purpose of the AMF or CIS was not to list those found responsible for the abuse or neglect of a child does not mean those databases, or at least the relevant portions of abuse and neglect records stored on the databases, do not constitute central abuse and neglect registries.
 
   In addition to our interpretation that the AMF and CIS databases constitute central registries under the plain meaning of the statute, legislative [***48]history supports this interpretation. [*268] For instance, in addition to creating a new hearing procedure for challenging local department findings, the Legislature broadened the scope of section 5-715 with Chapter 318 by replacing "the" central registry with "a" central registry. This modification clearly shows that the Legislature no longer intended, if it ever had intended, to limit the statute's applicability to the Child Abuse and Neglect Central Registry, which sometimes had been deemed "the" child abuse and neglect registry, meaning the most widely used or most complete registry of child abusers or neglectors in this state. Instead, the Legislature amended the statute to reflect the need to protect persons before they are entered on any central registries. As we have stated, "following this amendment, [section] 5-715's right to a hearing clearly applies to all central registries in Maryland, not one single central registry." C.S. 343 Md. at 29, 680 A.2d at 478. 

   The local departments argue that the Legislature did not intend to broaden the term "central registry" in Chapter 318 to trigger both contested case hearings under section 5-715 and the hearings of limited review as[***49] set forth in sections 5-706.1 and 5-706.2, because it twice rejected a comprehensive definition of central registry that would have included the AMF and CIS registries:

   "Central Registry" means any file, database, record, or other information source that is made or kept by a local department or the Department and contains information on child abuse and neglect cases. "Central Registry" includes the following, [**1346] whether or not centrally located: A manual file or automated data file; and all reports and records of suspected child abuse and neglect maintained by a local department or the Department.
 
1992 House Bill 1016, section 1. See also 1993 Md. Laws, Chap. 318 (showing strike-outs amending bill to delete same language defining "central registry"). The local departments contend the Legislature's omission of this proposed definition shows that the Legislature specifically rejected the notion that the AMF and CIS were central registries. We do not believe this to be the case. First, our review of the legislative files for [*269] House Bill 1016 and House Bill 617 revealed no specific opposition to the contemplated definition of "central registry" based on the inclusion of the AMF or[***50] CIS as central registries. Rather, some parties expressed concern over the definition including as part of a central registry every "file, database, record, or other information source...made or kept by a local department or the Department" pertaining to child abuse or neglect cases.  In a letter to Delegate Donald Elliot about the proposed amendments to the child abuse and neglect statute, an assistant attorney general wrote that the definition of central registry in House B8ill 1016 essentially would define all files kept by the Department as a central registry. Furthermore, this definition would create "a right to notice and an opportunity for a hearing for every person who is reported to a local department for child abuse or neglect." Letter from Kathryn M. Rowe, Assistant Attorney Gen., to Hon. Donald B. Elliott of Mar. 2, 1992, at 3. See also Letter from Patricia M. Mannion, Ass'n of Social Services Directors, to John S. Arnick, House Judiciary Comm. of Feb. 26, 1992 (opposing House Bill 1016 because "by redefining central registry as 'any file, data base record or other information source,' the definition of central registry is greatly expanded, . . . resulting in a heavy burden on staff time in providing 'fair hearings.'").

   More importantly, although it rejected the comprehensive definition of "central registry," the Legislature also chose not to alter the status quo by supplying another, more limited definition. Rather, the Legislature, aware of the Hodge n10 court's interpretation that "a central registry" included the AMF and CIS, specifically did not attempt to modify this interpretation. Therefore, we find more persuasive that the Legislature, knowing[***51] of the Hodge interpretation, accepted this definition of "central registry." See Senate Judicial Proceedings [*270] Committee, Floor Report for House Bill 617, at 2 (1993), infra.

n10 Hodge v. Carroll County Dep't of Social Services, 812 F. Supp. 593 (D.Md. 1992), rev'd on other grounds, Hodge v. Jones, 31 F.3d 157 (4th Cir.), cert. denied, 513 U.S. 1018, 115 S. Ct. 581, 130 L. Ed. 2d 496 (1994), to be discussed in greater detail, infra.

   Hodge v. Carroll County Department of Social Services

   The United States District Court for the District of Maryland already has held that the AMF and CIS constitute central registries within the meaning of section 5-715. In Hodge v. Carroll County Department of Social Services, 812 F. Supp. 593 (D.Md. 1992), rev'd on other grounds, Hodge v. Jones, 31 F.3d 157 (4th Cir.), cert. denied, 513 U.S. 1018, 115 S. Ct. 581, 130 L. Ed. 2d 496 (1994), the plaintiffs, individually and on behalf of their son, Joseph Hodges, filed a federal section[***52] 1983 n11 claim against the Carroll County Department of Social Services (CCDSS). The claim arose out of an incident in which the Hodges took their son to the Carroll County General Hospital to examine and treat swelling in Joseph's right arm. The doctor who initially diagnosed Joseph's condition believed it to be "a broken right ulna 'without adequate historical explanation,'" and referred the case to CCDSS as an incident of suspected child abuse. Hodge, 812 F. Supp. at 597.

n11 42 U.S.C. § 1983 (1988).

   The next day, a CCDSS social worker began an investigation of the reported abuse. After interviewing the Hodges and other individuals, and finding no evidence of abuse, the social worker classified the Hodge case as "unsubstantiated" and "ruled out," and filed a report with CCDSS. CCDSS then filed its report on the AMF.

    [**1347] Not satisfied with first diagnosis of Joseph's condition, the Hodges took their son to another doctor. This doctor diagnosed the condition as osteomyelitis, a bacterial bone infection, and[***53] treated the condition. Mrs. Hodge later contacted CCDSS and notified them of Joseph's infection, pointing out that child abuse could not have caused the injury to Joseph's arm.

   [*271] The Hodges later requested that CCDSS permit them to inspect their case files in order to ensure that CCDSS correctly noted the disposition of the case. Instead of allowing them to review the file, the Assistant Director of CCDSS forwarded to the Hodges a summary of the case and notified them that their names had been entered on the AMF. Skeptical of the CCDSS, and how the Assistant Director handled the case file, and also concerned over the ramifications of their inclusion on the AMF, the Hodges asked the Director of DHR for assistance. She responded that according to Maryland's confidentiality provisions, she could not disclose to the Hodges the case file's contents.
 
In evaluating whether the procedural safeguards provided in section 5-715 applied to the AMF system, the federal district court made specific findings as to why the AMF was a central registry n12 under Maryland law:

n12 As of the date of the Hodge opinion, "central registry" was then defined in DHR regulation 07.02.07.02B(1) as "a registry of all reported cases of suspected child abuse and neglect maintained in the Social Services Administration." The definition has since been amended and renumbered. See COMAR 07.02.07.02B(4). See also 07.02.26.02B(4). While the federal district court relied on the older definition in its determination that the AMF and CIS are central registries within the meaning of sections 5-714 and 5-715, we believe the analysis in Hodge remains persuasive, particularly given that court's comments that the AMF sufficiently identifies those suspected of abuse or neglect, an element required in the current regulation. See Hodge, 812 F. Supp. at 604.

[***54]

   The individual defendants insist that the AMF is not a central registry because it is not a system designed solely to list the names of adjudicated child abusers, and because it does not identify any person as a suspected child abuser. . . . That argument apparently confuses the general term "central registry" with the specific [Child Abuse and Neglect Central Registry]. Clearly, any computerized data base that includes records of cases of suspected child abuse is a "central registry" under Maryland law. Of course, the [Child Abuse and Neglect Central Registry] is an example of a "central registry." Similarly, the AMF also is a "central registry."

   [*272] . . . .

   The defendants argue further that because the AMF does not identify any persons as "suspected child abusers," the AMF is not a central registry and [section] 5-715 does not apply. Under Maryland law, however, the AMF is a central registry. Additionally, with regard to the defendants' initial position, exactly the opposite conclusion follows from the facts presently in the record. CCDSS provides [child protective services] only in cases of suspected child abuse. See COMAR 07.02.07.03A. Further, applicable regulations [***55]define "child abuse" generally as physical injury or sexual molestation inflicted on a child either by a parent or by a guardian. COMAR 07.02.07.02B(3).[ n13 ] Therefore, every record of [child protective services] on the AMF is a record of a case of suspected child abuse. Indeed, several of the documents in the Hodges' physical case file labeled "Report of Suspected Child Abuse" leave no doubt about the nature of [the DSS social worker's] investigation in this case. Finally, even in a record of "unsubstantiated" child abuse, it requires no great leap of faith to conclude that at least one of the parents or guardians listed in the record is suspected of child abuse, regardless of whether the record identifies them explicitly in that way, and the plaintiffs have submitted affidavits from several former DSS employees to support such a conclusion.

n13 This provision is now codified in COMAR .07.02.07.02B(6).

 
Hodge, 812 F. Supp. at 603-604. n14 Although we are not bound by the federal district court's interpretation[***56] [**1348] of the term central registry, we [*273] find its definition in its opinion persuasive. We also cited this case without disapproval in C.S., 343 Md. at 22 n.2, 680 A.2d at 474 n.2.

n14 As a side note to the Hodge case, we think it not insignificant that the federal district court noted that upon unsealing the Hodges' [child protective services] case file, it was discovered that between January 23, 1989, and January 21, 1992, the alphanumeric codes on the computerized data base component of the AMF described the Hodges' case as one of indicated sexual child abuse, meaning that the CCDSS investigation discovered "credible and specific evidence, which has not been satisfactorily refuted," showing either that "sexual abuse had occurred and was committed by a caretaker or household or family member," or that "there are physical or behavioral indications that a child has been sexually abused. . . ." There is no evidence yet in the record to indicate who changed the computer records to reflect the proper disposition of the Hodge's case, or why three years passed before such a change was made.
 
Hodge, 812 F. Supp. at 603 n.5 (citation omitted).

[***57]

   More importantly, the Legislature also apparently found the federal court's interpretation persuasive. The Legislature stated that it devised the Chapter 318 hearing procedures and created a mechanism aside from the appeal procedures to be provided prior to listing individuals on a central registry because of the circumstances surrounding the Hodges' plight. Specifically, Chapter 318's enactment was "intended to more fully protect persons who are wrongly accused of child abuse or neglect by allowing them to avoid placing sole reliance on Hodge and by creating another mechanism by which they can contest the findings and investigations carried out by local departments of social services." Senate Judicial Proceedings Committee, Floor Report for House Bill 617, at 2 (1993); Senate Judicial Proceedings Committee, Bill Analysis for House Bill 617, at 2 (1993).

   What is more, the legislature not only was aware of the federal district court's interpretation of "central registry," it did not alter any of the bill's wording to contradict that interpretation. In a letter from Delegate Donald B. Elliot, a sponsor of the bill, to the Members of the Judiciary and Judicial Proceedings Committees, [***58] with a copy of the Hodge opinion attached, Delegate Elliot wrote: "Kindly note - starting on page 8 - Judge Herbert Murray's reaffirmation of the fact that the Automated Master File (AMF) at DHR is a central registry and those persons on the file are entitled to the protections of Family Law Article 5-715 which includes a fair hearing." Letter from Delegate Donald B. Elliot to Members of the Judiciary and Judicial Proceedings Committees of Feb. 8, 1993. Likewise, in the Floor Report and in the Bill Analysis of House Bill 617, after noting that the defendants [*274] in Hodge asserted that the AMF was not a central registry, the documents went on to state that "the federal court, however, found that the AMF should be considered a "central registry." See Floor Report at 2; House Bill at 2. Had the Legislature decided to reject this definition and choose a different definition of the phrase "a central registry," it clearly could have done so.
 
The local departments aver our interpretation would render the Legislature's provision for Chapter 318 hearings meaningless and nugatory because any entry on the AMF or CIS would require the departments to hold both Chapter 318 hearings [***59]and contested case hearings. Although it is true that one found responsible for indicated or unsubstantiated abuse or neglect and also listed by a local department on the AMF or CIS would be entitled to both forms of hearings, that hardly renders Chapter 318 hearings, as codified in sections 5-706.1 and 5-706.2, useless. The purpose of the Chapter 318 proceeding has been made clear: to allow an individual to contest the local department's findings of indicated or unsubstantiated abuse or neglect. If the local departments choose not to list an alleged perpetrator on the AMF or CIS, then the only hearing required is one pursuant to sections 5-706.1 and 5-706.2. Stated another way, Chapter 318 hearings are intended to more fully protect persons who are wrongly accused of child abuse or neglect by allowing them to avoid placing sole reliance on Hodge and by creating another mechanism by which they can contest the findings of investigations carried out by local departments of social services. This bill stands apart from the notice and hearing provisions concerning central registries, thereby giving persons a clear and independent basis from which to contest [**1349] findings of investigations [***60] into alleged child abuse and neglect.
 
Senate Judicial Proceedings Committee, Floor Report for House Bill 617, at 2 (1993); Senate Judicial Proceedings Committee, Bill Analysis for House Bill 617, at 2 (1993) (emphasis added). Chapter 318 merely provides to the suspected abuser another means for review; it was not intended to replace section 5-715 rights afforded individuals. The [*275] primary impact of House Bill 617, passed by the Legislature as Chapter 318, upon 5-715 was to change the terminology "the central registry" to "a central registry." In making this change, the Legislature may well have anticipated the Department's attempt to avoid the necessity for such hearings.

   The local departments also argue that our holding in this case means that CPS workers will not be able to enter any data into the AMF or CIS relating to an open investigation until after giving notice of and completing an evidentiary hearing. As a result, CPS workers will have no ability either to alert other staff when they have begun an investigation or to determine whether another investigation is already underway. This result . . . would cripple the local departments' ability to protect children from abuse[***61] and neglect.

   We believe the Legislature has spoken on the issue, and it is clear it sought a balance between the critical need to investigate and prosecute child abusers and neglectors and the equally critical need to allow persons accused of abuse and neglect the opportunity to clear their names before dissemination throughout the entire state. Accordingly, the departments' arguments are unpersuasive.
 
IV. Conclusion

   Taking into consideration the plain meaning of the term "central registry" and the legislative history and purpose of the Child Abuse and Neglect statute, we hold that the term "central registry" includes the AMF and CIS databases now operated by the DHR and local departments. Accordingly, prior to the entry of their names as suspected child abusers and neglectors into these databases, accused individuals must be provided a full contested case hearing and the concomitant right to judicial review in accordance with section 5-715 and our opinion in C.S.

   Because of our resolution of this issue, it is unnecessary for us to reach the other questions presented by the parties. Accordingly, we shall affirm the order of the Montgomery [*276] County Circuit Court[***62] in Montgomery County Department of Social Services v. L.D. and reverse the orders of the circuit courts in T.E.P. v. Anne Arundel County Department of Social Services, and D.N. v. Frederick County Department of Social Services.
 
THE ORDER OF THE CIRCUIT COURT FOR MONTGOMERY COUNTY IN APPEAL NO. 75, MONTGOMERY COUNTY DEPARTMENT OF SOCIAL SERVICES V. L.D., IS AFFIRMED; THE ORDER OF THE CIRCUIT COURT IN T.E.P. V. ANNE ARUNDEL COUNTY DEPARTMENT OF SOCIAL SERVICES IS REVERSED; THE ORDER IN D.N. V. FREDERICK COUNTY DEPARTMENT OF SOCIAL SERVICES IS REVERSED; CASES OF T.E.P. V. ANNE ARUNDEL COUNTY DEPARTMENT OF SOCIAL SERVICES AND D.N. V. FREDERICK COUNTY DEPARTMENT OF SOCIAL SERVICES ARE REMANDED TO THE RESPECTIVE CIRCUIT COURTS FOR FURTHER PROCEEDINGS; COSTS IN EACH CASE ARE TO BE PAID BY THE RESPECTIVE DEPARTMENTS. 

HOLIDAY POINT MARINA PARTNERS v. ANNE ARUNDEL COUNTY,MARYLAND et al. 
No. 4, September Term, 1996
 
COURT OF APPEALS OF MARYLAND
 
349 Md. 190; 707 A.2d 829; 1998 Md. LEXIS 237

 April  3, 1998, Filed

   PRIOR HISTORY: [***1] No. 4. Certiorari to the Court of Special Appeals (Circuit Court for  Anne Arundel  County). Robert H. Heller, Jr. JUDGE.

DISPOSITION: JUDGMENT OF THE COURT OF SPECIAL APPEALS VACATED, AND CASE REMANDED TO THAT COURT WITH DIRECTIONS TO VACATE THE JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AND TO REMAND THE CASE TO THE CIRCUIT COURT WITH DIRECTIONS TO DISMISS THE DECLARATORY JUDGMENT ACTION. PETITIONER TO PAY THE COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS.

CORE TERMS:  zoning, marina, shellfish, judicial review, water, regulation, state law, pier, bed, ordinance, tidal, declaratory judgment action, wetlands, preempted, riparian, declaratory judgment, zoning ordinance, invalid, variance, boat, Wetlands Act, local zoning, restaurant, zone, preemption, situs, invoked, summary judgment, local ordinance, water quality

COUNSEL: ARGUED BY Charles R. Schaller (Marian C. Hwang, Thomas E. Lynch, III, Miles & Stockbridge, on brief) of Baltimore, MD, FOR PETITIONER.
 
ARGUED BY Patricia A. Logan, Senior Assistant County Attorney, (Phillip F. Scheibe, County Attorney, Anne Arundel County Office of Law;) ARGUED BY: Thomas J. Wohlgemuth, on brief, all of Annapolis, MD, FOR RESPONDENT.

JUDGES: ARGUED BEFORE * Murphy, C.J.; Eldridge, Rodowsky, Chasanow, * Karwacki, Bell, and Raker, JJ. Opinion by Eldridge, J.

* Murphy, C.J. and Karwacki, J., now retired, participated in the hearing of this case while active members of this Court; after being recalled pursuant to the Constitution, Article IV, Section 3A, they also participated in the decision and the adoption of this opinion.

 [***2]

OPINIONBY: ELDRIDGE

OPINION: [*193]

    [**831] The issue in this case concerns Article 28, § 5-108(e), of the Anne Arundel County Code. Section 5-108 is a zoning ordinance applicable to the location of marina facilities along the shoreline of rivers, the Chesapeake Bay, and other waters of Anne Arundel County. Subsection (e) of the ordinance imposes minimum distance restrictions between the situs of marina facilities and shellfish beds. The issue presented by the petitioner is whether an ordinance limiting the number of boat [*194] slips and the situs of marine facilities, for the purpose of protecting shellfish beds which lie beneath the tidal waters of the State, is within the zoning authority of Anne Arundel County. The issue presented by one of the respondents is whether the petitioner pursued the appropriate action.

   I.

   The facts in this case are not in dispute, although its procedural history is somewhat unusual. The case arises from the pursuit by Holiday Point Marina Partners of the required permits to enable it to extend its existing piers to create approximately 100 additional boat slips, resulting in more than 260 boat slips in all. The marina fronts Selby Bay in Anne Arundel County, is spread over 18 acres[***3] of fast land, and is zoned MB-1 and MC-1, permitting the operation of a commercial marina. Holiday Point successfully obtained approvals and permits to construct the proposed expansion of its facilities from the United States Army Corps of Engineers, the Maryland Department of Natural Resources, the Maryland Department of the Environment, and the Maryland Board of Public Works. Holiday Point then applied to Anne Arundel County for a building permit. The expansion, however, violated § 5-108(e) of the Anne Arundel County Code unless a zoning variance was obtained. n1 The County informed Holiday Point that, prior to the issuance of a building permit, a variance was required because the proposed slips were closer than one-half mile to an oyster bed.

n1 Section 5-108(e) states as follows:
 
"(e) Maritime Group Districts and Marina Facilities may not be located, as measured in a straight line through the water, closer than the following distances to shellfish beds:
 
(1) one-eighth of a mile for a marina with 50 or fewer slips;
(2) one-fourth of a mile for a marine with 51 to 100 slips, inclusive; and
(3) one half of a mile for a marina with more than 100 slips."

[***4]

   Holiday Point applied for and was denied a variance by the Zoning Hearing Officer. A timely appeal to the Anne Arundel County Board of Appeals was then filed. Prior to the decision [*195] of the Board of Appeals, however, Holiday Point, on January 11, 1994, filed a complaint for a declaratory judgment against the County in the Circuit Court for Anne Arundel County, requesting a declaratory judgment that § 5-108(e) was invalid.

   Thus, in early 1994, Holiday Point was pursuing both a declaratory judgment action in the circuit court and an administrative appeal before the Board of Appeals. In March 1994, the Selby Community Association, [**832] Inc., filed a motion to intervene in the circuit court declaratory judgment action; the motion was opposed by the County and Holiday Point. The circuit court denied the motion to intervene, and the Community Association appealed that denial to the Court of Special Appeals. While this appeal was pending, the parties to the declaratory judgment action consented to the intervention of the Community Association, and the Community Association voluntarily dismissed its appeal.

   Throughout the Spring and Fall of 1994 Holiday Point also actively pursued its administrative[***5] appeal of the Hearing Officer's denial of the variance. Holiday Point argued before the Board of Appeals that the variance should be granted because the oyster bed was not viable. Holiday Point also attacked the validity of § 5-108(e), arguing before the Board of Appeals that the County did not have the power to enact such an ordinance. On January 4, 1995, the Board of Appeals affirmed the denial of the variance. The Board found that the oyster bed was viable, but the Board refused to consider Holiday Point's challenge to the validity of § 5-108(e), stating that
 
"the Board does not believe that this is an issue that is appropriate for it to consider. This Board looks to the county code and attempts to apply the code provisions when it decides cases: if the code provisions are for some reason inapplicable, it is for a body other that this Board to make that determination."
 
Holiday Point immediately filed in the Circuit Court for Anne Arundel County an action for judicial review of the Board of [*196] Appeals' decision. The judicial review action was not consolidated in any manner with the declaratory judgment action.

   Meanwhile, the parties had filed cross-motions for summary[***6] judgment in the declaratory judgment case, and a hearing was held on January 11, 1995. Holiday Point argued that the County did not have the authority, under Maryland Code (1957, 1996 Repl. Vol.), Art. 25A, § 5, to enact § 5-108(e). Holiday Point maintained that (1) the authority to regulate oyster beds was not expressly delegated to the County, (2) regulation of oyster beds was outside of the traditional area of zoning concerns, (3) the County had no authority to regulate the land beneath the waters of the State, and (4) § 5-108(e) must yield to state and federal law under the doctrine of preemption.

   In response, the County asserted that (1) express delegation by the State to local subdivisions to regulate oyster beds is not the proper standard to determine the validity of a local zoning ordinance, (2) environmental protection is a valid basis for the exercise of local zoning authority, (3) the County had authority to regulate the land beneath the waters of the State under the principles set forth in Harbor Island Marina v. Calvert Co., 286 Md. 303, 407 A.2d 738 (1979), and (4) Holiday Point failed to identify any specific legislation or pervasive statutory scheme that preempted[***7] § 5-108(e).

   Additionally, the Community Association contended that no declaratory judgment should be rendered because the administrative and judicial review remedies had not been exhausted. The Community Association noted that, at the time of the filing of the declaratory judgment complaint and the cross motions for summary judgment, the Board of Appeals had not issued its decision. At the time of the hearing on the cross motions for summary judgment, however, the Board of Appeals had decided that Holiday Point was not entitled to a variance. Nevertheless, the Community Association argued that Holiday Point should not be permitted to pursue the case on two different tracks. The Community Association asserted [*197] that the issue should be resolved in the judicial review action and that a declaratory judgment cause of action did not lie.

   On January 20, 1995, the circuit court granted the County's Motion for Summary Judgment and denied Holiday Point's Motion for Summary Judgment. The court filed a declaratory judgment declaring as follows: (1) exhaustion of the administrative and judicial review remedy was not required because Holiday Point directly attacked the authority of the County[***8] to adopt § 5-108(e); (2) the "general grant of authority" in Art. 25A, § 5, "is broad enough to encompass the exercise by the County of [this] zoning authority;" [**833] and (3) § 5-108(e) was not preempted because it neither conflicted with state and federal legislation nor was there evidence of a comprehensive legislative scheme implying an intent to preempt. The circuit court made no rulings in the pending judicial review action.

   Holiday Point appealed the declaratory judgment, and the Court of Special Appeals, in November 1995, affirmed, holding that (1) the County was empowered to enact zoning laws for the purpose of protecting the environment, and (2) § 5-108(e) was not preempted by federal or state law. Holiday Point v. Anne Arundel Cty., 107 Md. App. 160, 666 A.2d 1332 (1995). At the time of the Court of Special Appeals' decision Holiday Point's action for judicial review of the zoning variance denial was still pending in the Circuit Court for Anne Arundel County. The judicial review action was "withdrawn" by Holiday Point on December 11, 1995.

   Holiday Point filed a petition for a writ of certiorari to review the decisions below in the declaratory judgment action, and this[***9] Court granted the petition.  Holiday Point Partners v. Anne Arundel County, 341 Md. 719, 672 A.2d 659 (1996). Holiday Point presents the following two issues:
 
"I. Whether Anne Arundel County exceeded its authority under the Maryland Express Powers Act by enacting Article 28, § 5-108(e) of the Anne Arundel county Code, which prohibits the location of marinas in state tidal wetlands in proximity to shellfish beds on purported [*198] concerns for water quality, shellfish and consumers of shellfish?
 
"II. Whether the general public laws and regulations of Maryland that protect water quality, shellfish and consumers of shellfish, and govern the location and construction of marinas in state wetlands preempt Article 28, § 5-108(e) of the Anne Arundel County Code?"
 
The Community Association presents the additional question of whether the declaratory judgment action should be dismissed because of Holiday Point's failure to exhaust the administrative and judicial review remedies. We shall first address the issue raised by the Community Association.

   II.

   Anne Arundel County is a charter county and, therefore, is subject to the Express Powers Act, Code (1957, 1996 Repl. Vol., [***10] 1997 Supp.), Art. 25A. That statute, in §§ 5(U) and 5(X), provides the zoning authority for all charter counties except Montgomery and Prince George's Counties. n2 Art. 25A, § 5(U), authorizes a charter county to establish a Board of Appeals and provides that such Board of Appeals have exclusive appellate jurisdiction over, inter alia, a variety of adjudicatory zoning matters. n3 See United Parcel [**834] v. People's Counsel, [*199] 336 Md. 569, 587-590, 650 A.2d 226, 235-237 (1994), and cases there discussed. Section 5(U) further provides for judicial review of the Board of Appeals' decisions.

n2 The zoning authority for Montgomery and Prince George's Counties is set forth in the Regional District Act, Code (1957, 1997 Repl. Vol., 1997 Supp.), Art. 28, § 7-01 et seq. See Montgomery County v. Revere Nat'l Corp., Inc., 341 Md. 366, 383, 671 A.2d 1, 9 (1996); Mossburg v. Montgomery County Md., 329 Md. 494, 502-503, 620 A.2d 886, 890 (1993); Chevy Chase View v. Rothman, 323 Md. 674, 685, 594 A.2d 1131, 1136 (1991).

n3 Art. 25A, § 5(U) states as follows:
 
"(U) County Board of Appeals

   "To enact local laws providing (1) for the establishment of a county board of appeals whose members shall be appointed by the county council; (2) for the number, qualifications, terms, and compensation of the members; (3) for the adoption by the board of rules of practice governing its proceedings; and (4) for the decision by the board on petition by any interested person and after notice and opportunity for hearing and on the basis of the record before the board, of such of the following matters arising (either originally or on review of the action of an administrative officer or agency) under any law, ordinance, or regulation of, or subject to amendment or repeal by, the county council, as shall be specified from time to time by such local laws enacted under this subsection: An application for a zoning variation or exception or amendment of a zoning ordinance map; the issuance, renewal, denial, revocation, suspension, annulment, or modification of any license, permit, approval, exemption, waiver, certificate, registration, or other form of permission or of any adjudicatory order; and the assessment of any special benefit tax: Provided, that upon any decision by a county board of appeals it shall file an opinion which shall include a statement of the facts found and the grounds for its decision. Any person aggrieved by the decision of the board and a party to the proceeding before it may appeal to the circuit court for the county which shall have power to affirm the decision of the board, or if such decision is not in accordance with law, to modify or reverse such decision, with or without remanding the case for rehearing as justice may require. Any party to the proceeding in the circuit court aggrieved by the decision of the said court may appeal from such decision to the Court of Special Appeals. The review proceedings provided by this subsection shall be exclusive."

[***11]

    Holiday Point did invoke the administrative procedures mandated by Art. 25A, § 5(U). Although the administrative and judicial review proceeding is not directly before us, it is important to point out that the Anne Arundel County Board of Appeals clearly erred in holding that it would not consider Holiday Point's challenge to the validity of § 5-108(e). This Court has consistently held over the past fifty years that the question of a zoning ordinance's validity, as applied to the property involved, is an appropriate issue for an administrative zoning agency. We have held that, if a restriction under a zoning ordinance cannot constitutionally or validly be applied, this is a proper ground for the administrative zoning agency to grant an exception or a variance. See, e.g., Maryland Reclamation Assocs. v. Harford County, 342 Md. 476, 491-492, 677 A.2d 567, 575 (1996) ("under Maryland law, the Harford County Board of Appeals would be authorized and required to consider any of the constitutional and other [*200] issues raised by Maryland Reclamation to the extent that those issues would be pertinent in the particular proceeding before the Board"); Insurance Commissioner v. Equitable Life Assurance Society,[***12] 339 Md. 596, 617-624, 664 A.2d 862, 873-876 (1995) ("The modern cases make it clear that the constitutionality of a statute as a whole can be initially decided in the administrative proceedings"); Arnold v. Prince George's Co., 270 Md. 285, 294-299, 311 A.2d 223, 227-231 (1973) (requiring a property owner, asserting that a zoning ordinance was unconstitutional as applied to his property, to exhaust his administrative remedy); Hartman v. Prince George's Co., 264 Md. 320, 323-325, 286 A.2d 88, 89-90 (1972) (reviewing numerous cases holding that constitutional arguments must be made in the statutorily prescribed administrative proceedings); Gingell v. Board of County Comm'rs, 249 Md. 374, 376, 239 A.2d 903, 904 (1968) (rejecting the plaintiff's argument that she need not exhaust her administrative remedy on the theory that only a court may declare the statute unconstitutional); Poe v. Baltimore City, 241 Md. 303, 307-308, 216 A.2d 707, 709 (1966) (finding that "it is particularly within the expertise of an administrative body such as the Board to marshal and sift the evidence presented in a hearing upon an application for a special exception and to make an administrative[***13] finding as to whether . . . the application of the ordinance to the property involved deprives the owner of any reasonable use of it"); Baltimore v. Seabolt, 210 Md. 199, 207, 123 A.2d 207, 210 (1956) (zoning appeals board was authorized to grant "'"exceptions" . . . by holding the [zoning] ordinance pro tanto invalid'"); Hoffman v. City of Baltimore, 197 Md. 294, 305-306, 79 A.2d 367, 372 (1951) ("Application for an 'exception' is an appropriate way to raise" the issue of whether a zoning ordinance is invalid).

   Consequently, the Board of Appeals should have ruled on Holiday Point's challenge to the validity of § 5-108(e). Furthermore, since the Board of Appeals erroneously failed to rule on this issue, Holiday Point, in its judicial review action, could have obtained a reversal of the Board of Appeals' decision because of that error. [*201]

   Holiday Point, however, withdrew its judicial review action and sought a final ruling on the validity of § 5-108(e) in the declaratory judgment action. The Community Association insists that Holiday Point erred by pursuing the wrong action in the circuit court. We agree.

   This Court has consistently held that, where there exists a remedy[***14] before a charter county's board of appeals under Art. 25A, § 5(U), an aggrieved party must invoke and exhaust the administrative and judicial review remedy provided by § 5(U).  Md. Reclamation [**835] v. Harford Cty., supra, 342 Md. at 494, 677 A.2d at 576; United Parcel v. People's Counsel, supra, 336 Md. at 588-589, 650 A.2d at 236; Hope v. Baltimore County, 288 Md. 656, 657-658, 421 A.2d 576, 577 (1980); Klein v. Colonial Pipeline Co., 285 Md. 76, 83, 400 A.2d 768, 772 (1979). This requirement is based on the plain language of Art. 25A, § 5(U), which states that "the review proceedings provided by this subsection shall be exclusive."

   Holiday Point, however, invokes an asserted exception to the requirement that the administrative and judicial review remedies under § 5(U) must be invoked and exhausted. Relying on this Court's decision in Harbor Island Marina v. Calvert Co., supra, 286 Md. 303, 407 A.2d 738, Holiday Point contends that, because it requested the court to declare the County's enactment of 5-108(e) invalid, it was not required to exhaust the administrative and judicial review procedures under Art. 25A, § 5(U).

   In cases where an administrative agency[***15] has primary jurisdiction, we have recognized a limited "constitutional" or "validity" exception to the normal requirement that administrative and judicial review remedies be invoked and exhausted. See Insurance Commissioner v. Equitable, supra, 339 Md. at 620-624, 664 A.2d at 874-876, for a discussion of this narrow exception. The very few cases applying this exception, however, were not ones where the administrative and judicial review remedy was the exclusive remedy.

   The principal case relied upon by Holiday Point and by the circuit court is Harbor Island Marina v. Calvert Co., supra, [*202] 286 Md. 303, 407 A.2d 738. We held in Harbor Island that, because the plaintiff had mounted a direct attack on the power of the County Commissioners of Calvert County to enact the disputed zoning ordinance, a judicial determination of the validity issue was permissible even though administrative remedies had not been exhausted. This Court stated that, because the constitutional attack was made upon the "validity of a general enactment as a whole," exhaustion was not required.  286 Md. at 308, 407 A.2d at 741.

   Harbor Island, however, is readily distinguishable from the instant case. [***16]That case involved Calvert County, a non-charter county which is not subject to the Express Powers Act, Code (1957, 1996 Repl. Vol., 1997 Supp.), Art. 25A. Rather, the applicable administrative and judicial review procedures for zoning matters in non-charter counties are set forth in Code (1957, 1995 Repl. Vol., 1997 Supp.), Art. 66B, §§ 4.04 - 4.08. The relevant sections of Art. 66B do not contain any language that makes the administrative and judicial review remedy exclusive.

   We are aware of only one other zoning or land-use case where this Court applied the so-called "constitutional" or "validity" exception. In Richmark Realty v. Whittlif, 226 Md. 273, 173 A.2d 196 (1961), residents of Baltimore City filed a suit in equity requesting that a Baltimore City zoning ordinance be declared illegal and void and that a building permit issued pursuant to the ordinance be revoked. The defendants raised the issue of exhaustion because the local residents had not availed themselves of the available administrative remedy. Again, Baltimore City is not subject to Art. 25A and the exclusivity language of § 5(U). Instead, the administrative and judicial review zoning procedures applicable[***17] to Baltimore City are contained in Code (1957, 1995 Repl. Vol., 1997 Supp.), Art. 66B, §§ 2.06-2.09, which do not contain any language of exclusivity.
 
   The General Assembly in Art. 25A, § 5(U), has expressly stated that the administrative and judicial review remedy applicable to the present case is "exclusive." The [*203] effect of such language is to abrogate any alternative legal or equitable remedies that might otherwise have existed. As explained in numerous cases, where the administrative and judicial review procedures are exclusive, neither a declaratory judgment action nor a common law or equitable action will lie. See Zappone v. Liberty Life Insurance Co., 349 Md. 45, 706 A.2d 1060 (1998); Bowman v. Goad, 348 Md. 199, 703 A.2d 144 (1997); Insurance Commissioner v. Equitable, supra, 339 Md. at 623, 664 A.2d at 876; Moats v. City of Hagerstown, 324 Md. 519, 529, 597 A.2d 972, 977 (1991); Muhl v. Magan, 313 Md. 462, 480-481, 545 A.2d 1321, 1330 (1988); [**836] Nordheimer v. Montgomery County, 307 Md. 85, 96-98, 512 A.2d 379, 384-386 (1986); Potomac Elec. Power v. P.G. County, 298 Md. 185, 189-191, 468 A.2d 325, 327 (1983); Apostol v. Anne [***18]  Arundel County, 288 Md. 667, 672-673, 421 A.2d 582, 585-586 (1980); White v. Prince George's Co., 282 Md. 641, 649-653, 387 A.2d 260, 265-267 (1978). This is true even though the validity of a statute on its face is being challenged. The so-called "constitutional" or "validity" exception to the requirement that a primary administrative remedy be first invoked and exhausted ordinarily has no application when the administrative and judicial review remedy is exclusive.  Insurance Commissioner v. Equitable, supra, 339 Md. at 623, 664 A.2d at 876 ("where the only avenue for relief is the statutorily prescribed administrative and judicial review proceedings, a constitutional challenge to a statute, whether on its face or as applied, must be . . . litigated in [that] proceeding"); Potomac Elec. Power v. P. G. County, supra, 298 Md. at 189-191, 468 A.2d at 327-328; Apostol v. Anne Arundel County, supra, 288 Md. at 674-675, 421 A.2d at 586 ("Harbor Island Marina v. Calvert Co., [supra, and similar] cases were not concerned with a situation where the only relief available is the special administrative and judicial review remedy provided by statute"). n4

n4 Despite some contrary language in a few earlier Maryland cases, this Court has consistently, for the last half-century, taken the position that the Legislature may properly require that an issue of validity or constitutionality be raised through the administrative process, and, as long as judicial review is available, there is no violation of the separation of powers principle set forth in Article 8 of the Maryland Declaration of Rights. See Insurance Commissioner v. Equitable Life Assurance Society, 339 Md. 596, 617-624, 664 A.2d 862, 873-876 (1995). See also Maryland Aggregates v. State, 337 Md. 658, 675-679, 655 A.2d 886, 896, cert. denied, Genstar Stone Prod. Co. v. Maryland, 514 U.S. 1111, 115 S. Ct. 1965, 131 L. Ed. 2d 856 (1995), and cases there cited.

[***19] [*204]

   Consequently, the Community Association correctly argued, both before the circuit court and on appeal, that no declaratory judgment action could be maintained in this case.

   III.

    Alternatively, even if we were to assume, arguendo, that the Board of Appeals had ruled on the question of § 5-108(e)'s validity and that the circuit court's judgment could be viewed as an affirmance of the administrative decision, Holiday Point would still not be entitled to relief. The circuit court correctly held that the County's zoning power extended to the regulation of the situs of piers and the number of boat slips, and that the local ordinance was not preempted by state law.

   A.

   There is no dispute that the County has the power, derived from Art. 25A, § 5(X), to enact zoning and planning laws. See Euclid v. Ambler Co., 272 U.S. 365, 47 S. Ct. 114, 71 L. Ed. 303 (1926); Hope v. Baltimore County, supra, 288 Md. at 665, 421 A.2d at 581; Anne Arundel County v. Ward, 186 Md. 330, 337, 46 A.2d 684, 687 (1946). Furthermore, a county's zoning authority ordinarily encompasses piers and wharves that are attached to the land.  People's Counsel v. Maryland Marine, 316 Md. 491, 498, 560[***20] A.2d 32, 35 (1989); Harbor Island Marina v. Calvert County, supra, 286 Md. at 317-323, 407 A.2d at 746-749.

   The question raised by Holiday Point, however, is whether Article 28, § 5-108(e), of the Anne Arundel County Code, which zones improvements attached to riparian land, is invalid because the ordinance takes into account the health of shellfish beds. The concern is that the shellfish beds in question are on land beneath tidal waters and, therefore, are [*205] generally owned by the State.  People's Counsel v. Maryland Marine, supra, 316 Md. at 502, 560 A.2d at 37; Potomac Sand & Gravel v. Governor, 266 Md. 358, 364, 293 A.2d 241, 244, cert. denied, 409 U.S. 1040, 93 S. Ct. 525, 34 L. Ed. 2d 490 (1972); Hirsch v. Md. Dep't of Nat. Resources, 288 Md. 95, 98, 416 A.2d 10, 12 (1980); Dep't of Nat. Resources v. Ocean City, 274 Md. 1, 5, 332 A.2d 630, 633 (1975); Causey v. Gray, 250 Md. 380, 387, 243 A.2d 575, 581 (1968); Green v. Eldridge, 230 Md. 441, 447, 187 A.2d 674, 677 (1963); Clark v. Todd, 192 Md. 487, 492, 64 A.2d 547, 549 (1949); Cahill v. Baltimore, 173 Md. 450, 455, [**837] 196 A. 305, 308 (1938); Adams v. Carey, 172 Md. 173, 182, 190 A. 815, 820[***21] (1937); Hodson v. Nelson, 122 Md. 330, 338, 89 A. 934, 937 (1914). See also State v. Applegarth, 81 Md. 293, 299, 31 A. 961, 962 (1895) ("oyster beds are the property of the State"). It is well settled that a county is not entirely free to zone State property.  People's Counsel v. Maryland Marine, supra, 316 Md. at 499, 560 A.2d at 36; City of Baltimore v. State, 281 Md. 217, 222-224, 378 A.2d 1326, 1329-1330 (1977).

   Two cases decided by this Court provide guidance regarding the zoning power of local governments when land under tidal waters is affected. In Harbor Island Marina v. Calvert County, supra, 286 Md. at 316-323, 407 A.2d at 745-749, a commercial marina filed a declaratory judgment action against Calvert County, challenging the County's power to enact ordinances for the purpose of providing orderly development of waterfront areas within the County. The marina asserted that the ordinances' regulation of tidal waters, the lands beneath the waters, and wetlands, was invalid. Judge J. Dudley Digges, writing for a unanimous Court, held that Calvert County had not exceeded its local zoning power. After reviewing numerous prior cases concerning riparian rights[***22] and governmental authority over them, the Court reaffirmed that improvements made and attached to riparian land were additions to the land and subject to a county's zoning power. The Court concluded (286 Md. at 322, 407 A.2d at 748):
[*206]
 
   "Reverting to a consideration of the present case, what we have before us is a policy decision which has existed for over two centuries -- when improvements are made into the navigable waters by a riparian proprietor, the land utilized in their construction, which prior to completion belonged to the State, for all practical purposes becomes a part of his fast land. Thus, any limitation upon the county's ability to zone which arises because the land in question belongs to the State does not apply to improvements attached to riparian land."
 
The Harbor Island opinion went on to note that in the Wetlands Act, Ch. 241 of the Acts of 1970, Code (1974, 1979 Cum. Supp.), § 9-201 of the Natural Resources Article, the General Assembly provided that a riparian owner "'may make improvements into the water in front of the land to preserve that person's access to the navigable water or protect the shore of that person against erosion'" and that such[***23] an improvement "'is the property of the owner of the land to which it is attached.'" 286 Md. at 322, 407 A.2d at 748-749. The Court then stated (286 Md. at 323, 407 A.2d at 749):
 
"Therefore, improvements erected pursuant to the grant contained in section 9-201 are extensions of the dry land to the same extent as those built under its predecessors, and are accorded the same protections and are subject to the same restrictions as developed in our prior cases. In the final analysis, we hold that Calvert County has the authority to reasonably regulate through zoning the exercise of the riparian right to wharf out because, under law dating back for more than 200 years, this right, when exercised, is nothing more than an extension of the shore land."

   The scope of a local government's power to zone riparian improvements was further examined in People's Counsel v. Maryland Marine, supra, 316 Md. 491, 560 A.2d 32. At issue in Maryland Marine was the determination by the Baltimore County Zoning Commissioner, the Baltimore County Board of Appeals, and the Circuit Court for Baltimore County, that the County, through its zoning authority, had the power to permit the construction[***24] of "a restaurant on top of piers and pilings [*207] over the tidal waters of Frog Mortar Creek." 316 Md. at 494, 560 A.2d at 33. This Court, again relying on the language of the Wetlands Act, § 9-201, stated that a riparian owner's right to construct improvements in the adjacent tidal waters was normally limited to those improvements that provide access to the waters or protect the shore against erosion. The Court also indicated that a County's zoning authority with regard to improvements in tidal waters, and a riparian owner's rights with regard to such improvements, are generally coextensive. The Court said that a "county's power to zone extends only to those improvements which the riparian owner has a right to build [**838] into the water bounding its property, because it is only in relation to these improvements that the riparian has the right to the use of the submerged land upon which the improvement is constructed." 316 Md. at 500, 560 A.2d at 36. We took the position that the proposed construction of the restaurant, out in the creek, neither preserved access to the waters nor prevented erosion. Consequently, because the riparian owner did not have the right to construct the restaurant, [***25] Baltimore County did not have the power under its zoning authority to permit the construction. In reaching this conclusion, however, the Court added an important caveat, saying (316 Md. at 506, 560 A.2d at 39):
 
"That construction of the proposed restaurant would not, within the contemplation of § 9-201, constitute an improvement to preserve access to navigable water or to protect the shore against erosion is, of course, equally clear. Thus, even though Baltimore County may have authority to zone permitted riparian improvements, it is not presently empowered to permit construction of the restaurant in this case. Nevertheless, in furtherance of its plan, Maryland Marine may seek to acquire, by purchase or lease from the State Board of Public Works, that part of the State's submerged land upon which the restaurant is planned to be erected. Section 9-201 of the Wetlands Act provides that '[a] right covered in this subtitle does not preclude the [riparian] owner from developing any other use approved by the Board [of Public Works].'"
[*208]

   The Harbor Island and Maryland Marine opinions clearly support Anne Arundel County's contention that its zoning authority encompasses[***26] the extension of Holiday Point's piers for the purpose of creating additional boat slips. We first note that, because the Harbor Island and Maryland Marine opinions indicated that a county's zoning authority over improvements in the State's tidal waters, and a riparian owner's right to construct such improvements, were generally coextensive, any doubts concerning the County's zoning authority in this case might raise similar doubts concerning Holiday Point's right to wharf out. Nevertheless, the construction or extension of piers to create boat slips is obviously for the purpose of access to the water. Under the Harbor Island and Maryland Marine opinions, this is both within an adjacent owner's riparian rights and within a county's zoning authority. Moreover, even if there could be any doubt about the matter, the record shows that Holiday Point has received a license from the Board of Public Works for the extension of its marina facilities. As suggested in Maryland Marine, such license from the Board of Public Works may operate to extend both the rights of riparian landowners and the zoning authority of local governments.

   Furthermore, as long as a zoning ordinance[***27] is otherwise within a county's zoning authority, the fact that a purpose of the regulation was to protect shellfish beds does not render the ordinance invalid. Protection of the environment and of natural resources has long been recognized as a valid purpose of local zoning and land use regulations. See, e.g., Schultz v. Pritts, 291 Md. 1, 20, 432 A.2d 1319, 1329 (1981) ("The various purposes of zoning regulations . . . are . . . 'to promote the conservation of natural resources; to prevent environmental pollution . . .,'" quoting in part Code (1957, 1978 Repl. Vol.), Art. 66B, § 4.03); Annapolis v. Annap. Waterfront Co., 284 Md. 383, 392-393, 396 A.2d 1080, 1085-1086 (1979) (holding that the City could consider the environmental effects of a proposed pier extension to create additional boat slips); Norbeck v. Montgomery County, 254 Md. 59, 63, 254 A.2d 700, 704 (1969) (upholding zoning regulations for the protection of open [*209] space and watershed); Ketchel v. Bainbridge Twp, 52 Ohio St. 3d 239, 242-243, 557 N.E.2d 779, 782 (Ohio 1990) cert. denied, 498 U.S. 1120, 111 S. Ct. 1073, 112 L. Ed. 2d 1178 (1991) (holding that conservation of ground water and the maintenance [***28]of a pollution-free water supply were proper objects of zoning); 1 Anderson's American Law of Zoning, § 7.33, at 822-824 (4th ed. 1996) ("Conservation of resources is, of course, an objective within" the zoning power. "Zoning has been approved where it undertook to prevent water pollution, to protect wetlands or other ecologically sensitive areas, to preserve shoreline ecological values, to preserve agricultural land, to prevent environmental [**839]damage due to quarrying, and to preserve energy"). See also Arden H. Rathkopf & Daren A. Rathkopf, Rathkopf's The Law of Zoning and Planning, §§ 3.02.07, 25.01.01, 31.03.12 (4th ed. 1997).

   B.

   Holiday Point alternatively contends that state legislation concerning shellfish, water quality, wetlands, and tidal waters has preempted the County's right to legislate in these areas.

   "Under our decisions, state law may preempt local law in one of three ways: 1) preemption by conflict, 2) express preemption, or 3) implied preemption." Talbot County v. Skipper, 329 Md. 481, 487-488, 620 A.2d 880, 883 (1993) (footnotes omitted). See Allied Vending v. Bowie, 332 Md. 279, 297-298, 631 A.2d 77, 86 (1993); Howard County v. PEPCO,[***29] 319 Md. 511, 522, 573 A.2d 821, 827 (1990); Board v. Harker, 316 Md. 683, 697, 561 A.2d 219, 226 (1989). In the present case, Holiday point urges both preemption by conflict and implied preemption.

   (1)

   In arguing that Article 28, § 5-108(e), of the Anne Arundel County Code conflicts with state law, Holiday Point asserts that, under state law, "a marina with greater than 100 slips need only be separated by 200 feet from a shellfish bed compared to the County's separation standard of 2,640 feet. [*210] Accordingly, on its face there is a clear conflict." (Holiday Point's Reply Brief at 15-16).

   Under Maryland law, with regard to asserted conflicts of the type claimed by Holiday Point, the controlling principle is as follows ( Talbot County v. Skipper, supra, 329 Md. at 487 n.4, 620 A.2d at 882-883 n.4):

   "A local ordinance is pre-empted by conflict when it prohibits an activity which is intended to be permitted by state law, or permits an activity which is intended to be prohibited by state law."
 
See Coalition v. Annapolis Lodge, 333 Md. 359, 380, 635 A.2d 412, 422 (1994); Allied Vending v. Bowie, supra, 332 Md. at 297 n.12, 631 A.2d at 86 n.12.

   The principal[***30] alleged conflicting "state law" invoked by Holiday Point is neither a statute nor a regulation. Instead, Holiday Point relies on a document published by the Maryland Department of the Environment entitled "Assessment Guidelines For Determining Shellfish Growing Area Classifications In And Around Marinas." In the document, there is a reference to a 1987 letter from the Secretary of the Environment in which the Secretary stated that
 
"the minimum restricted areas around a marina are established as:

11-50 slips:                  100 feet
51-100 slips:                 150 feet
greater than 100 slips:       200 feet."

 

   The purpose of the document containing guidelines, as well as the 1987 letter incorporated by reference therein, was clearly not to prescribe the location of marina facilities. Instead, as stated in the "Introduction" to the document, the guidelines relate to "restrictions on shellfish harvesting in and around marinas" because of "sewage discharge from the marina[s] . . . ." Furthermore, the "General Policy Specifications" of the document begin by stating: "This policy defines the restrictions on shellfish harvesting in and around marinas." The document was published pursuant to Code[***31] (1974, 1997 Repl. Vol.), § 4-742 of the Natural Resources Article. That [*211] entire section, as its heading indicates, relates to restrictions on the taking of shellfish because of possible sources of pollution. It does not deal with restrictions upon the possible sources of the pollution, such as restrictions on the location of marinas. n5

n5 Section 4-742 of the Natural Resources Article begins as follows (emphasis added):
 
"§ 4-742. Restrictions on taking of shellfish from polluted waters.

   (a) Department of the Environment authorized to restrict area. -- If the Department of the Environment determines by appropriate investigation that any area of waters of the State devoted to the production of storage of shellfish is polluted so that shellfish produced or stored in the area are a hazard to public health, it shall restrict the area for the catching or storing of shellfish. If the Department of the Environment finds it necessary to restrict an area of water for the taking and storing of shellfish because of the proximity of the area to the point of discharge of a sewage treatment plant or a point of overflow of a sewage pumping station, the Department of the Environment may increase or decrease the size of a restricted area in relation to the operational effectiveness of the sewage treatment plant or sewage pumping station."

   * * *

[***32]

   [**840] Assuming arguendo that the document relied on by Holiday Point can properly be viewed as "state law" for the purpose of the doctrine of preemption by conflict, there is no conflict between Article 28, § 5-108(e), of the Anne Arundel County Code and the state document. The local ordinance restricts the location of marina facilities, whereas the state document restricts the harvesting of shellfish. While both may be designed to further the ultimate public policy of protecting consumers from shellfish that may be dangerous to health, the local ordinance and the state document employ wholly different means to further such public policy. They regulate entirely separate and distinct activities. n6 Both courts below correctly [*212] held that there was no preemption by conflict. n7

n6 It should be noted that, even if the state law had regulated the situs of marina facilities, and had provided that no such facilities could be constructed within 200 feet of a shellfish bed, it would not necessarily follow that the state law and the local ordinance would be in conflict. When state law simply regulates a matter to a limited extent, our cases have not ordinarily attributed to the General Assembly an intent to preempt local law regulating the matter to a greater extent.  Coalition v. Annapolis Lodge, 333 Md. 359, 380-383, 635 A.2d 412, 422-424 (1994), and cases there discussed. Since, however, the "state law" invoked by Holiday Point does not regulate the situs of marina facilities, we need not explore this issue in the present case.

[***33] 

n7 While chiefly relying upon the state document restricting the harvesting of shellfish, Holiday Point also lists several state regulations which are claimed to conflict with the Anne Arundel County ordinance. Like the document, however, these regulations deal with matters which are separate and distinct from the requirements of the local zoning ordinance. All of the regulations relied upon are criteria for guiding state officials in granting or denying state wetlands permits. The co-existent relationship between such wetlands permits and local zoning was dealt with by us in Harbor Island Marina v. Calvert County, 286 Md. 303, 316-323, 407 A.2d 738, 745-749 (1979), and People's Counsel v. Maryland Marine, 316 Md. 491, 506-507, 560 A.2d 32, 39-40 (1989). Furthermore, several of these criteria concern dredging and filling operations. One of the regulations, COMAR 08.05.05.16, recodified as COMAR 26.24.04.03 in 1996, does set forth criteria for the grant or denial of a wetlands permit "for a new marina or marina expansion." This regulation contains no criteria specifying distances between piers and shellfish beds. More significantly, the regulation states that new marinas or the expansion of an existing marina shall be consistent with a local government's marina management plan and that "if there is a conflict between a local marina management plan and this subtitle, the more stringent regulation takes priority."

[***34]

   (2)

   Finally Holiday Point relies upon the doctrine of implied preemption, or, as it is sometimes called, preemption by occupation. The case-law dealing with this doctrine was recently summarized in Talbot County v. Skipper, supra, 329 Md. at 488-489, 620 A.2d at 883-884, as follows:

   "Generally, state law preempts by implication local law where the local law 'deal[s] with an area in which the [State] Legislature has acted with such force that an intent by the State to occupy the entire field must be implied,' County Council v. Montgomery Ass'n, 274 Md. 52, 59, 333 A.2d 596, 600 (1975). There is no particular formula for determining whether the General Assembly intended to preempt an entire area, Howard County v. Pepco, 319 Md. 511, 523, 573 A.2d 821, 828 (1990), and several factors have been considered in our cases. See, e.g., Board v. Harker, 316 Md. 683, 698, 561 A.2d 219, 226-227 (1989); National [*213]Asphalt Pavement Ass'n v. Prince George's County, 292 Md. 75, 78-80, 437 A.2d 651, 653-654 (1981); Rockville Grosvenor, Inc. v. Mont. Co., 289 Md. 74, 92-93, 422 A.2d 353, 363 (1980); County Council v. Montgomery Ass'n, supra, 274 Md. at 60-64, 333 A.2d at 601-603.
 
   "Nevertheless, [***35] we have stated that "'the primary indicia of a legislative purpose to preempt an entire field of law is the comprehensiveness with which the General Assembly has legislated in the field.'" Howard County v. Pepco, supra, 319 Md. at 523, 573 A.2d at [**841] 828, quoting Board v. Harker, supra, 316 Md. at 696-697, 561 A.2d at 226. See Ad + Soil, Inc. v. County Comm'rs, 307 Md. 307, 328, 513 A.2d 893, 904 (1986); National Asphalt Pavement Ass'n v. Prince George's County, 292 Md. 75, 78-79, 437 A.2d 651, 653 (1981); County Council v. Montgomery Ass'n, supra, 274 Md. at 61, 333 A.2d at 601."
 
Furthermore, even where the General Assembly so comprehensively covers an area that an intent to occupy the field generally is implied, the General Assembly may also intend to leave some specific matters in that field open to local legislation. In this situation, local legislation regarding those specific matters is obviously not preempted. See Talbot County v. Skipper, supra, 329 Md. at 492, 620 A.2d at 885.

   In arguing that Article 28, § 5-108(e), of the Anne Arundel County Code is invalid under the doctrine of implied preemption, Holiday Point asserts that "the State's regulation over tidal wetlands, [***36] water quality and shellfish is so pervasive that the State legislature clearly intended to occupy the field, thereby preempting Anne Arundel County Code § 5-108(e)." (Holiday Point's brief at 33). Holiday Point's characterization of the relevant "field" of legislation, however, is overly broad. It is similar to an argument that, because there is so much state legislation pertaining to the environment, all local legislation pertaining to the environment is impliedly preempted.

   As discussed in part (1) above, state regulation of the harvesting of shellfish is quite distinct from the regulation of the situs of piers. Likewise, state legislation in various fields [*214] to insure healthful water quality is distinguishable from local zoning regulations restricting the length of piers.

   The only comprehensive state statute which is applicable to all pier extensions into the tidal waters of the State, and which requires a state permit for every such pier extension, is the Wetlands Act of 1970. As earlier discussed, this Court has made it clear that local zoning regulations can properly apply to piers as extensions of the land even though the construction and extension of piers are also regulated[***37] by the state Wetlands Act. See People's Counsel v. Maryland Marine, supra, 316 Md. 491, 560 A.2d 32; Harbor Island Marina v. Calvert County, supra, 286 Md. at 316-323, 407 A.2d at 745-749. Moreover, as previously noted, supra n.7, the administrative regulations under the Wetlands Act specifically authorize more "stringent" local regulations with respect to the "location of all new marinas or expansion of an existing marina." COMAR 26.24.04.03.F.

   Consequently, there is no merit in Holiday Point's argument that Article 28, § 5-108(e), of the Anne Arundel County Code is impliedly preempted.
 
JUDGMENT OF THE COURT OF SPECIAL APPEALS VACATED, AND CASE REMANDED TO THAT COURT WITH DIRECTIONS TO VACATE THE JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AND TO REMAND THE CASE TO THE CIRCUIT COURT WITH DIRECTIONS TO DISMISS THE DECLARATORY JUDGMENT ACTION. PETITIONER TO PAY THE COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS.

                       
DEPARTMENT OF LABOR, LICENSING AND REGULATION v. BARBARA M.HIDER et al. 
No. 63, September Term, 1997
 
COURT OF APPEALS OF MARYLAND
 
349 Md. 71; 706 A.2d 1073; 1998 Md. LEXIS 150

 March  11, 1998, Filed

   SUBSEQUENT HISTORY: As Corrected May 15, 1998.

PRIOR HISTORY: [***1]

   Certiorari to the Court of Special Appeals (Circuit Court for  Anne Arundel  County). H. Chester Goudy, JUDGE.

DISPOSITION: JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED. CASE REMANDED TO THAT COURT FOR THE ENTRY OF A JUDGMENT AFFIRMING THE JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY. COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID BY THE RESPONDENTS, BARBARA M. HIDER AND VIRGINIA L. WHITE.

CORE TERMS:  misconduct, patient, claimant, disqualification, nursing home, hearing examiner, gross misconduct, disqualified, unemployment, multi-purpose, aggravated, distress, misbehavior, discharged, substantial evidence, station, terminated, suspension, emergency, resident, unemployment compensation, unemployment insurance, myocardial infarction, nurse, earned wages, reemployed, deliberate, weekly, emergency situation, transferred

COUNSEL: ARGUED BY: Andrew D. Auerbach (J. Joseph Curran, Jr., Attorney General; Lynn M. Weiskittel, Assistant Attorney General; Norman R. Buchsbaum, Lynn K. Edwards, Law Offices Norman R. Buchsbaum, on brief) all of Baltimore, MD, FOR PETITIONER.
 
ARGUED BY: Frank C. Hider, Jr. (Hider & Associates, P.C., of Dallas, Tx; Karen Kiefer of Scottsdaqle, PA) both on brief, FOR RESPONDENTS.

JUDGES: ARGUED BEFORE: Eldridge, Rodowsky, Chasanow, Raker, Wilner; Cathell, Dale R. (specially assigned) and Smith, Marvin H. (retired, specially assigned), JJ. Opinion by Rodowsky, J.

OPINIONBY: Rodowsky

OPINION: [*73]
  
[**1074] Opinion by Rodowsky, J.
 
This is an unemployment compensation case. The Board of Appeals (the Board), applying Maryland Code (1991, 1997 Cum. Supp.), § 8-1003 of the Labor and Employment Article, temporarily disqualified two claimants from receiving unemployment compensation insurance benefits based on a finding of misconduct. n1 In the judicial review process the Court of Special Appeals concluded that the Board had erred as a matter of law in two respects.  Hider v. Department of Labor, [*74] Licensing & Regulation,[***2] 115 Md. App. 258, 693 A.2d 17 (1997). First, the intermediate appellate court considered that the Board had found misconduct on a basis other than the basis on which the employer relied for terminating the claimants' employment.  Id. at 276, 693 A.2d at 25. Second, the court concluded that § 8-1003 required intentional conduct.  Id. at 281, 693 A.2d at 28. As explained below, we shall reinstate the decision of the Board.

n1 Unless otherwise indicated, all statutory references are to Md. Code (1991, 1997 Cum. Supp.), Labor and Employment Article.

   The Board's decision in this case was rendered when the Board was part of the Department of Economic and Employment Development. A 1995 reorganization of the administration of unemployment insurance transferred the Board from the Department of Economic and Employment Development to the Department of Labor, Licensing and Regulation. See Chapter 120 of the Acts of 1995.

   The claimants, Barbara M. Hider (Hider) and Virginia L. White (White), were employed by[***3] North Arundel Nursing and Convalescent Center, Inc. (the Nursing Home). The Nursing Home terminated the employment of Hider and White on the day after an emergency situation arose involving a chronically ill, sixty-nine-year-old patient at the Nursing Home (the Patient). A claims examiner in the Office of Unemployment Insurance determined that Hider and White were not disqualified. The Nursing Home administratively appealed, and an evidentiary hearing was held before a hearing examiner of the Board.

   The hearing examiner concluded that Hider and White were temporarily disqualified because they were "discharged for misconduct connected with the work within the meaning of [ § 8-1003]." The Board affirmed, adopting the findings of fact and conclusions of law of the hearing examiner. On the claimants' petition for judicial review, the Circuit Court for Anne Arundel County affirmed. That judgment was reversed by the Court of Special Appeals. Hider, supra.

   This Court then granted the petition for certiorari of the Department of Labor, Licensing and Regulation (the Department) that raises two questions:

   "1. Did the lower court err by failing to apply the substantial evidence [***4]test to the Board's factual finding that claimants were discharged from their employment for failing to respond to an emergency situation?
 
   "2. Did the lower court err by interpreting the simple 'misconduct' provision in the unemployment insurance law to apply only to purposeful misbehavior?" [*75]

   Before the hearing examiner five witnesses testified for the employer and five for the claimants, compiling an agency record of testimony and exhibits comprising 917 pages. The overview of this record is that the Patient [**1075]lived in a part of the Nursing Home designated as Station Two Back. On October 6, 1994, the day of the events giving rise to this case, Robin Anderson (Anderson), a licensed practical nurse (LPN), was assigned to Station Two Back and was immediately in charge of the Patient. White, an LPN and a nursing supervisor, was that day responsible for Station Two Back and for two other nursing stations. Hider, a registered nurse, was the Assistant Director of Nursing. Hider had been employed by the Nursing Home from November 1989, and White had been employed there from August 1992.

   Employer's witnesses, Activities Director Sandra Osborne (Osborne), Assessment Nurse Melinda Miller (Miller), [***5] and Food Services Supervisor Lorraine Hill, testified that at approximately 12:30 p.m. on October 6, 1994, a page was broadcast into the multi-purpose room where they, along with Hider, were working on resident care plans. White, who was also in the room on a break, answered the page on the telephone in the multi-purpose room and, after hanging up, turned to those gathered in the room and asked if they had ever heard the Patient complain of his heart hurting. Miller responded that she had not and that such a complaint warranted further investigation. Hider then asked White to help her retrieve supplies from Hider's car for a bridal shower that was to be held in the Nursing Home later that same day. According to Osborne, White replied, "'We'll get the food out of the car, and then we'll dial 911 when we get back.'" Hider and White left the multi-purpose room, laughing, and exited the building.

   Concerned for the well-being of the Patient, Miller left the multi-purpose room to check on him. When she arrived at the Patient's room, she found him to have an elevated pulse, to be diaphoretic (i.e., sweating profusely), and to be stating repeatedly, "My heart hurts." After consulting[***6] with Director of [*76] Nursing Marcy Eley (Eley), Miller called 911, and the Patient was transferred by ambulance to North Arundel Hospital.

   Before the hearing examiner, Hider and White denied that a page ever came into the multi-purpose room regarding the Patient's condition. They stated that the first time the Patient's status was brought to their attention was in the hallway as they were about to exit the building. There Anderson, the charge nurse, approached Hider and White to give them an update of the Patient's condition. Hider and White both testified that Anderson did not ask them for assistance or convey to them in any way that the Patient was in distress. They said that Anderson simply wanted to make them aware that she had medicated the Patient for agitation in accordance with a physician's instructions. Hider testified that she asked Anderson what the Patient's vital signs were and, when Anderson replied that she had not taken them, both Hider and White instructed her to return to the Patient's room and take his vital signs. Hider and White then left the building and returned in approximately five minutes to discover that 911 had been called for the Patient.

    Anderson, called[***7] as a witness by the claimants, testified that when she approached Hider and White in the hallway she told them that she thought the Patient should be sent to an acute care hospital via 911 because he was complaining of chest pains. Although she did not use the word, "emergency," when referring to the Patient's condition, Anderson testified that she conveyed to Hider and White her opinion that it was indeed an emergency and that the Patient should be evaluated at an acute care hospital. Anderson testified that Hider and White instructed her to return to the Patient's room and take his vital signs. Anderson said that White appeared to be confused when Anderson spoke to the latter in the hall and that it later occurred to Anderson that White may not have been the person who responded to the page.

   On October 7, 1994, following a brief fact-finding investigation, the Nursing Home's Administrator, Sandra Mennerick (Mennerick), and Director of Nursing Eley, met with Hider [*77] and White to discuss what had transpired the preceding day. The meeting ended with the termination of Hider and White.

   In findings of fact adopted by the Board, the hearing examiner did not credit the testimony of the[***8] Nursing Home's witnesses regarding a page responded to by White in the multi-purpose room. The hearing examiner [**1076]did, however, find that Anderson had approached Hider and White in the hallway, had conveyed to them her concern that the Patient's condition constituted an emergency, and that Hider and White, "apparently [misunderstanding] the gravity of the situation," failed to assist Anderson with the Patient.

   In an evaluation of the evidence that was also adopted by the Board, the hearing examiner stated:
 
"The employer has failed to show an intentional, wanton disregard of the rights that the employer can expect. The claimants used poor judgment in failing to follow Ms. Anderson to check the specific patient prior to running a brief personal errand. This Hearing Examiner will hold that the claimants['] misjudgment in this particular case amounts to misconduct. The purpose of a nursing home is for quality care and service to patients."
 
The claimants were denied benefits for the week beginning October 2, 1994, and for the nine weeks immediately following.

   The scope of judicial review of a determination by the Board in an unemployment compensation insurance case is set[***9] forth in § 8-512(d):

   "Scope of review. -- In a judicial proceeding under this section, findings of fact of the Board of Appeals are conclusive and the jurisdiction of the court is confined to questions of law if:

   (1) findings of fact are supported by evidence that is competent, material, and substantial in view of the entire record; and
 
(2) there is no fraud."
 
Under this statute, the reviewing court shall determine only: "(1) the legality of the decision and (2) whether there was [*78] substantial evidence from the record as a whole to support the decision." Baltimore Lutheran High Sch. Ass'n v. Employment Sec. Admin., 302 Md. 649, 662, 490 A.2d 701, 708 (1985). The reviewing court may not reject a decision of the Board supported by substantial evidence unless that decision is wrong as a matter of law. See Department of Econ. & Employment Dev. v. Propper, 108 Md. App. 595, 604, 673 A.2d 713, 717 (1996). The test for determining whether the Board's findings of fact are supported by substantial evidence is whether reasoning minds could reach the same conclusion from the facts relied upon by the Board. See Baltimore Lutheran, 302 Md. at 661-62, 490 A.2d at 708.[***10]

   The decision of this case is governed by § 8-1003, which provides:

   "(a) Grounds for disqualification. -- An individual who otherwise is eligible to receive benefits is disqualified from receiving benefits if the Secretary finds that unemployment results from discharge or suspension as a disciplinary measure for behavior that the Secretary finds is misconduct in connection with employment but that is not:
 
(1) aggravated misconduct, under § 8-1002.1 of this subtitle; or
 
(2) gross misconduct under § 8-1002 of this subtitle.

   (b) Duration of disqualification. -- A disqualification under this section shall:

   (1) begin with the first week for which unemployment is caused by discharge or suspension for misconduct; and
 
(2) continue for a total of at least 5 but not more than 10 weeks, as determined by the Secretary, based on the seriousness of the misconduct."

   I

   The Department does not dispute that, for misconduct to be disqualifying under this statute, the behavior that the Secretary finds to be misconduct must be the same behavior that the Secretary finds to be the reason for the discharge. That is, the basis for the discharge and the basis for a finding of [***11][*79] misconduct must be one and the same, as determined by the Secretary.

   In the instant matter, when Mennerick terminated the claimants' employment, she acted in the belief that the claimants were made aware of the Patient's distress in the response by telephone to the overhead page heard in the multi-purpose room. The claimants contend that, because the Board relied on Anderson's hallway conversation with the claimants as furnishing them notice of the Patient's distress, the Board relied on misconduct different from the misconduct that resulted in termination of employment. The variation in evidentiary detail, however, does not alter the substance of the misconduct.

   [**1077] In the instant case, the Board found that "the claimants were terminated by the employer on or about October 7, 1994, for failing to respond to an emergency situation" involving the Patient. The Board further concluded that this behavior constituted misconduct under § 8-1003. The basis for the discharge and the basis for a finding of misconduct being one and the same, i.e. , the claimants' failure to respond to a medical emergency, the Board disqualified them from receiving unemployment insurance benefits for a ten-week [***12]period.

   There was substantial evidence from which the Board could reasonably have determined that the claimants were terminated for their failure to respond to an emergency medical situation. We base this holding on the following facts.

   Mennerick, the Administrator of the Nursing Home, testified to what she told Hider and White on October 7, 1994, regarding the reason for their termination:
 
"I told them based on the information that was presented to me, that I felt that they were not the credible people, and that under those circumstances that they failed to respond to a patient that was in distress. That that was extremely against any of our policies, and that I didn't want them working there any longer." [*80]

   Eley, the Director of Nursing, corroborated Mennerick's testimony, stating that Mennerick said the following to Hider and White at the October 7 meeting:
 
"That when two of our more responsible charge nurses and people who are supposed to be our top nurses would leave the building when someone is in distress, having cardiac distress, and they were to leave the building at that point, rather than taking care of them, that this is not an appropriate action, and it is not[***13] something that we can tolerate at our facility. Our standard of nursing, our standing [sic] of what we want to administer to our residents, the type of care we give, is more than that. And that if this were true, then we could not keep them on our staff."

   Hider's understanding of why she was discharged lends further support to the view that Hider and White were discharged for "failing to respond to a patient that was in distress." Answering a question on direct examination as to her understanding of the reason for her termination, Hider stated:
 
"My understanding was the fact that I had no knowledge of a patient being in distress. ... The statement that I had made that I did not have that knowledge was ignored, [and] they said I knew when I walked out of the building."

   The following colloquy which took place before the hearing examiner is also relevant in determining the reason for Hider and White's termination:
 
"[Counsel for Hider]: The question is, if Ginny White was on station two within five minutes of the time Ms. Miller left the multi-purpose room, walked down to station two, checked the patient, assessed him, got you to assess him and called 911, would that[***14] be a reasonable response for a unit supervisor in this situation?
 
"Ms. Eley: If she hadn't gone outside the building and left the building before that time interval took place. This whole thing is based upon leaving the building after receiving a call for help." [*81]

   Further, the employer's written response, signed by Mennerick, on the unemployment insurance agency's form requesting information concerning White's separation from employment stated:
 
 "On 10/6/94 failed to respond to a request for assistance regarding patient's health status and during the situation left the building to get personal items from her car. The resident was sent out 911 & resulted in a myocardial infarction." n2 

n2 On October 6, 1994, the Patient was admitted to the cardiac unit of North Arundel Hospital to rule out any cardiac event. On October 8, 1994, it was determined that the Patient had not had a myocardial infarction, and, consequently, he was transferred to a regular medical floor of the hospital. On October 20, 1994, the Patient was discharged from North Arundel Hospital and transferred back to the Nursing Home. The hospital record completed at the time of the Patient's discharge indicated that he had been admitted as a result of bilateral pneumonia and not as a result of having suffered a myocardial infarction. In her testimony before the hearing examiner, Mennerick stated that, at the time she responded to the request for separation information, she had not read the transfer summary and believed the Patient to have suffered a myocardial infarction.

[***15]
 
[**1078] The response on the form questionnaire with respect to Hider was similar. n3

n3 The precise wording on Hider's report is as follows:
 
"10/6/94 Failed to respond to a request for assistance regarding patient's health status and during the situation left the building to get personal items from the car. This resident was sent out 911 & resulted in a myocardial infarction."

   There was substantial evidence that the claimants were terminated for their failure to respond to an emergency medical situation. n4

n4 The Court of Special Appeals rejected the Board's finding that Hider and White were terminated for failing to respond to a medical emergency and concluded instead that, "the Nursing Home fired them for 'lying and not assisting the charge nurse with a patient after an alleged call in the multi-purpose room.'" Hider, 115 Md. App. at 275, 693 A.2d at 25. Assuming that there was evidence to support such a conclusion, the inquiry of the reviewing court is whether there is substantial evidence to support the Board's factual findings. It is exclusively the province of the Board to resolve conflicting evidence, and, where inconsistent inferences can be drawn from the same evidence, it is exclusively the province of the Board to draw the inference. See Baltimore Lutheran, 302 Md. at 663, 490 A.2d at 709.

[***16] [*82]

   II

   The Court of Special Appeals alternatively held that the Board's decision was wrong as a matter of law because claimants' behavior did not constitute misconduct under § 8-1003.
 
Rejecting the Board's conclusion that claimants' use of "poor judgment" in failing to respond to a medical emergency constituted misconduct under § 8-1003, the Court of Special Appeals stated:
 
"We agree [with the decisions of other jurisdictions] that the term 'misconduct' implies an act done wilfully with a wrongful intent. We hold that in order for conduct to constitute 'misconduct' under [ § 8-1003], an employee's misbehavior must be intentional and that mere errors in judgment do not amount to misconduct within the meaning of the statute."
 
Hider, 115 Md. App. at 281, 693 A.2d at 28 (footnote omitted; emphasis added). Construing § 8-1003 in the context of the statutory scheme in which it was enacted compels a different conclusion.

   In enacting the unemployment compensation program, the legislature created a graduated, three-tiered system of disqualifications from benefits based on employee misconduct. The severity of the disqualification increases in proportion to the seriousness[***17] of the misconduct. A finding of misconduct pursuant to § 8-1003 results in a claimant's being disqualified from receiving unemployment benefits for a period of five to ten weeks. The term, "misconduct," as it is used in § 8-1003, is undefined in that section. See Allen v. Core Target City Youth Program, 275 Md. 69, 86, 338 A.2d 237, 247 (1975). Section 8-1002 provides that a claimant who is discharged as a result of "gross misconduct" is disqualified from receiving unemployment benefits until the claimant is reemployed and has earned wages equal to at least twenty times the claimant's [*83] weekly unemployment benefit amount. n5 Only misconduct that is "deliberate and willful" or misconduct that is "wanton" can qualify as "gross misconduct." A finding of "aggravated misconduct" under § 8-1002.1 causes a claimant to be disqualified from receiving unemployment benefits until the claimant is reemployed and has [**1079] earned wages equal to at least thirty times the claimant's weekly unemployment benefit amount. n6 [*84] "Actual malice" is required for a finding of "aggravated misconduct."

n5 Section 8-1002 provides:

   "(a) 'Gross misconduct' defined. -- In this section 'gross misconduct':

   (1) means conduct of an employee that is:
 
   (i) deliberate and willful disregard of standards of behavior that an employing unit rightfully expects and that shows gross indifference to the interests of the employing unit; or
 
(ii) repeated violations of employment rules that prove a regular and wanton disregard of the employee's obligations; and
 
(2) does not include:

   (i) aggravated misconduct, as defined under § 8-1002.1 of this subtitle; or
 
(ii) other misconduct, as defined under § 8-1003 of this subtitle.

   (b) Grounds for disqualification. -- An individual who otherwise is eligible to receive benefits is disqualified from receiving benefits if unemployment results from discharge or suspension as a disciplinary measure for behavior that the Secretary finds is gross misconduct in connection with employment.

   (c) Duration of disqualification. -- A disqualification under this section shall:

   (1) begin with the first week for which unemployment is caused by discharge or suspension for gross misconduct as determined under this section; and
 
(2) continue until the individual is reemployed and has earned wages in covered employment that equal at least 20 times the weekly benefit amount of the individual."

[***18] 

n6 Section 8-1002.1 provides:

   "(a) 'Aggravated misconduct' defined. -- (1) In this section, 'aggravated misconduct' means behavior committed with actual malice and deliberate disregard for the property, safety, or life of others that:

   (i) affects the employer, fellow employees, subcontractors, invitees of the employer, members of the public, or the ultimate consumer of the employer's product or services; and
 
(ii) consists of either physical assault or property loss or damage so serious that the penalties of misconduct or gross misconduct are not sufficient.

   (2) In this section, 'aggravated misconduct' does not include:

   (i) gross misconduct, as defined under § 8-1002 of this title; or
 
(ii) misconduct, as defined under § 8-1003 of this title.

   (b) Grounds for disqualification. -- An individual who otherwise is eligible to receive benefits is disqualified from receiving benefits if unemployment results from discharge or suspension as a disciplinary measure for behavior that the Secretary finds is aggravated misconduct in connection with employment.
 
   (c) Duration of disqualification. -- A disqualification under this section shall:

   (1) begin with the first week for which unemployment is caused by discharge or suspension for aggravated misconduct as determined under this section; and
 
(2) continue until the individual is reemployed and has earned wages in covered employment that equal at least 30 times the weekly benefit amount of the individual."

[***19]

   Construing § 8-1003 to require intentional misbehavior would blur, if not dissolve, the distinction between the misconduct provision of § 8-1003 and the gross misconduct provision of § 8-1002. A finding of § 8-1003 misconduct under the construction applied by the Court of Special Appeals would be tantamount to a finding of gross misconduct under § 8-1002(1)(i), which requires misbehavior that is "deliberate and willful." Furthermore, a finding of "wanton" misbehavior, sufficient to support a finding of gross misconduct under § 8-1002(1)(ii) would be, absent intent, insufficient to support a finding of simple misconduct under § 8-1003, notwithstanding the fact that the penalty imposed for gross misconduct is more severe than that imposed for simple misconduct. Such a construction would clearly upset the carefully crafted statutory framework of the Unemployment Insurance Law. Therefore, the Court of Special Appeals erred in construing the misconduct provision of § 8-1003 to require intentional misbehavior.

   The Court of Special Appeals placed considerable reliance on a 1941 Wisconsin case, Boynton Cab Co. v. Neubeck, 237 Wis. 249, 296 N.W. 636 (1941), for the proposition[***20] that § 8-1003 requires intentional misbehavior. The statute at issue in that case imposed an absolute disqualification from unemployment benefits if the employee was discharged for misconduct. [*85] Boynton Cab, 296 N.W. at 638. Thus, the statute in Boynton Cab is more analogous to §§ 8-1002 and 8-1002.1 than it is to § 8-1003.

   In Rogers v. Radio Shack, 271 Md. 126, 314 A.2d 113 (1974), this Court adopted the following as a "reasonable" definition of "misconduct" as that term was used in the predecessor to § 8-1003:

   "'The term, "misconduct," as used in the Statute, means a transgression of some established rule or policy of the employer, the commission of a forbidden act, a dereliction of duty, or a course of wrongful conduct committed by an employee, within the scope of his employment relationship, during hours of employment, or on the employer's premises.'"
 
Id. at 132, 314 A.2d at 117. In the context of unemployment insurance benefits, "'the "wrongness" of the conduct must be judged in the particular employment context.'" Employment Sec. Bd. v. LeCates, 218 Md. 202, 208, 145 A.2d 840, 844 (1958) (quoting P.H. Sanders, Disqualification for Unemployment Insurance, [***21]8 Vand. L. Rev. 307, 334 (1955)).

   Noting that, "a nursing home is for quality care and service to patients," the Board concluded that claimants' use of "poor judgment" in failing to respond to an emergency situation satisfied the Rogers definition of misconduct. There was substantial evidence from which the Board could reasonably have concluded that claimants were derelict in their duty.

   The hearing examiner was entitled to credit the testimony that the claimants did indeed receive a request for assistance from a nurse [**1080] concerned about a patient in distress, that the claimants did not respond to this request, and that they instead left the Nursing Home building on a personal errand. The hearing examiner was similarly entitled to credit the testimony of Director of Nursing Eley, that, "if a nurse calls for help in assessing one of their residents because of any significant change in [the resident's] condition, they should go immediately and offer assistance to that nurse." Failure to do [*86]so, testified Administrator Mennerick, "was extremely against any of [the Nursing Home's] policies."

   For the foregoing reasons, we reverse.

   JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED. [***22] CASE REMANDED TO THAT COURT FOR THE ENTRY OF A JUDGMENT AFFIRMING THE JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY. COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID BY THE RESPONDENTS, BARBARA M. HIDER AND VIRGINIA L. WHITE. EACH PARTY SHALL BEAR THEIR OWN COSTS. 

Baltimore Door v. Raynor Assoc. 
Pet. Docket No. 547, September Term, 1997
 
COURT OF APPEALS OF MARYLAND
 
349 Md. 102; 707 A.2d 88; 1998 Md. LEXIS 159

 March  11, 1998, Decided

NOTICE: 

 [*1]  DECISION WITHOUT PUBLISHED OPINION 

PRIOR HISTORY: (No. C-97-36555AA, Circuit Court for  Anne Arundel  County).

OPINION: PETITION FOR WRIT OF CERTIORARI denied. 

Art Miller & Assoc. v. Parrott 
Pet. Docket No. 387, September Term, 1997
 
COURT OF APPEALS OF MARYLAND
 
348 Md. 522; 704 A.2d 1243; 1998 Md. LEXIS 76

 February  11, 1998, Decided

NOTICE: 

 [*1]  DECISION WITHOUT PUBLISHED OPINION 

PRIOR HISTORY: (Circuit Court for  Anne Arundel  County).

OPINION: Petition for Writ of Certiorari denied. 

JACK GRESSER et ux. v. ANNE ARUNDEL COUNTY, MARYLAND;ANNAPOLIS ROAD, LTD. v. ANNE ARUNDEL COUNTY, MARYLAND; ANNAPOLIS ROAD, LTD. v.ANNE ARUNDEL COUNTY, MARYLAND 
Nos. 20, September Term, 1997, 21, September Term, 1997, 22,September Term, 1997
 
COURT OF APPEALS OF MARYLAND
 
349 Md. 542; 709 A.2d 740; 1998 Md. LEXIS 13

 January  28, 1998, Filed

   PRIOR HISTORY: [***1] Certiorari to the Court of Special Appeals (Circuit Court for  Anne Arundel  County. H. Chester Goudy, JUDGE. Case # C-93-6223OL.
 
Certiorari to the Court of Special Appeals (Circuit Court for  Anne Arundel  County). H. Chester Goudy, JUDGE. Case # C-93-04789.
 
Certiorari to the Court of Special Appeals (Circuit Court for  Anne Arundel  County. H. Chester Goudy, JUDGE. Case # C-92-12564OC.

DISPOSITION: JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED. CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO VACATE THE INJUNCTION AND DECLARATORY JUDGMENT AND REMAND THIS CASE TO THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID BY ANNE ARUNDEL COUNTY.

CORE TERMS:  adult, ordinance, film, license, arcade, zoning, injunction, summary judgment, adult bookstore, theater, motion picture theater, certificate, bookstore, zone, display, motion picture, intermediate, moratorium, cease, sexual conduct, magazines, obscene, conditional use, sadomasochistic, articulated, regulation, licensing, issuance, invalid, unenforceable

COUNSEL: ARGUED BY Andrew H. Levine (Robert B. Schulman, Harry Levy, Schulman, Treem, Kaminkow & Gilden, P.A. of Baltimore, MD) on brief. ARGUED BY: William E. Seekford of Towson, MD, FOR PETITIONER.
 
ARGUED[***2] BY David A. Plymyer, Deputy County Attorney, (Phillip F. Scheibe, County Attorney, Anne Arundel County, of Annapolis, MD) all on brief, FOR RESPONDENT.

JUDGES: ARGUED BEFORE Bell, C. J.; Eldridge, Rodowsky, Chasanow, Raker, McAuliffe, John F. and Karwacki, Robert L. (Retired, specially assigned), JJ. Opinion by Chasanow, J.
 
OPINIONBY: Chasanow

OPINION: [*543]
 
[**740] Opinion by Chasanow, J.
 
Filed: January 28, 1998
 
We granted certiorari to the Court of Special Appeals in these three consolidated cases in which the intermediate appellate [*544] court reviewed a ruling by the Circuit Court of Anne Arundel County (the County) that granted summary judgment in favor of the respondent Anne Arundel County. The summary judgment order, dated June 7, 1995, determined that an Anne Arundel County ordinance regulating the location and operation [**741] of adult bookstores, film arcades, and motion picture theaters was "legal" and ordered that the petitioners immediately cease use and operation of an adult film arcade. The relevant facts were summarized by the Court of Special Appeals as follows:

   "For several years, [petitioner] Annapolis Road, Ltd. (ARL) operated an adult bookstore on property owned by [petitioners] [***3] Jack and Brindel Gresser at 1656 Annapolis Road in Anne Arundel County. It sold books, magazines, and videos containing explicit sexual material. It also operated at that location what are sometimes referred to as 'peep shows' -- private booths containing coin-operated video machines that display similar kinds of material. The battle between ARL and the county over the operation of ARL's business extends back at least to 1984. In May of that year, a county detective seized a number of books and magazines from the store that were found to be obscene. ARL was later convicted in criminal court of unlawfully displaying those items.

   At some point, the county enacted an ordinance requiring 'peep shows' of the type operated by ARL to have a Class Y license. That ordinance is not now before us, but it appears that some question arose as to whether it was sufficiently specific to pass Constitutional muster. On July 15, 1991, the County Council enacted a second ordinance (Bill No. 68-91) imposing a moratorium on the issuance of Class Y licenses until better standards could be developed. The moratorium took effect August 7, 1991. On July 29, county officials inspected the bookstore and found[***4] a number of peep show machines that were not covered by Class Y licenses. ARL closed the business and submitted applications [*545] for the required licenses. In light of the moratorium, however, the county took no immediate action on the applications. That led to a lawsuit by ARL in U.S. District Court challenging the moratorium.

   On November 21, 1991, the County Council enacted Bill No. 98-91, purporting to deal in a more specific and comprehensive way with the operation of adult bookstores and adult theaters. The enactment of that ordinance, which repealed the existing law governing Class Y licenses and set forth revised procedures for the issuance of those licenses, thus made ARL's challenge to the moratorium and the earlier ordinance moot. The Federal court dismissed the pending action, along with claims that the moratorium itself constituted a violation of ARL's rights under 42 U.S.C. § 1983. That dismissal was affirmed by the U.S. Court of Appeals for the Fourth Circuit.  Annapolis Road, Limited v. Hagner, 966 F.2d 1441 (1992 WL 120209, Unpublished Opinion 1992).

    In a preamble to Bill No. 98-91, the County Council declared its finding, based on evidence presented to[***5] it, that sexually oriented businesses have a harmful effect on the area in which they are located and contribute to neighborhood blight and that they therefore require regulation in order to protect neighborhoods from nuisance and deterioration.

   That regulation, as set forth in the ordinance, took two forms. One form was reenactment of the requirement, through the addition of new sections 2-1101 through 2-1113 to art. 16 of the County Code, that 'adult film arcades' have a Class Y license in order to operate. The ordinance defined the term 'adult film arcade' as a place containing one or more display devices that, for commercial entertainment or amusement purposes, show images depicting sadomasochistic abuse, sexual conduct, or sexual excitement. The ordinance set forth procedures and conditions for applying for the license as well as substantive requirements with respect to the operation of an adult film arcade. Operation of an adult film arcade without a Class Y license was made a misdemeanor and was also subject to injunction. [*546]
 
The second form of regulation, which itself was in two parts, was effected through additions to the county zoning laws contained in art. 28 of the County [***6]Code. The first aspect of the zoning regulation was the requirement of a special zoning certificate of use for adult bookstores and adult motion picture theaters. Art. 28, § 1-128(a) already contained a [**742] general requirement that no premises or structure, other than a single-family residence, could be used or altered until a zoning certificate of use was issued by the Office of Planning and Zoning. The 1991 ordinance added a new provision, § 1-128(e), requiring a zoning certificate of use specifically for an 'adult bookstore' and an 'adult motion picture theater,' both of which terms were defined elsewhere in the ordinance. n1 Adult film arcades were included within the definition of 'adult motion picture theater.' The obtention of the special zoning certificate of use was made a prerequisite to obtaining a Class Y license; a copy of the certificate had to be included with the application for the license.

n1 "Amendments to § 1-101 of art. 28 defined an adult bookstore as a commercial establishment that, as one of its principal business purposes, sells or rents books, magazines, periodicals, or other printed matter, or photographs, motion pictures, videotapes, slides, or other visual representations that depict or describe sadomasochistic abuse, sexual conduct, or sexual excitement, as those terms are defined in Md. Code art. 27, § 416A, or instruments, devices, or paraphernalia designed for use in connection with sexual conduct. An 'adult motion picture theater' was defined in § 1-110 as a place in which films of a similar character as those materials contained in an adult book store are shown."

[***7]

   The second aspect of the zoning regulation was to exclude adult bookstores and adult motion picture theaters entirely from the C1 (Local Retail), C2 (Commercial Office), and C3 (General Commercial) zones, exclude adult motion picture theaters as a permitted use in the C4 (Highway Commercial) zone, and restrict those operations as conditional uses in the C4 and W3 (Heavy Industrial) districts. n2 Five conditions [*547] were imposed on the location of those operations in the C4 and W3 districts, namely:

n2 "Under the preexisting law, 'bookstores' generally were permitted uses in the C1 and C3 zones and 'indoor theaters' or 'motion picture theaters' were permitted uses in the C1, C2, C3, and C4 zones. Bill No. 98-91 removed the adult operations from the C1, C2, and C3 zones and as a permitted use in the C4 zone by excluding adult bookstores from the scope of 'bookstore' and excluding adult motion picture theaters from the scope of 'indoor theater' and 'motion picture theater.'"

   (1) they had to be at least 1,000[***8] feet from the boundary line of any dwelling, library, park, school, playground, child care center, church or other place of worship, or other adult bookstore or adult motion picture theater;

   (2) all windows, doors, and other apertures had to be blackened or obstructed to prevent persons on the outside from viewing the interior;

   (3) the proprietor, owner, and employees were required to prohibit access by anyone under 18 years of age;

   (4) if the business was an adult motion picture theater, it was not to be used for the display of obscene films or other performances; and
 
(5) if it was an adult motion picture theater, it had to have the off-street parking required for theaters generally.

   Any existing adult bookstore or adult motion picture theater that would not be in compliance with the new requirements was allowed to continue as a nonconforming use for one year after notice from the Office of Planning and Zoning. By Bill No. 101-92, enacted and signed into law on December 8, 1992, that period was reduced to six months.

   ARL chose not to apply for the newly authorized Class Y license but instead reopened its store without a license. On December 4, 1992, after discovering that[***9] the business had been reopened, the county filed suit against ARL, contending that it was operating an adult film arcade without a Class Y license. It asked that the operation be enjoined until the license was obtained. The court entered an ex parte injunction, followed, on December 18, 1992, by an interlocutory injunction, restraining ARL and its employee [*548] from operating an adult film arcade during the pendency of the litigation. That action has resulted in Appeal No. 460.

   In June, 1993, ARL filed an action against the county for declaratory and injunctive relief. It acknowledged that its [**743] business involved the display, sale, and rental of books, magazines, and videotapes, a portion of which included themes of a sexual nature, although it denied that any of those materials contain descriptions or depictions of sadomasochistic abuse, sexual conduct, or sexual excitement. ARL averred that its operation was in a C3 zone, that its attempts to obtain a Class Y license had been 'thwarted by the actions of the County and the Department of Inspection and Permits,' that it had attempted to register the operation as a lawful nonconforming use but was informed that the nonconforming use must[***10] cease on June 16, 1993, that the county had notified every owner of land on which adult businesses are operated that those operations must cease, that the licensing and zoning schemes embodied in the ordinance 'leaves no existing adult businesses in Anne Arundel County,' and that there was no factual basis for such a regulation.

   In light of its allegation that none of the materials it displayed contained descriptions or depictions of sadomasochistic abuse or sexual conduct or excitement, ARL asked for a declaratory judgment that it was not subject to Ordinances 98-91 and 101-92. To the extent it was subject to those ordinances, it asked for a declaratory judgment that they were 'unconstitutional' for a variety of reasons. ARL claimed that the ordinances were invalid because they were impermissibly enacted as emergency legislation and involved more than one subject matter, presumably in contravention of the County Charter. It also averred that they were unconstitutional because (1) they sought to regulate by licensing and zoning requirements conduct subject to criminal penalties, (2) the Class Y licensing fee of $2,500 or $300 for each display device imposed a content-based fee[***11] unrelated to the proven cost necessary to regulate the activity, (3) the ordinances constituted an unlawful prior restraint on [*549]protected speech with insufficient guidelines to govern the issuance of a zoning certificate of use for adult businesses, (4) they sought to regulate the configuration, lighting, and content of adult film arcades without any basis or reason, (5) they failed to allow for reasonable alternative avenues of communication, (6) they did not further any specific governmental interest, and (7) they were not narrowly tailored to affect only the articulated unwanted secondary effects of adult businesses and thus contained greater restrictions than were necessary to achieve the desired results.

   As ancillary relief, ARL asked for an injunction to restrain county officials from taking any action to enforce the ordinances against its business. That case has produced Appeal No. 462.

   On August 5, 1993, the county filed the third of the three actions, against the Gressers. The county averred that the Gressers were allowing their property, located in a C3 zone, to be used as an adult bookstore and adult motion picture theater, which uses are limited to C4 and W3 zones as conditional[***12] uses. The ability of the Gressers to continue those uses as lawful nonconforming ones expired, said the county, on June 16, 1993, and it therefore asked that the Gressers be enjoined from using the property for any use not allowed in a C3 zone, and specifically as an adult bookstore or adult motion picture theater. That action has produced Appeal No. 461.

   On August 12, 1993, the court granted an interlocutory injunction in the second case (No. 462), restraining the county from taking any action to compel ARL to cease operation of its business, pending the action and subject to further order of the court. In October, the court consolidated Cases 2 and 3 (Nos. 462 and 461). The first action (No. 460), in which the court had enjoined ARL from operating an adult film arcade without a Class Y license, proceeded for a time on its own.

   On November 3, 1993, this Court affirmed the interlocutory injunction issued in Appeal No. 460, finding no merit in ARL's seven claims of unconstitutionality and charter violations. [*550] The Court of Appeals denied ARL's petition for certiorari on March 10, 1994; subsequently, the U.S. Supreme Court also denied certiorari. In December, 1994, the county[***13] enacted yet another ordinance (Bill No. 39-94), which [**744] amended § 1-101 of art. 28 to exclude a commercial establishment from the definition of 'adult bookstore' if less than 20% of its merchandise on display consists of the books, magazines, devices, or other material specified in the definition or less than 20% of its usable floor area is used for the display of those items.

   At some point thereafter, No. 460 was consolidated with the other two cases, and all three were heard in the circuit court on cross motions for summary judgment. In light of the 1994 ordinance and the fact that less than 20% of ARL's stock consisted of the specified items, the county urged that the operation no longer qualified as an adult bookstore and that those aspects of the cases concerning the operation of an adult bookstore were therefore moot.

   On June 7, 1995, the court filed an opinion and order granting the county's motion for summary judgment and ordering that ARL and the Gressers immediately cease the operation of an adult film arcade at the Annapolis Road location. The court noted the county's concession that ARL no longer qualified as an adult bookstore and that its zoning enforcement action was[***14] therefore moot, at least as to the bookstore, but decided to address the validity of the zoning provisions anyway. In fact, that is the only aspect of the dispute that the court did address in its opinion; it said very little about the licensing provisions. Nonetheless, the court concluded its opinion with a finding that the entire ordinance was valid and, in its order, directed that [petitioners] immediately cease the operation of the adult film arcade. The court issued no specific ruling regarding the bookstore operation."
 
Annapolis Road v. Anne Arundel County, 113 Md. App. 104, 107-114, 686 A.2d 727, 729-32 (1996).

   The circuit court summary judgment opinion and order contained the following conclusion:

   [*551] "In light of the foregoing, this Court finds that the challenged County ordinances are legal and that Defendants[] are operating an adult film arcade on the Premises without a Class Y license or zoning certificate of use in violation of the Anne Arundel County Code."

   Less than one month after the circuit court's opinion and order, the United States Court of Appeals for the Fourth Circuit filed en banc opinions declaring parts of adult bookstore ordinances adopted[***15] in Harford and Prince George's Counties invalid. 11126 Baltimore v. Prince George's County, Md., 58 F.3d 988 (4th Cir.), cert. denied, 516 U.S. 1010, 116 S. Ct. 567, 133 L. Ed. 2d 492 (1995); Chesapeake B & M, Inc. v. Harford County, Md., 58 F.3d 1005 (4th Cir.), cert. denied, 516 U.S. 1010, 116 S. Ct. 567, 133 L. Ed. 2d 492 (1995). Petitioners, ARL and the Gressers, then filed a motion with the circuit court to alter or amend its judgment based on these rulings. The court denied the motion. The County, however, recognizing the impact of these Fourth Circuit decisions, conceded in the Court of Special Appeals that "'the licensing requirement for adult film arcades codified as Article 16, §§ 2-1101 through 2-1113 of the County Code, and the requirement for a special zoning certificate of use for adult film arcades codified at Article 28, § 1-128(e), both enacted by Bill No. 98-91, are unenforceable.'" Annapolis Road, 113 Md. App. at 115-16, 686 A.2d at 733. The intermediate appellate court held that, "for the reasons assigned by the Fourth Circuit Court in the aforementioned cases, the provisions conceded by the county to be unenforceable are, indeed, unenforceable." [***16]Annapolis Road, 113 Md. App. at 127, 686 A.2d at 738. This concession and the antecedent Fourth Circuit cases should have resulted in the vacating of the circuit court's injunction since it was conceded that the only two clearly enunciated violations by the defendants were not enforceable. Instead, the Court of Special Appeals affirmed the injunction by finding violations of other aspects of the ordinances. The intermediate appellate court also held the ordinances constitutional for reasons that may not have been raised below and may not have been decided by the circuit court's summary judgment opinion and [*552]order. We must reverse the intermediate appellate court's affirmance of the injunction and, because the case must go back to the trial court, we will also remand to that court [**745] for any additional arguments on the constitutionality of the ordinances at issue.

   It is a general rule that in appeals from the granting of a motion for summary judgment, absent exceptional circumstances, Maryland appellate courts will only consider the grounds upon which the lower court granted summary judgment, and if those grounds were erroneous, we will not speculate that summary judgment might have[***17] been granted on other grounds not reached by the trial court. "Where the judgment appealed from is entered on motion for summary judgment, the appellate court ordinarily will review only the issue decided by the circuit court." T.H.E. Ins. v. P.T.P. Inc., 331 Md. 406, 409 n.2, 628 A.2d 223, 224 n.2 (1993), see also Boyer v. State, 323 Md. 558, 588, 594 A.2d 121, 136 (1991); Orkin v. Holy Cross Hospital, 318 Md. 429, 435, 569 A.2d 207, 210 (1990); Three Garden v. USF & G, 318 Md. 98, 107-08, 567 A.2d 85, 89 (1989). Since the only two ordinance violations mentioned as a basis for the lower court's summary judgment injunction were determined not to constitute permissible bases for an injunction, the appropriate appellate procedure would be to reverse and remand for further proceedings. Thus, because the Court of Special Appeals affirmed the granting of an injunction for reasons not decided by the trial judge and apparently not raised below, we must vacate this decision and order the case remanded to the trial court for further hearing on the request for an injunction.

   The case should also be remanded to the trial court for a further hearing on the constitutionality of[***18] the Anne Arundel County ordinances. It is unclear what the trial judge's opinion encompassed when he rather summarily "declared" that the Anne Arundel County ordinances were "legal." He was obviously only ruling on the arguments made by the parties, so the effect of his decision was to determine that the ordinances were not invalid for any of the reasons raised. We [*553] suggest that when upholding the constitutionality of statutes or ordinances, where there are several constitutional challenges, trial judges should do more than simply declare that the statutes or ordinances are constitutional. That all encompassing pronouncement is generally not helpful or even accurate because the judge is ordinarily considering only the constitutional challenges raised by the parties. What the trial judge in the instant case was probably holding and should have articulated was that the ordinances at issue were not unconstitutional for any of the reasons raised by the parties. It is obvious from the record that several additional constitutional challenges were raised on appeal and ruled on by the Court of Special Appeals.
 
The first reason why remand to the trial court is necessary is that the Fourth [***19]Circuit in the previously mentioned cases struck down parts of the statutory scheme found "legal," and the intermediate appellate court as well as all of the parties agree that the only articulated reasons given by the trial judge to issue the injunction in the instant cases are invalid. Second, there are several issues that were decided by the Court of Special Appeals that were not decided by the trial judge, and the parties should have further opportunity to develop the record and present their arguments in the trial court.

   For example, one of the ordinances at issue, County Code Art. 28, § 3-403, classifies adult bookstores and adult motion picture theaters as conditional uses in the C4-Highway Commercial District and the W3-Heavy Industrial District. The County apparently has no written or established procedures for obtaining approval of a conditional use. The Court of Special Appeals noted this and stated "it is not clear to us what the actual process is for obtaining approval as a conditional use. There are extensive provisions relating to the procedure for obtaining a special exception, but the zoning law is silent with respect to conditional use approval." Annapolis Road,[***20] 113 Md. App. at 132-33, 686 A.2d at 741. This amorphous administrative procedure is coupled with the requirement that an adult motion picture theater "was not to be used for the display of obscene films or other performances." The [*554] Court of Special Appeals agreed with the county that condition four was an objective condition and that the issuance of a zoning certificate of use was simply a ministerial act. "If the applicant's [**746] use is authorized by the zoning ordinance -- if the facility is in a C4 or W3 zone and the five objective conditions are satisfied -- the certificate must be granted." Annapolis Road, 113 Md. App. at 134, 686 A.2d at 742. The intermediate appellate court may not have considered that in deciding whether a theater is displaying an obscene film for the purposes of satisfying condition four, a county official might be given discretion to determine what is obscene and on the basis of that determination deny a conditional use certificate. Such a grant of discretion might be unconstitutional.  C.f. Jakanna v. Montgomery County, 344 Md. 584, 600-01, 689 A.2d 65, 72 (1997). We should have a record clearly establishing whether there is any discretion given to a county[***21] official to decide not to issue a conditional use permit because in his or her opinion condition four is not met. Without expressing any opinion on the validity of the ordinances or the issues raised by petitioners, we shall vacate the injunction since the only grounds articulated for granting summary judgment and issuing an injunction against the petitioners are conceded and found to be erroneous, and we shall remand the case to the intermediate appellate court with instructions to remand to the trial court for a full hearing on the constitutionality of the ordinances and whether an injunction should be issued.

   JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED. CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO VACATE THE INJUNCTION AND DECLARATORY JUDGMENT AND REMAND THIS CASE TO THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID BY ANNE ARUNDEL COUNTY. 

TERRY DEWAIN BRIGGS v. STATE OF MARYLAND 
No. 24, September Term, 1997
 
COURT OF APPEALS OF MARYLAND
 
348 Md. 470; 704 A.2d 904; 1998 Md. LEXIS 9

 January  22, 1998, Filed

   PRIOR HISTORY: [***1]

   Appeal from the Circuit Court for  Anne Arundel  County pursuant to certiorari to the Court of Special Appeals. Eugene M. Lerner, JUDGE.

DISPOSITION: JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY REVERSED. COSTS TO BE PAID BY ANNE ARUNDEL COUNTY.

CORE TERMS:  authorization, computer system, unauthorized, password, hacker, intentionally, willfully, exceeding, network, interrupt, user, permission, fine, computer systems, computer data, malfunction, misdemeanor, communicate, accessing, retrieve, instruct, judgment of acquittal, legislative history, legislative intent, computer software, criminalize, punishable, authorize, breaking, accessed

COUNSEL: ARGUED BY: Bradley A. Thomas of Washington, DC, FOR APPELLANT.
 
ARGUED BY: Mary Ann Ince, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General, on brief) of Baltimore, MD., FOR APPELLEE.

JUDGES: ARGUED BEFORE: Bell, C.J.; Eldridge, Rodowsky, Chasanow, Raker, Wilner and Karwacki (retired, specially assigned), JJ. Opinion by Raker, J.

OPINIONBY: Raker

OPINION: [*471]
 
[**905] Opinion by Raker, J.
 
Terry Dewain Briggs appeals his conviction for the crime of unauthorized access to computers, in violation of Maryland [*472] Code (1957, 1996 Repl. Vol., 1997 Supp.) Article 27, § 146(c). n1 The primary issue raised in this case is the meaning of the statutory requirement of access "without authorization" as used in § 146. The question we must answer is whether an employee who is entitled to use an employer's computer system in connection with employment duties, but who exceeds the scope of that authorization, is acting in a manner proscribed by Article 27, § 146. Briggs contends that his conduct did not [**906]come within the prohibition of the statute. We agree, and accordingly, shall reverse.

n1 Unless otherwise specified, all statutory references herein shall be to Maryland Code (1957, 1996 Repl. Vol., 1997 Supp.) Article 27.

[***2]
 
I.

   In November, 1994, the Scarborough Group, Inc. (Scarborough), a medium sized securities investment company, hired Terry Briggs as a computer programmer and system administrator. Briggs, a twenty-three-year old computer specialist, was hired to program and design software to maintain the company computer system. As part of his job responsibilities, he entered data in the computer system and placed passwords n2 on the files to secure the data. The management of the entire computer system was entrusted to Briggs. Following a dispute on July 24, 1995, about the terms of his employment contract, Briggs resigned as an employee of the company. 

n2 A password, the most common form of user authentication, is used to prevent unauthorized access to a computer system. It is a sequence of characters that one must enter prior to gaining access to a computer. See Michael P. Dierks, Symposium: Electronic Communications and Legal Change, Computer Network Abuse, 6 HARV. J. L. & TECH. 307, 311 (1993).

   Shortly[***3] after Briggs left the company, Scarborough realized that some of its computer files were secured with passwords known only to Briggs. Scarborough and Briggs were unable to resolve the situation. Scarborough filed a civil suit against Briggs, and also contacted the Anne Arundel County police. [*473]

   The State charged Briggs in a two count criminal information: count one, theft of computers, in violation of Article 27, § 342(a)(1) n3 and, count two, unauthorized access to computers, in violation of Article 27, § 146(c)(2). At trial, Scarborough contended that Briggs changed the passwords two days before the meeting about Briggs's employment contract, and put them in a subdirectory named "ha-ha he-he," dated July 22, 1995 by the computer. Scarborough maintained that Briggs never had permission to place the company files in a directory and to protect the file with passwords, without anyone else in the company having access to the passwords. Although he denied any knowledge about "ha-ha he-he," Briggs admitted that he placed passwords on company files months earlier as part of his job in securing files, but that he had difficulty remembering the passwords because so much time had passed. Briggs[***4] suggested that Scarborough filed criminal charges against him in order to discredit him as a government witness in a Securities and Exchange Commission investigation that Briggs had initiated alleging that certain activities at Scarborough violated federal security regulations. Briggs maintained that the computer date on the password subdirectory had been changed to incriminate him. 

n3 The jury acquitted Briggs of the theft charge.

   The State alleged that Briggs intentionally and willfully and without authorization accessed a computer system to interrupt the operation of the computer system and computer services. In his motion for judgment of acquittal, Briggs argued that he was not guilty as a matter of law (that the statute did not apply to his activities) and as a matter of fact (that he was fulfilling his employment responsibilities). Briggs reasoned that Article 27, § 146 was not intended to apply to authorized computer users who, arguably, used their positions to cause harm to their employers by misusing[***5] the computer. The State argued that Briggs was guilty of unauthorized access, because although Briggs was authorized to access the computer system, he was not authorized to access the system in such a way as to interrupt the operation of the computer services of [*474] the system. The trial court denied Briggs's motion for judgment of acquittal, and the jury found Briggs guilty of unauthorized access to computers in violation of Article 27, § 146(c)(2)(i). The court sentenced Briggs to one year incarceration, with all but two days suspended, two years supervised probation, 150 hours of community service, and a fine of $500. The court also ordered him to cooperate with Scarborough and required him to release any remaining password information and client files. Briggs noted a timely appeal to the Court of Special Appeals. We granted certiorari on our own motion before consideration by that court.

   [**907] Appellant argues before this Court that Article 27, § 146 criminalizes the conduct of an individual who intentionally and willfully accesses a computer without authorization and is inapplicable to conduct that can be characterized as only exceeding authorized access. He concludes that the statute[***6] is inapplicable on its face because, as part of his employment, he was authorized to access the computer system. The purpose of the statute, Appellant continues, was to deter unauthorized users from breaking into computer systems, i.e., to prevent "hackers" n4 from gaining unauthorized access. Briggs distinguishes operating a computer system without authorization [*475]from exceeding authorized access by using the computer in an improper manner. He concludes that application of this statute to his conduct is contrary to legislative intent. 

n4 The term "hacker" has been defined as "a person who views and uses computers as objects for exploration and exploitation." NATIONAL INSTITUTE OF JUSTICE, U.S. DEPT OF JUSTICE, COMPUTER CRIME: CRIMINAL JUSTICE RESOURCE MANUAL xvi (2d ed. 1989) (hereinafter CRIMINAL JUSTICE RESOURCE MANUAL). A "hacker" commonly refers to a "computer user who intends to gain unauthorized access to a computer system." Michael P. Dierks, Symposium: Electronic Communications and Legal Change, Computer Network Abuse, 6 HARV. J. L. & TECH. 307, 310 n.7 (1993). The word "hacker" has become synonymous with a computer criminal, and typically refers to a person who breaks into computer networks. Id. Originally, however, the term "hacker" referred to the members of The Tech Model Railroad Club of Massachusetts Institute of Technology (TMRC) and the term "hack" referred to "'a project undertaken or a product built not solely to fulfill some constructive goal, but with some wild pleasure, taken in mere involvement.'" Id. (quoting STEVEN LEVY, HACKERS: HEROES OF THE COMPUTER REVOLUTION 23 (1984)). The terms "hack" and "hacker" found their way into the computing world when the members of TMRC began work on the digital computers at Massachusetts Institute of Technology. The TMRC resents the application of the term "hacker" to mean the committing of illegal acts, maintaining that words such as "thieves," "password crackers," or "computer vandals" are better descriptions.

[***7]

   The State contends that even though access for other activities may have been authorized, a person, whether he is an employee, "hacker," or otherwise, violates the statute when that person "intentionally, willfully, and without authorization" accesses a computer system or any part of a computer system to cause the malfunction or interrupt the operations of the computer system or any part of that system. The State maintains that there was sufficient evidence to support the verdict because Briggs did not have authority to place passwords on the files without anyone else in the company having those passwords, and that he did so with the intent of interrupting the operation of the computer system.
 
II.

   The standard for review of the denial of a motion for judgment of acquittal is "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); see also State v. Albrecht, 336 Md. 475, 478-79, 649 A.2d 336, 337 (1994). We do not inquire into the credibility of witnesses, [***8] or weigh the evidence to ascertain whether the State has proven their case beyond a reasonable doubt; that is the responsibility given to the trier of fact. Applying the above standard of review, we conclude that the conduct in this case does not constitute the crime of unauthorized access to computers, and the motion for acquittal should have been granted.

   Article 27, § 146 provides, in pertinent part: 
 
(c) Illegal access.--(1) A person may not intentionally, willfully, and without authorization access, attempt to access, or cause access to a computer, computer network, computer software, computer control language, computer [*476] system, computer services, computer data base, or any part of these systems or services.

   (2) A person may not intentionally, willfully, and without authorization access, attempt to access, or cause access to a computer, computer network, computer software, computer control language, computer system, computer services, computer data base, or any part of these systems or services to:

   (i) Cause the malfunction or interrupt the operation of a computer, computer network, [**908] computer software, computer control language, computer system, computer[***9] services, computer data base, or any part of these systems or services; or

   (ii) Alter, damage, or destroy data or a computer program stored, maintained, or produced by a computer, computer network, computer system, computer services, computer database, or any part of these systems or services.

   (3) A person may not intentionally, willfully, and without authorization:

   (i) Identify or attempt to identify any valid access codes; or

   (ii) Distribute or publicize any valid access codes to any unauthorized person.
 
Access is defined in § 146(a) as follows:
 
(9) "Access" means to instruct, communicate with, store data in, retrieve data from, or otherwise make use of equipment including, but not limited to, computers and other data processing equipment or resources connected therewith.
 
To support a conviction for illegal access to computers under § 146(c)(2)(i), the State must prove: (1) that Briggs intentionally and willfully accessed a computer or computer system; (2) that the access was without authorization; and (3) the access was with the intent to interrupt the operation of the computer services. We need not address Appellant's[***10] factual argument that he was authorized to place passwords on Scarborough's computer system, because we find the second element dispositive and hold that Appellant's access to the computer [*477] was not "without authorization" within the meaning of the statute. n5 When faced with a question of statutory construction, we look first to the plain meaning of the words of the statute, with the goal to ascertain and effectuate legislative intent. Whack v. State, 338 Md. 665, 672, 659 A.2d 1347, 1350 (1995). We give the words of the statute their ordinary and natural meaning.  Gargliano v. State, 334 Md. 428, 435, 639 A.2d 675, 678 (1994). If the language of the statute is plain and clear and expresses a meaning consistent with the statute's apparent purpose, no further analysis is ordinarily required. Id. at 435, 639 A.2d at 678. On the other hand, if the language of the statute is ambiguous or unclear, "we must consider 'not only the literal or usual meaning of the words but their meaning and effect in light of the setting, the objectives and purpose of the enactment,' in our attempt to discern the construction that will best further the legislative objectives or goals." Id. at [***11] 436, 639 A.2d at 678 (quoting Tucker v. Fireman's Fund Ins. Co., 308 Md. 69, 75, 517 A.2d 730, 732 (1986)). 

n5 We recognize that "business, economic, and white-collar crimes have rapidly changed as computers proliferated into the activities and environments in which these crimes occur." NATIONAL INSTITUTE OF JUSTICE, U.S. DEPT OF JUSTICE, COMPUTER CRIME: CRIMINAL JUSTICE RESOURCE MANUAL, 1 (2d ed. 1989). Scholars have noted that serious economic loss linked to computer abuse is caused by current and former employees rather than by outsiders. "In fact, the available data suggest that serious economic losses linked to computer abuse have been and continue to be attributed to current and former employees of the victimized organization rather than to interloping hackers with modems." Richard C. Hollinger and Lonn Lanza-Kaduce, The Process of Criminalizaton: The Case of Computer Crime Laws, 26 CRIMINOLOGY 101, 116 (1988). For example, use of the employer's computer for one's own purpose may be serious, as where the employee uses the employer's computer to run his or her own business through the employer's facilities, sometimes knows as "time theft." See  MARTIN WASIK, CRIME AND THE COMPUTER 55 (1991).  See also, NATIONAL INSTITUTE OF JUSTICE, U.S. DEPT OF JUSTICE, COMPUTER CRIME: CRIMINAL JUSTICE RESOURCE MANUAL, 38-39 (2d ed. 1989). Industrial sabotage may also be inflicted by disgruntled employees.  See State v. Corcoran, 186 Wis. 2d 616, 522 N.W.2d 226 (Wis. Ct. App. 1994).

[***12]

   The statute is three-pronged. Section 146(c)(1) prohibits unauthorized access or attempted unauthorized access per se to computers. The actor's purpose or motive in accessing the computer--whether there is any intent to alter or damage the [*478] computer or the data on it--is irrelevant. Section 146(c)(2) prohibits unauthorized access or attempted access to computers with a further purpose, such as with the intent to cause a malfunction or interrupt the computer operation, or alter, damage, or destroy information. Section 146(c)(3) prohibits willful and intentional identification, publication, or distribution of valid access codes, and has no relevancy to the case before the Court. "Simple" unauthorized access, that is, without intent to damage or alter, is punishable by a maximum prison term of three years, a [**909] fine of $1,000, or both. "Aggravated" unauthorized access is punishable by a maximum prison term of five years, a fine of $5,000, or both. n6 

n6 The penalty provision of Article 27, § 146 provides:
 
(d) Penalty. -- (1) Any person who violates any provision of subsection (c)(1) of this section is guilty of a misdemeanor and on conviction is subject to a fine not exceeding $1,000 or imprisonment not exceeding 3 years or both.

   (2) Any person who violates any provision of subsection (c)(2) or (c)(3) of this section is guilty of a misdemeanor and on conviction is subject to a fine not exceeding $5,000 or imprisonment not exceeding 5 years or both.

[***13]

   The statute prohibits unauthorized access of a computer, computer network, or computer systems. "Access" is defined in the statute "to instruct, communicate with, store data in, retrieve data from, or otherwise make use of equipment including . . . computers." § 146(a)(9). "Without authorization" modifies the word "access." Therefore, the unlawful act is unauthorized access. "Authorization" is not defined in the statute. n7 Turning to dictionary definitions of "authorize," [*479] we find that BLACK'S LAW DICTIONARY 133-34 (6th Ed. 1990) defines "authorize" to mean "to empower; to give a right or authority to act. To endow with authority or effective legal power, warrant, or right. To permit a thing to be done in the future." (Citation omitted). Similarly, WEBSTER'S NEW INTERNATIONAL DICTIONARY, UNABRIDGED 186 (2d ed. 1950) defines "authorize" to mean "to clothe with authority or legal power; to give right to act; to make legal; to legalize; to give [*480] authoritative permission to or for; to justify." The testimony at trial that Briggs had authority to enter data in the computer and to place passwords on the files to secure the data establishes that he was authorized, under the statute, to "instruct, [***14] communicate with, store data in, retrieve data from and to make use of computer data [**910] equipment and other data processing equipment." The plain language of the statute suggests that if an employee were initially permitted to "instruct," "communicate with," "store data in," or "retrieve data from" the computer system, then that employee's access would be authorized. The statute makes no reference to authorized users who exceed the scope of their authority. If the Legislature intended the statute to cover employees who exceeded the scope of their authority or who misused their authority, it could have done so explicitly. n8 We conclude that the intent of the General Assembly [*481] was to criminalize the misuse of computers or computer networks by those whose initial access was unauthorized.

n7 See NATIONAL INSTITUTE OF JUSTICE, U.S. DEPT OF JUSTICE, COMPUTER CRIME: CRIMINAL JUSTICE RESOURCE MANUAL xvi (2d ed. 1989), for a discussion of technical definitions in state computer crime law. The author notes that "there are now as many different and conflicting definitions of computer crime as there are states with computer crime statutes. The definitions of those terms, their comprehensibility, rate of obsolescence, and ease of application will play an important role in determining how successfully and effectively these new statutes will be used to deter and prosecute computer crime." NATIONAL INSTITUTE OF JUSTICE, U.S. DEPT OF JUSTICE, COMPUTER CRIME: CRIMINAL JUSTICE RESOURCE MANUAL, 85 (2d ed. 1989).

   The federal government, all of our sister states with the exception of Vermont, and most foreign countries, have responded to the problem of computer crimes. The statutes "vary widely in offense named, definitions, and sanctions." NATIONAL INSTITUTE OF JUSTICE, U.S. DEPT OF JUSTICE, COMPUTER CRIME: CRIMINAL JUSTICE RESOURCE MANUAL, 83 (2d ed. 1989); see 18 U.S.C. § 1030 (1994); ALA. CODE §§ 13A-8-103 (1994 & Supp. 1996); ALASKA STAT. § 11.46.740 (1996 & Supp. 1997); ARIZ. REV. STAT. ANN. § 13-2316 (1989 & Supp. 1997); ARK. CODE ANN. §§ 5-41-101 to 107 (Michie 1997); CAL. PENAL CODE § 502 (West 1988 & Supp. 1997); COLO. REV. STAT. §§ 18-5.5-101 to 102 (1997); CONN. GEN. STAT. ANN. §§ 53a-250 to 261 (West 1994 & Supp. 1997); DEL. CODE. ANN tit. 11, §§ 931 to 939 (1995 & Supp. 1996); FLA. STAT. ANN. §§ 815.01 to .07 (West 1994 & Supp. 1997); GA. CODE ANN. §§ 16-9-91 to 94 (1996 & Supp. 1997); HAW. REV. STAT. §§ 708-890 to 893 (1994 & Supp. 1997); IDAHO CODE §§ 18-2201 to 2202 (1987 & Supp. 1997); ILL. ANN. STAT. ch. 38 para. 16D-1 to 7 (Smith-Hurd 1996); IND. CODE ANN. §§ 35-43-1-4 & 35-43-2-3 (Burns 1994 & Supp. 1997); IOWA CODE ANN. §§ 716A.1 to .16 (West 1993 & Supp. 1997); KAN. STAT. ANN. § 21-3755 (1995); KY. REV. STAT. ANN. §§ 434.840 to .860 (Michie/Bobbs-Merrill 1985 & Supp. 1997); LA. REV. STAT. ANN. §§ 14:73.1 to .5 (West 1997); ME. REV. STAT. ANN. tit. 17-A, § 357 (West Supp. 1997); MD. CODE (1957, 1996 Repl. Vol., 1997 Supp.) Article 27, § 146; MASS. GEN. L. ch. 266, § 30 (1990 & Supp. 1997); MICH. STAT. ANN. § 752.791 to .797 (Callaghan 1991 & Supp. 1997); MINN. STAT. ANN. §§ 609.87 to .891 (West 1987 & Supp. 1997); MISS. CODE ANN. §§ 97-45-1 to 13 (1994 & Supp. 1997); MO. REV. STAT. §§ 537.525, 569.093 to .099 (1988 & Supp. 1997); MONT. CODE ANN. §§ 45-2-101, 45-6-310 to 311 (1997); NEB. REV. STAT. §§ 28.1343 to .1348 (1994 & Supp. 1996); NEV. REV. STAT. ANN. §§ 205.473 to .491 (Michie 1997); N.H. REV. STAT. ANN. §§ 638:16 to :19 (1986 & Supp. 1995); N.J. STAT. ANN. §§ 2C:20-23 to 34 (1995 & Supp. 1997); N.M. STAT. ANN. §§ 30-45-1 to 7 (Michie 1989 & Supp. 1996); N.Y. PENAL LAW §§ 156.00 to .50 (McKinney 1988 & Supp. 1997); N.C. GEN. STAT. §§ 14-453 to 457 (1993 & Supp. 1996); N.D. CENT. CODE ANN. § 12.1-06.1-08 (1985 & Supp. 1997); OHIO REV. CODE ANN. §§ 2913.01, 2913.81 (Anderson 1996); OKLA. STAT. ANN. tit. 21, §§ 1951 to 1958 (West Supp. 1997); OR. REV. STAT. §§ 164.125, 164.377 (1995); 18 PA. CONS. STAT. ANN. § 3933 (1994 & Supp. 1997); R.I. GEN. LAWS §§ 11-52-1 to 8 (1994 & Supp. 1996); S.C. CODE ANN. §§ 16-16-10 to 30 (Law. Co-op. 1985 & Supp. 1996); S.D. CODIFIED LAWS ANN. §§ 43-43B-1 to 8 (1997); TENN. CODE ANN. §§ 39-14-601 to 603 (1997); TEX. PENAL CODE ANN. §§ 33.01 to .05 (West 1989 & Supp. 1995); UTAH CODE ANN. §§ 76-6-701 to 705 (1995 & Supp. 1996); VA. CODE ANN. §§ 18.2-152.1 to .14 (Michie 1996 & Supp. 1997); WASH. REV. CODE §§ 9A.52.110 to .130 (1988 & Supp. 1996); W.VA. CODE §§ 61-3C-1 to 21 (1993 & Supp. 1997); WIS. STAT. § 943.70 (1996 & Supp. 1997); WYO. STAT. §§ 6-3-501 to 505 (1997).

[***15] 

n8 The federal government and several of our sister states have explicitly prohibited computer use beyond the scope of authorization. See  18 U.S.C. § 1030 (a)(1), (a)(2), (a)(4) (criminalizing access of a computer without authorization or "exceeding authorized access").  18 U.S.C. § 1030(e)(6) defines the term "exceeds authorized access" to mean "to access a computer with authorization and to use such access to obtain or alter information in the computer that the accessor is not entitled so to obtain or alter." See also ARIZ. REV. STAT. ANN. § 13-2316(A) (Supp. 1997) (defining one element of computer fraud as accessing a computer without authorization or exceeding authorization of use); GA. CODE ANN. §§ 16-9-92 (1996 & Supp. 1997) (defining "without authority" to include the use of a computer in a manner that exceeds any permission granted by the owner of the computer); HAW. REV. STAT. §§ 708-890 (1994 & Supp. 1997) (defining "without authorization" to mean without the permission of or in excess of the permission of an owner); KAN. STAT. ANN. § 21-3755(b)(3) (1995) (defining computer crime as "intentionally exceeding the limits of authorization" in conjunction with causing damage); MICH. STAT. ANN. § 752.795 (Callaghan 1991 & Supp. 1997) (prohibiting a person from intentionally accessing a computer "without authorization or by exceeding valid authorization"); N.D. CENT. CODE ANN. § 12.1-06.1-08 (2) (Supp. 1997) (prohibiting access "in excess of authorization given or without authorization"); N.M. STAT. ANN. § 30-45-5 (Michie Supp. 1996) (criminalizing the unauthorized computer use of "any person who knowingly, willfully and without authorization, or having obtained authorization, uses the opportunity such authorization provides for purposes to which the authorization does not extend"); OHIO REV. CODE ANN. § 2913.04(B) (Anderson 1996) (prohibiting access of a computer "without the consent of, or beyond the scope of the express or implied consent of the owner"); OKLA. STAT. ANN. tit. 21, § 1953(3) (West Supp. 1997) (making it unlawful to willfully "exceed the limits of authorization" and damage, modify or alter a computer system); S.C. CODE ANN. § 16-16-20(1) (Law. Co-op. 1985 & Supp. 1996) (prohibiting the willful access to a computer "without authorization or for an unauthorized purpose").

   In addition, several states have specific offenses entitled Offenses against computer users, which criminalize the intentional denial to an authorized user of the full and effective use of or access to a computer. See, e.g., FLA. STAT. ANN. § 815.06(1) (West 1994 & Supp. 1997); LA. REV. STAT. ANN. § 73.4(A) (West 1997); MISS. CODE ANN. § 97-45-5(1)(a) (1988 & Supp. 1997); WYO. STAT. § 6-3-504 (1997).

[***16]

   The legislative history supports our reading of the statute. In 1984, in an apparent response to the inadequacies of current criminal law to address disruptive or voyeuristic acts involving computer information systems, House Bill 121, approved by both houses, and enacted as Chapter 588, 1984 Laws of Maryland, criminalized "illegal access to computers." A representative of the Department of Budget and Fiscal Planing testified in support of the bill: 
 
Generally speaking, the threat [of computer crime] may be viewed as being divided into two reasonably identifiable types: 1) those associated with criminal intent or activity, and 2) those associated with the so called "hacker" type of activity, where just the challenge of penetrating the system, or some sort of "electronic vandalism" or other mischief is the objective. While outright criminal activity involving information systems is covered by current statute, the Department feels this bill provides a needed addition by directly addressing the second type of threat by prohibiting all unauthorized access, for whatever purpose, and by providing penalties for its occurrence.
 
Testimony Regarding House Bill 121, Department[***17] of Budget and Fiscal Planning (available at the Department of Legislative Reference, Bill File for House Bill 121 (1984)) (emphasis [*482] added). The legislative history thus suggests that House Bill 121 was drafted in reaction to the concern about the recent "hacker" activity. The Senate Judicial Proceedings Committee Report for House Bill 121, reported favorably by Chairman (now President of the Senate) Thomas [**911] V. Mike Miller, underscores our conclusion that the statute should apply to those who break into computers: 
 
BACKGROUND:

Proponents of this bill testified that, under current law, simply breaking into a computer system to vandalize or cause other mischief is not illegal. Thus, the bill was introduced by those who feel unauthorized access alone should be a misdemeanor subject to penalties.

LEGISLATIVE INTENT:

This legislation is intended to make it a misdemeanor for a person intentionally and without authorization to access, attempt to access or cause access to a computer system. The purpose of the bill is to deter individuals from breaking into computer systems. 
 
Committee Report System, Summary of Committee[***18] Report, House Bill 121 (available at the Department of Legislative Reference, Bill File for House Bill 121 (1984)) (emphasis added). The 1989 amendment to the statute, House Bill 1065, enacted as Chapter 722, 1989 Laws of Maryland, added subsections (c)(2) and (3) thereby creating two new substantive crimes with more severe penalties. Subsection (c)(2) prohibits a person from intentionally and willfully accessing a computer to cause malfunction or interrupt the operation of a computer, or to alter, damage or destroy data or program stored by a computer, and subsection (c)(3) prohibits a person from intentionally, willfully, and without authorization attempting to identify or distribute computer passwords. n9 The Senate Judicial [*483] Proceedings Committee Bill Analysis and Floor Report concerning House Bill 1065 states: 

n9 In addition to creating two new substantive crimes, House Bill 1065 expanded the scope of computer access activities punishable as crimes by changing the definitions such that "computer database" included data produced by a computer or computer system, or a computer network. The bill also extended the definition of "computer network" to include computers intermittently connected. Article 27, § 146(a)(1), (4).

[***19] 
 
BACKGROUND:

This bill upgrades current computer access provisions to address recent well publicized disruptions of public and private computer systems, and invasions of personal privacy by "hackers." 
 
* * * * * * 
 
The first new crime penalizes the damage which hackers may wreak in illegally accessed systems, above and beyond the current penalty for the access itself.
 
Id. (available at the Department of Legislative Reference, Bill File for House Bill 1065 (1989)). Once again, it appears that the General Assembly sought to address the perceived threat from "hackers," and, in particular, the damages that they may cause beyond mere browsing.  See also Testimony Regarding House Bill 1065, Delegate Samuel Rosenberg (stating "much of the current crisis revolves around underground 'hackers'") (available at the Department of Legislative Reference, Bill File for House Bill 1065 (1989)). Contrary to the State's argument, the legislative history thus suggests that House Bill 1065 was designed to enlarge the penalties related to mischievous unauthorized access, not to enlarge the definition of access. These comments and reports suggest [***20]that the intent of the Legislature was to punish access that was not initially authorized and not to punish conduct that merely exceeded authorized access.

   Briggs's access was not unauthorized under Article 27, § 146, the unauthorized access to computers statute. If the law is to be broadened to include Briggs's conduct, it should be modified by the Legislature, not by this Court. [*484]

   JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY REVERSED. COSTS TO BE PAID BY ANNE ARUNDEL COUNTY. 

JAMES THEODORE ROSS, Petitioner v. STATE OF MARYLAND,Respondent 
No. 116, September Term, 1997
 
COURT OF APPEALS OF MARYLAND
 
348 Md. 484; 704 A.2d 912; 1998 Md. LEXIS 10

 January  22, 1998, Filed

   PRIOR HISTORY: [**1]

   Certiorari to the Court of Special Appeals (Circuit Court for  Anne Arundel  County). Raymond G. Thieme, Jr., JUDGE.

DISPOSITION: Reversed and remanded.

COUNSEL: SUBMITTED BY Victoria Lansburgh, Assistant Public Defender (Stephen E. Harris, Public Defender) of Baltimore, MD, FOR PETITIONER.
 
SUBMITTED BY Devy Patterson Russell, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General) of Baltimore, MD, FOR RESPONDENT.

JUDGES: SUBMITTED BEFORE Bell, C.J.; Eldridge, Rodowsky, Chasanow, Raker, Wilner and Cathell, JJ.

OPINIONBY: Robert M. Bell

OPINION: [*484]

   ORDER

   The Court having considered and granted the petition for a writ of certiorari in the above-captioned case, it is this 22nd day of January, 1998,

   ORDERED, by the Court of Appeals of Maryland, that the judgment of the Court of Special Appeals be, and it is hereby, summarily reversed in light of Okon v. State, 346 Md. 249, 696 [*485] A.2d 441, Moten v. State, 339 Md. 407, 663 A.2d 593 (1995), and Parren v. State, 309 Md. 260, 523 A.2d 597 (1987), and the case is remanded to the Court of Special Appeals with directions to reverse the judgments of the Circuit Court for Anne Arundel County and remand the case to that court for new trials. Costs[**2] in this Court and the Court of Special Appeals to be paid by Anne Arundel County.

   /s/ Robert M. Bell

    Chief Judge 

Naylor v. Housing Authority 
Pet. Docket No. 441, September Term, 1997
 
COURT OF APPEALS OF MARYLAND
 
348 Md. 333; 703 A.2d 1265; 1998 Md. LEXIS 55

 January  15, 1998, Decided

NOTICE: 

 [*1]  DECISION WITHOUT PUBLISHED OPINION 

PRIOR HISTORY: (No. C97-35998, Circuit Court for  Anne Arundel  County).

OPINION: PETITION FOR WRIT OF CERTIORARI denied. 

Sevick, Diane Carole v. State 
Pet. Docket No. 457, September Term, 1997
 
COURT OF APPEALS OF MARYLAND
 
348 Md. 334; 703 A.2d 1265; 1998 Md. LEXIS 58

 January  15, 1998, Decided

NOTICE: 

 [*1]  DECISION WITHOUT PUBLISHED OPINION 

PRIOR HISTORY: (No. K-97-407, Circuit Court for  Anne Arundel  County).

OPINION: PETITION FOR WRIT OF CERTIORARI denied. 

THE DRIGGS CORPORATION v. MARYLAND AVIATION ADMINISTRATION 
No. 68, September Term, 1997,
 
COURT OF APPEALS OF MARYLAND
 
348 Md. 389; 704 A.2d 433; 1998 Md. LEXIS 6

 January  14, 1998, Filed

   PRIOR HISTORY: [***1] Appeal from the Circuit Court for  Anne Arundel  County pursuant to certiorari to the Court of Special Appeals. C9630648AA. Eugene M. Lerner, JUDGE.

DISPOSITION: JUDGMENT OF CIRCUIT COURT VACATED; CASE REMANDED FOR FURTHER PROCEEDINGS IN ACCORDANCE WITH THIS OPINION; APPELLEE TO PAY THE COSTS.

CORE TERMS:  default, termination, judicial review, burden of proof, contractor, legal sufficiency, acquiescence, final decision, procurement, terminating, completion, favorable, motion to dismiss, trier of fact, convenience, acquiesced, interlocutory order, evidence produced, credibility, diligence, non-jury, appellate jurisdiction, administrative agency, administrative order, general rule, prima facie, controvert, responded, withdraw, amend

COUNSEL: ARGUED BY J. Richard Margulies (Leonard A. Sacks, Sacks & Margulies of Rockville, MD) all on brief, FOR APPELLANT.
 
ARGUED BY William A. Kahn, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General of Maryland; Douglas G. Carrey-Beaver, Assistant Attorney General, of Baltimore, MD) all on brief, FOR APPELLEE.

JUDGES: ARGUED BEFORE Bell, C.J.; Eldridge, Rodowsky, Chasanow, Raker, Wilner, Karwacki, Robert L. (retired, specially assigned), JJ. Opinion by Wilner, J.

OPINIONBY: Wilner

OPINION: [*391]
 
[**434] Opinion by Wilner, J.
 
The underlying dispute that generated this appeal arises from the termination by appellee, Maryland Aviation Administration (MAA), [***2] of an $11.5 million contract it had entered into with appellant, The Driggs Corporation [**435](Driggs), to extend and upgrade Runway 10-28 at Baltimore-Washington International Airport. We are not directly concerned here with the merits of that dispute -- whether MAA acted properly in terminating the contract with Driggs. After an extensive hearing, the Maryland State Board of Contract Appeals (BCA) held that MAA did not act unlawfully in doing what it did.

   The issue presented to us by the parties is whether the Circuit Court for Anne Arundel County erred in dismissing Driggs's petition for judicial review of the BCA decision on the ground that, by declining to produce evidence after BCA had denied its motion for summary disposition, Driggs had acquiesced in the decision. We shall hold that the court did err in that ruling. There is, unfortunately, another issue, not addressed by the parties but apparent from the record, that requires consideration as well and that will ultimately govern [*392]this appeal. The fact is that the petition for judicial review was premature. As we shall explain, there remained at issue the question of damages, which (1) was part of MAA's claim, (2) had been bifurcated[***3] by BCA, and (3) had not apparently been resolved by BCA when the petition was filed. Ordinarily, only final administrative decisions resolving the entire claim before the agency are appropriate for judicial review, and the order sought to be reviewed in this case did not qualify either as a final decision or as the kind of special interlocutory order for which immediate judicial review is available.
 
FACTUAL BACKGROUND

   The contract in question was approved by the Board of Public Works on April 14, 1993. It called for Driggs to complete certain work (Phases 1 and 2) on Runway 10-28 within 200 days after issuance of a Notice to Proceed. The completion date was eventually extended by MAA to December 31, 1993. The contract also incorporated two clauses mandated by a State Procurement Regulation. One, required by COMAR 21.07.02.07, was a Termination for Default clause, authorizing MAA to terminate the contract "if the Contractor refuses or fails to prosecute the work, or any separable part thereof, with such diligence as shall insure its completion within the time specified in this contract, or any extension thereof . . . ." In the event of such a termination, the clause made Driggs[***4] and its surety liable for any damage to the State resulting from Driggs's failure to complete the work within the specified time. The other clause, mandated by COMAR 21.07.02.09, was a Termination for Convenience provision, authorizing the State to terminate the contract "whenever the procurement officer shall determine that such termination is in the best interest of the State." If the State invoked that clause, it would be liable to Driggs for certain costs and expenses enumerated in the clause.

   On October 21, 1993, MAA invoked the Termination for Default clause and terminated the contract on the grounds that Driggs had (1) "failed to prosecute the contract work with [*393] such diligence as would have assured completion of Phases 1 and 2 within the time and as required by the terms of the contract" and (2) also failed "in its obligation to submit a schedule by August 13, 1993 showing a realistic plan to complete Phases 1 and 2 by December 31, 1993."

   Driggs filed a complaint with BCA, asking that the termination be overturned because of excusable delays, waiver by MAA of its right to terminate for default, and material breaches by MAA. It also asked that the termination for default be[***5] converted to a termination for convenience and that it be awarded damages accordingly. MAA answered the complaint, asking that Driggs's claim challenging the termination for default be dismissed. In an accompanying counterclaim, MAA asserted that, because of its default, Driggs was responsible to MAA "for all damages occasioned by [Driggs's] default" and asked that BCA affirm the termination.

   On October 18, 1994, after some discussions between BCA and the parties, BCA decided that, as the procurement officer had not yet resolved the question of what damages MAA would be entitled to because of the termination for default, that issue was not properly before BCA but, when resolved by the procurement officer, would be dealt with by BCA in a separate proceeding. The pending proceeding would therefore be limited [**436] to "entitlement, i.e., the propriety of the procurement officer's final decision terminating Driggs' contract for default." That was confirmed when the hearings actually commenced and MAA advised that it was not planning to offer any evidence as to damages but intended to proceed only on the issue of liability. That bifurcation decision set the stage for the prematurity problem[***6] noted above.
 
With the concurrence of the parties and in accordance with BCA's past practice and with established Federal procurement law, the termination for default was treated as an MAA claim against Driggs, upon which MAA had the burden of proof. n1 Accordingly, MAA proceeded first with its case, to [*394] establish sufficient grounds for its decision to terminate the contract. In hearings extending over 40 days, it produced 11 fact witnesses, three expert witnesses, and 281 exhibits. Driggs not only cross-examined the MAA witnesses but, either through them or otherwise, placed into evidence 217 exhibits of its own. In addition to certain procedural defenses, it vigorously contested the accuracy of many of the assertions made by MAA with respect to Driggs's diligence and its ability to complete the work within the allotted time. It pressed the point that, at the time of the termination, it still had 135 days left to complete the work. n2

n1 There is no dispute with respect to that point. MAA has conceded in its brief before us that "because the termination for default was the State's claim, MAA had the burden of proving that Driggs had defaulted, i.e., that MAA reasonably believed that Driggs would not complete by December 31, 1993 and that Driggs had refused to meet that date." It made the same concession in the circuit court and clearly acquiesced before BCA in that procedure. No objection was made when the Chairman of BCA ruled that, because it was dealing with an "affirmative claim" by MAA, the agency would proceed first, to establish, at least prima facie, the appropriateness of the termination for default. As we indicated, that approach is in conformance with established Federal procurement law and practice. See Lisbon Contractors, Inc. v. U.S., 828 F.2d 759, 764 (Fed. Cir. 1987): "It is long-established government contract law in cases brought to the boards of contract appeals (BCA's) that the government bears the burden of proof on the issue of the correctness of its actions in terminating a contractor for default." That burden is placed on the government regardless of whether the action before the BCA is instigated by the government or the contractor. As the Lisbon court observed, imposition of the burden of proof of default in BCA cases "falls naturally on the government inasmuch as the government is only being made to bear the burden of proof on its own 'claim' of default. Only after the default issue is resolved, does the board turn to any 'claim' by the government or the contractor for monetary compensation." Id. See also SMS Data Products Group, Inc. v. U.S., 17 Cl. Ct. 1 (1989); J. Parr Const. Design, Inc. v. U.S., 24 Cl. Ct. 228 (1991); Daff v. U.S., 31 Fed. Cl. 682 (1994); Hannon Elec. Co. v. U.S., 31 Fed. Cl. 135 (1994); Appeal of Walsky Construction Co., ASBCA No. 41,541, 94-1 BCA P 26,264 (1993), modified,  94-2 BCA P 26,698 (1994); Appeal of Custodial Guidance Systems, Inc., GSBCA No. 6531, 83-1 BCA P 16,278 (1983); Appeal of System Development Corporation, VABCA No. 1976R, 87-3 BCA P 20,167 (1987); Appeals of Air-O-Plastik Corp., GSBCA No. 4925, 81-2 BCA P 15,338 (1981).

[***7] 

n2 MAA never denied that Driggs had that amount of time left to complete the contract. It pointed out, however, that, when asked to supply schedules showing projected work progress and completion dates, Driggs produced schedules indicating that the work would not, in fact, be completed by December 31.

[*395]

   Near the end of MAA's case, Driggs indicated, as it had at the outset of the hearing, that it would be filing a motion for summary disposition, i.e, a motion testing whether MAA had presented a prima facie case establishing the validity of the termination. The BCA Chairman explained that, although BCA used the administrative terminology "motion for summary disposition," the motion would be in the nature of a motion for judgment, asserting that Driggs was entitled to prevail as a matter of law on the issues covered by the motion. He advised that
 
"the Board will review the evidence of the record compiled up to the time that the motion is made in the light most favorable to the party against whom the motion is directed, and will resolve reasonable inferences from conflicts in the oral[***8] and written testimony comprising the record compiled to the date of the motion. It will resolve such inferences in the favor of the party against whom the motion is directed, and if, having done so, there is lacking a factual predicate pursuant to which, as a matter of [**437] law, the moving party is entitled to prevail, the motion will be denied."

   When Driggs suggested that, in a non-jury court proceeding, the court, entertaining a motion for judgment at the end of the plaintiff's case, was not required to view the evidence in a light most favorable to the non-moving party, the Chairman iterated that the proceeding was an administrative one and that BCA would apply the standard of review he had announced. He further advised, however:

   "The party who made that motion could then stand up and rest, at which point in time another motion could be presented in which the standard of review, if you will, by the Board of the evidence of record would be somewhat different. There we would be focusing on whether the State had met its burden to demonstrate that the termination for default was appropriate in the context that the hearing and notice was mandated by the Administrative Procedure." [*396] 

   Presumably[***9] on that premise, Driggs orally moved for summary disposition at the end of MAA's case. BCA initially took the motion under advisement but, in a 22-page memorandum opinion filed January 2, 1996, it denied the motion. In its memorandum, BCA reiterated that, in considering a motion for summary disposition, the Board determines only whether there are material facts in dispute and what legal principles govern the issues in dispute. It once again made clear that, in ruling on such a motion, it must resolve "all conflicting evidence and all legitimate inferences raised by the evidence . . . in favor of the party . . . against whom the motion is directed" and that "the purpose of summary disposition is not to resolve factual disputes nor to determine credibility, but to decide whether there is a dispute over material facts which must be resolved by the Board as trier of fact." Accordingly, it confirmed that summary disposition was not appropriate "if a genuine issue of material fact is in dispute" or if undisputed facts are susceptible of more than one permissible factual inference.

   With that introduction, BCA proceeded to examine the issues raised by Driggs, the positions taken by the parties[***10] with respect to those issues, and some of the evidence bearing on the issues. In the course of that examination, BCA identified a number of specific and substantial factual conflicts. Its overall conclusion was that "there are material facts in dispute concerning whether [Driggs] was in breach of the contract concerning timely performance and whether [Driggs] would have cured any such breach of its contract had its contract not been terminated for default." Resolving all reasonable inferences in favor of MAA, BCA concluded that MAA had a reasonable belief that (1) Driggs would not or could not complete Phases 1 and 2 by December 31, 1993, (2) December 31 was the appropriate completion date for Phases 1 and 2, and (3) completion of Phases 1 and 2 by December 31 was critical. Accordingly, BCA determined that "the record at this juncture may be read to continue to support prima facie the State's belief in the summer of 1993 that the contractor refused or failed to prosecute Phases 1 and 2 with such [*397] diligence as to insure their completion by December 31, 1993, and that such failure was material and, if not deliberate, was not excusable . . . ." (Emphasis added.) After considering[***11] and rejecting certain other procedural defenses raised by Driggs, BCA therefore denied the motion.

   Three weeks after the filing of the memorandum opinion, Driggs informed BCA that it saw no "economic benefit to continuing the administrative proceeding and deferring our remedy in the courts until next fall," and it therefore decided to rest its case. It asked for an expeditious decision. It is clear, however, that neither the parties nor BCA expected that a final decision would be rendered without further input from the parties and that Driggs was in no way acquiescing in any conclusion that MAA acted properly in terminating the contract for default. On February 2, 1996, BCA set a schedule for the filing of post-hearing briefs, and, indeed, extensive briefs were filed. Driggs filed an initial brief of 74 pages; MAA filed a 114-page brief; Driggs then filed a 24-page reply brief, which was met with a 25-page reply brief from MAA. Each of those briefs addressed the myriad of factual disputes in the [**438] record. On June 25, 1996, BCA rendered a 56-page opinion in which it made specific findings with respect to the disputed matters and held that MAA acted reasonably in terminating the contract. [***12]

   From that decision, Driggs sought judicial review in the Circuit Court for Anne Arundel County. MAA responded with a motion to dismiss Driggs's "appeal," asserting that "Driggs, by its words and conduct, consented to the final decision by [BCA]" and that, "on the authority of Osztreicher v. Juanteguy, 338 Md. 528, 659 A.2d 1278 (1995), Driggs' consent bars it from invoking the appellate jurisdiction of this Court." n3 (Emphasis added.) MAA's position was that, when [*398] BCA denied the motion for summary disposition, "the burden shifted to Driggs to controvert the State's case" and that, when it rested without going forward with any evidence, it tacitly accepted BCA's ruling and therefore acquiesced in the final decision. The court apparently accepted MAA's interpretation of both Osztreicher and the respective burdens of proof, for it granted MAA's motion and dismissed the petition. The written order dismissing the petition was filed on January 13, 1997. On January 23, Driggs filed a motion to alter or amend that order, complaining that the court had misconstrued Osztreicher. The motion was denied on February 25, and, on March 7, Driggs noted an appeal to the Court of[***13] Special Appeals. Before any significant proceedings in that court, we granted certiorari on our own initiative to consider the singular issue raised.

n3 In replacing the former Chapter 1100 Rules with the Title 7, Chapter 200 Rules in July, 1993, we made clear, even through the new nomenclature, that those actions are not "appeals," as they do not seek review of any judicial decision, but rather invoke the statutory original jurisdiction of the circuit courts to exercise a limited review of Executive Branch decisions. See Gisriel v. Ocean City Election Board, 345 Md. 477, 693 A.2d 757 (1997) and Colao v. County Council, 346 Md. 342, 697 A.2d 96 (1997).

   DISCUSSION

   (A) Motion To Dismiss

   It would appear that the Attorney General's Office has been laboring under the misimpression that an action for judicial review of an administrative agency's final order is in the nature of an "appeal," invoking the appellate jurisdiction of the circuit court. Based on that misunderstanding, it has, on behalf[***14] of MAA, moved to dismiss this appeal from the judgment of the circuit court on the ground that the notice of appeal was untimely. As noted, the order dismissing Driggs's petition was filed on January 13, 1997. Driggs filed a motion to alter or amend that order on January 23 -- the tenth day after the order was filed. By virtue of Maryland Rules 2-534 and 8-202(c), the filing of that motion suspended the allowable time for noting an appeal from the January 13 order until 30 days after the date upon which the post-judgment motion was denied. The motion was denied on February 25, and the appeal was noted on March 7, 1997. [*399]
 
MAA's motion to dismiss is based upon the erroneous supposition that, because Driggs's petition to the circuit court invoked the appellate, rather than the original, jurisdiction of that court, Rules 2-534 and 8-202(c) have no application and that, as a result, (1) the post-judgment motion did not suspend the time for noting an appeal and (2) the time for noting an appeal expired 30 days after January 13. In support of its motion, MAA cites Pollard v. State, 339 Md. 233, 661 A.2d 734 (1995). Unfortunately, it has misconstrued that case as well. Pollard dealt[***15] with a true appeal to the circuit court-- from a judgment of the District Court -- and the issue was whether, in a criminal appeal to be tried de novo in the circuit court, the court had authority under Rule 7-112 to reinstitute the appeal after having dismissed it for failure of the defendant to appear for trial. We held that the court did have such authority -- that the reference in Rule 7-112 to Rules 2-534 and 2-535 was not intended to limit the court's post-judgment revisory power to civil appeals. Pollard in no way supports the notion that Rule 2-534 does not apply in an action for judicial review of an administrative agency order. As we have made clear, a petition for judicial review of an administrative agency order invokes the original, not the appellate, jurisdiction of the circuit court, and, accordingly, Rule 2-534 applies to the [**439] action. MAA's motion to dismiss this appeal is denied.

   (B) Validity of Order Dismissing Petition for Judicial Review

   As we have observed, the sole basis for MAA's motion to dismiss Driggs's petition for judicial review in the circuit court and the sole basis for the court's granting of that motion, was the view that, by resting[***16] its case after the denial of its motion for summary disposition, Driggs effectively invited and therefore acquiesced in the decision of BCA and, as a result, is not allowed to challenge that decision on "appeal." For that proposition, MAA cites only Osztreicher v. Juanteguy, supra, 338 Md. 528, 659 A.2d 1278. The precise basis of MAA's theory is somewhat unclear; its argument can be cast either as a misconstruction of Osztreicher or as a misinterpretation [*400] of the burden it had before BCA. We shall address both possibilities.

   (1) Osztreicher and Motion for Judgment

   Osztreicher arose from a medical malpractice case filed in the circuit court after a waiver of proceedings before the Health Claims Arbitration Office. While the case was still before the Health Claims Arbitration Office, the plaintiff had named three possible expert witnesses, among them a Dr. Stewart Battle, but later indicated that he did not intend to call Dr. Battle to testify. When the case reached the circuit court, despite the absence of any further communication from the plaintiff with respect to his expert witnesses, the defendant deposed Dr. Battle. In the course of the deposition, he inquired[***17] as to the amount of income Dr. Battle earned from forensic endeavors and was given an approximate figure. The day before trial was to commence, the defendant served a subpoena on Dr. Battle, directing him to produce at trial certain financial records, including tax records indicating the amount of income received in the prior two years from "medical/legal and/or forensic activities." The court denied the plaintiff's motion to quash the subpoena, offering instead to review in camera the documents produced, to determine which of them might be suitable for use in cross-examination.

   The plaintiff responded that Dr. Battle would refuse to testify if required to produce those documents and that, without Battle's testimony, he would be effectively precluded from putting on a case. He moved for a mistrial, and, when that motion was denied, he declined to present any evidence, notwithstanding that he did have another expert witness who was prepared to testify. On that state of affairs, the court granted the defendant's motion for judgment, following which the plaintiff noted an appeal.

    We dismissed the appeal, beginning our discussion by confirming the well-established principle that[***18] "the right to appeal may be lost by acquiescence in, or recognition of, the validity of the decision below from which the appeal is taken [*401] or by otherwise taking a position which is inconsistent with the right of appeal." Quoting from Rocks v. Brosius, 241 Md. 612, 630, 217 A.2d 531, 534, 541 (1966). We then recounted some of the circumstances that, in earlier cases, we had determined to constitute acts of acquiescence. Citing a number of out-of-State cases, we concluded, at 535, that "[a] party who does not offer evidence on an issue as to which that party has the burden of proof acquiesces in the adverse judgment entered on that issue." (Emphasis added.) Examining then the circumstances of the particular case, we observed that the denial of Ozstreicher's motion to quash the subpoena did not leave him without a case to present. Implicit, of course, was the fact that, had he proceeded with the case and lost, he could have challenged on appeal the validity of the court's ruling on the motion to quash. By refusing to present any evidence, however, when it was he, as the plaintiff, who had the burden of both production and persuasion, he effectively "acquiesced[***19] in, if not consented to," the entry of the judgment he then sought to challenge.  338 Md. at 535.

   The case now before us is significantly different from the circumstances in Osztreicher. MAA contends in its brief that "the Osztreicher doctrine of acquiescence . . . does not depend upon . . . who has the burden of proof." That assertion is palpably wrong; the doctrine of acquiescence very much depends [**440]on who has the burden of proof. There is nothing strained, unfair, or illogical in a conclusion that, when a party who has the burden of producing persuasive evidence on an issue deliberately declines to do so, that party necessarily acquiesces in an adverse judgment, for, through that deliberate conduct, the party leaves the court with no other choice than to enter that judgment; the party effectively invites the judgment. That is not the case, however, when it is the adverse party who has the burden of producing the persuasive evidence. Maryland law, and, indeed, civil procedure generally throughout the country, has long recognized the ability of the party not having the burden of proof (B) to test the legal [*402] sufficiency of the evidence produced by the party having that burden[***20] (A) through a motion made at the end of A's case.

   In Maryland court proceedings, such a motion is now termed a motion for judgment (Md. Rule 2-519); formerly, it was known as a motion to dismiss, if made in a non-jury case, or a motion for directed verdict, if made in a jury case. See former Md. Rules 535 and 552. At earlier times, it was often referred to as a demurrer to the evidence.  Washington R. & E. Co. v. Anderson, 168 Md. 224, 227, 177 A. 282 (1935). The purpose of such a motion, whatever its denomination, is "to allow a party to test the legal sufficiency of his opponent's evidence before submitting evidence of his own." Smith v. State Rds. Com., 240 Md. 525, 539, 214 A.2d 792, 799-800 (1965); J. Whitson Rogers, Inc. v. Board, 285 Md. 653, 660, 402 A.2d 608, 612 (1979).

   The issue traditionally presented by such a motion is a purely legal one -- whether, as a matter of law, the evidence produced during A's case, viewed in a light most favorable to A, is legally sufficient to permit a trier of fact to find that the elements required to be proved by A in order to recover have been established by whatever standard of proof is applicable. To frame the legal issue, [***21] the court must accept the evidence, and all inferences fairly deducible from that evidence, in a light most favorable to A; it is not permitted to make credibility determinations, to weigh evidence that is in dispute, or to resolve conflicts in the evidence. n4 

n4 As was pointed out by Driggs to BCA, in adopting Rule 2-519 in 1984, this Court made a significant change in practice when such a motion is made by B at the close of A's case in a non-jury action. In that one situation, the Rule no longer requires the court to view the evidence in a light most favorable to A and to consider only the legal sufficiency of the evidence, so viewed, but allows the court to proceed as the trier of fact to make credibility determinations, to weigh the evidence, and to make ultimate findings of fact. As the BCA chairman responded, BCA, as an administrative agency not directly subject to Rule 2-519, treated the motion for summary disposition -- the functional equivalent of a motion for judgment -- in the more traditional manner. No one objected to that approach.

[***22] [*403]

   It has always been understood and recognized, however, that a party who makes and loses such a motion has an option. The party (B) may proceed to present additional evidence in an effort to controvert, or further controvert, the evidence produced in A's case, in which event B effectively withdraws the motion for judgment and may not complain on appeal about the denial of it (Md. Rule 2-519(c)), or B may rest on the denial of the motion and challenge on appeal the court's determination that the evidence was legally sufficient. n5 It would be illogical, and wholly inconsistent with that option, to conclude [**441] that, when B elects to pursue on appeal a challenge to the legal sufficiency of A's evidence, B effectively loses the right to do so on a strained notion of acquiescence. The logical dilemma is apodictic: if B produces evidence following denial of the motion, B effectively withdraws the motion for judgment and thereby loses its right to pursue on appeal the sufficiency argument presented by that motion; if, instead, B elects to stand on its legal position and not withdraw the right to pursue the matter on appeal by producing further evidence, it then, under MAA's theory, loses its[***23] right to present the issue on appeal by acquiescing in the ultimate judgment. If the law supposes that, then Mr. Bumble would indeed be correct in his characterization of it as "a ass, a [*404]idiot." CHARLES DICKENS, OLIVER TWIST, ch. 10. We shall not construe the law in such a manner. Whether under Rule 2-519 or under a comparable administrative practice, a party who does not have the burden of proof in the case may, through a proper motion made at the end of the case of the party who does have that burden, challenge the legal sufficiency of the evidence produced by that party, and, if the motion is denied, the moving party may decline to produce further evidence and, subject to compliance with other applicable procedures, pursue the legal issue on appeal or judicial review. The moving party does not lose that right, merely by declining to produce further evidence, through some notion of acquiescence. See Lake Shore Inv. v. Rite Aid Corp., 55 Md. App. 171, 461 A.2d 725, aff'd Rite Aid Corp. v. Lake Shore Inv., 298 Md. 611, 471 A.2d 735 (1984). n6 

 n5 As Judge Niemeyer and Ms. Schuett point out, there used to persist the notion that if B offered tangible evidence during A's case, B waived the right to move for directed verdict. That notion, they conclude, had no basis, for it would have effectively precluded B from cross-examining A's witnesses. Rule 2-519(a) was intended to eliminate any misconception on the matter by providing expressly that "[a] party does not waive the right to make the motion by introducing evidence during the presentation of an opposing party's case." PAUL V. NIEMEYER AND LINDA M. SCHUETT, MARYLAND RULES COMMENTARY 388 (2d ed. 1992). To the extent that B produces evidence in the course of A's case, whether through documents, cross-examination, or otherwise, there may well be a controverting of A's evidence at that stage. For purposes of a motion for judgment made at the end of A's case, however, while all of the evidence of record at that point must be considered, it must be considered in a light most favorable to A, with any contradictions resolved in favor of A. The presentation of additional evidence in B's case, whether by B or A, produces a different record for consideration (1) by the court, on any motion for judgment at the end of the entire case, or (2) by the trier of fact.

[***24] 

n6 We have applied that principle on a number of occasions in criminal cases. Md. Rule 4- 324(c) and Maryland Code, § 593 of Article 27 are direct analogs to Rule 2-519(c); they allow a defendant in a criminal case to move for judgment of acquittal at the end of the State's case and, if the motion is denied, produce evidence on his or her behalf. If the defendant proceeds in that fashion, the motion is deemed to be withdrawn. When a defendant elects not to produce such evidence, he or she may permit the case to be decided by the trier of fact on the State's evidence and argue the legal sufficiency of that evidence on appeal. See Cherry v. State, 305 Md. 631, 644-47, 506 A.2d 228, 235-36 (1986); Marr v. State, 227 Md. 510, 177 A.2d 862 (1962); see also Rowan v. State, 175 Md. 547, 3 A.2d 753 (1939);  Baines v. State, 37 Md. App. 505, 378 A.2d 177 (1977); Pearson v. State, 28 Md. App. 464, 347 A.2d 239 (1975); Sizemore v. State, 5 Md. App. 507, 248 A.2d 417 (1968). We have never applied an acquiescence theory to deny such review.

   MAA seeks to distinguish the criminal cases on two bases. First, it notes the provision in § 593 of Article 27 specifically allowing a criminal defendant "to have a review of such ruling on appeal," suggesting implicitly that, absent that provision, a criminal defendant who declines to present evidence also would have no right of appeal. The simple answer to that argument is that the quoted provision in § 593 is not the only basis for allowing appellate review. Section 593 was intended to implement the 1950 amendment to Article 23 of the Maryland Declaration of Rights, permitting the trial and appellate courts, in a jury case, to pass on the legal sufficiency of the evidence. See Gray v. State, 254 Md. 385, 255 A.2d 5 (1969), cert. denied, 397 U.S. 944, 90 S. Ct. 961, 25 L. Ed. 2d 126 (1970). It has no application to non-jury cases, and in jury cases, the law having authorized the trial court to pass on the legal sufficiency of the evidence, appellate jurisdiction to review such a determination would exist even without the statutory provision. The second ground of distinction, equally unavailing, is the assertion that, because a defendant in a criminal case bears no burden of proof, he or she has no obligation to produce any evidence. We see no practical difference in this regard between a party in a civil action having no burden to produce evidence on a particular issue and a criminal defendant having no such burden.

[***25] [*405]

   (2) Applicable Burdens of Proof

   Notwithstanding the concession in its brief that "because the termination for default was the State's claim, MAA had the burden of proving that Driggs had defaulted," MAA, in some of the comments made to BCA, seemed to take the position that its burden in that regard was only to produce a prima facie case and that, having done so, the burden of producing controverting evidence then shifted to Driggs. To some extent, its acquiescence argument and its reliance on Osztreicher seemed to rest on the notion that, following BCA's denial of Driggs's motion for summary disposition, Driggs did indeed have the burden of producing evidence and was therefore in essentially the same position as Mr. Osztreicher.

   Assuming, arguendo, that argument survives the concession as articulated in its brief, we find no merit in it. The authorities upon which MAA relies do not [**442] support its position with respect to shifting burdens of proof. It seems clear under the analogous Federal practice that the Government bears the burden of establishing "the correctness of its actions in terminating a contractor for default." Lisbon Contractors, Inc. v. U.S., supra,[***26] 828 F.2d at 764. Once that burden has been met, the contractor then has the burden of establishing any affirmative defenses to the termination, such as that the default was excused or waived or that there was some procedural irregularity in the decision to terminate for default ( Hannon Elec. Co. v. U.S., supra, 31 Fed. Cl. at 143; Appeal of California Dredging Co. ENGBCA No. 5532, 92-1 BCA P 24,475 (1991)), that the contractor's non-performance was justified ( Airprep Technology, Inc. v. U.S., 30 Fed. Cl. 488, 503-04 (1994)), or that, notwithstanding [*406] the right to terminate, the Government abused its discretion in doing so ( Appeal of Walsky Construction Co., ASBCA No. 41,541, 94-1 BCA P 26,698 (1993). Construction Co., supra, ASBCA No. 41541, on reconsideration, 94-2 BCA P 26,698. Those authorities do not establish the proposition that, merely because a BCA denies a motion for summary disposition upon a finding that the evidence, viewed in a light most favorable to the Government, would support a termination for default, the burden of producing evidence sufficient to negate that prima facie finding then shifts to the contractor. That would effectively place the burden of persuasion on the contractor, which the Federal[***27] authorities clearly hold is not the law. Indeed, that is not how BCA in this case viewed the matter. Once Driggs rested, BCA looked at all of the evidence again, but as a trier of fact, making credibility and weighing determinations. That is what it was supposed to do.
 
(C) Finality of BCA Order

   As we observed, because the MAA procurement officer had not issued a final agency determination of damages when the Driggs complaint was filed, BCA decided to bifurcate the damage issue and deal first, and separately, with whether MAA was justified in terminating for default. From the point of view of administrative convenience, that was not an inappropriate decision in this case. The very entitlement to damages would depend on how the termination for default issue was resolved; if Driggs was successful in converting the termination into a termination for convenience, it, not MAA would likely be entitled to monetary relief. The problem was, however, that monetary relief was part of both parties' respective claims. Neither was interested solely in an academic determination of whether the contract was properly terminated for default. MAA's counterclaim specifically asserted the[***28] right to damages, and the right of Driggs to monetary recoupment was explicit in the termination for convenience clause.

   In Holiday Spas v. Montgomery County, 315 Md. 390, 395, 554 A.2d 1197, 1199 (1989), we reaffirmed our holding in Md. Comm'n on Human Rel. v. B.G.&E., 296 Md. 46, 459 A.2d [*407] 205(1983), that "as a general rule, an action for judicial review of an administrative order will lie only if the administrative order is final." The general condition of finality, at the time, was imposed both by Rule and by the Administrative Procedure Act itself. With an exception codified to take account of the peculiar circumstance in the Holiday Spas case and which is not relevant here, that condition remains part of the Act.  See Maryland Code, State Government Article, § 10-222(a): "a party who is aggrieved by the final decision in a contested case is entitled to judicial review of the decision as provided in this section." (Emphasis added.) The exception, now found in § 10-222(b), permits judicial review of an interlocutory order if (1) the party seeking review would qualify for judicial review of a final decision, (2) the interlocutory order determines rights and[***29] liabilities and has "immediate legal consequences," and (3) postponement of judicial review "would result in irreparable harm." There is no indication in this case that the BCA decision sought to be reviewed had "immediate legal consequences" or that postponement of judicial review until the damage issue was resolved would result in "irreparable harm."

   We pointed out in Holiday Spas that, as a general rule, "an administrative order that determines liability but does not decide damages is not final" and that that general rule was "in accord with the rule that a judicial [**443] order that does not dispose of the entire case is ordinarily not final." Id. at 315 Md. 396-97, 554 A.2d at 1200. The salutary purpose of the finality requirement is to avoid piecemeal actions in the circuit court seeking fragmented advisory opinions with respect to partial or intermediate agency decisions. Not only would a contrary rule create the real prospect of unnecessary litigation, as a party choosing to seek review of an unfavorable interlocutory order might well, if the party waited to the end, be satisfied with the final administrative decision, but the wholesale exercise of judicial authority over[***30] intermediate and partial decisions could raise serious separation of powers concerns. Whether, for administrative purposes, the damages issue is treated as part of the claim but simply bifurcated and deferred or is treated [*408] as a separate claim, judicial review ordinarily must wait until the entire controversy is decided. That, of course, was not done here. The petition, seeking review of the June 25, 1996 decision was premature and should have been dismissed on that basis.

   Accordingly, we shall vacate the circuit court judgment of January 13, 1997 and remand the case to the circuit court. If the damages issues has not yet been resolved by BCA, the court shall dismiss the petition as being premature and remand the matter to BCA for a final decision. If, by now, the damages issues has been resolved by BCA, the court should allow Driggs to file a new petition or amend the existing one, as appropriate, and then proceed in accordance with § 10-222 and the applicable rules to provide judicial review.

   JUDGMENT OF CIRCUIT COURT VACATED; CASE REMANDED FOR FURTHER PROCEEDINGS IN ACCORDANCE WITH THIS OPINION; APPELLEE TO PAY THE COSTS. 

DEPARTMENT OF HEALTH AND MENTAL HYGIENE v. DAVID MARTIN 
No. 44, September Term, 1997
 
COURT OF APPEALS OF MARYLAND
 
348 Md. 243; 703 A.2d 166; 1997 Md. LEXIS 626

 December  12, 1997, Filed

   PRIOR HISTORY: [***1]

   Certiorari to the Court of Special Appeals (Circuit Court for  Anne Arundel  County). Bruce C. Williams, JUDGE.

COUNSEL: ARGUED BY Anderew H. Baida, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General; David R. Morgan, Assistant Attorney General, all on brief) of Baltimore, MD, FOR PETITIONER.
 
ARGUED BY Kelly Bagby (Cathy S. Surace, Steven Ney, Maryland Disability Law Center, on brief) of Largo, MD, FOR RESPONDENT.
 
AMICUS CURIAE Maryland Psychiatric Society, Inc., Sinai Hospital of Baltimore, Inc., Taylor Manor Hospital, and Sheppard Pratt Health System, Inc. American Civil Liberties Union of Maryland, the American Orthopsychiatric Association, and the Judge David L. Bazelon Center for Mental Health Law.

JUDGES: ARGUED BEFORE Bell, C.J.; Eldridge, Rodowsky, Chasanow, Raker, Wilner, AND Karwacki, Robert L. (retired, specially assigned), JJ.

OPINION: [*244]

   [**167] PER CURIAM ORDER

   In light of circumstances occurring after the institution of this action, which were mentioned in the parties' briefs before this Court and which were explained in greater detail at oral argument, it is clear that the case has become moot.

   NOW, THEREFORE, it is this 12th day of December, 1997,

   ORDERED, [***2] by the Court of Appeals of Maryland, a majority of the Court concurring, that the judgment of the Court of Special Appeals be, and it is hereby, vacated and the case is remanded to the Court of Special Appeals with directions to vacate the judgment of the Circuit Court for Anne Arundel County and to remand the case to the Circuit Court for Anne Arundel County with directions to dismiss the case on the ground of mootness. Costs to be paid by the Department of Health and Mental Hygiene.

   /s/ Robert M. Bell

   Chief Judge 

Williams, Scotland Eugene v. State 
Pet. Docket No. 455, September Term, 1997
 
COURT OF APPEALS OF MARYLAND
 
348 Md. 207; 703 A.2d 148; 1997 Md. LEXIS 677

 December  10, 1997, Decided

   PRIOR HISTORY: [*1] (No. K-94-1073, Circuit Court for  Anne Arundel  County).

OPINION: PETITION FOR WRIT OF CERTIORARI denied. 

RUDOLPH ALBERT BOWMAN et al. v. DAVID A. GOAD, SHERIFF OFALLEGANY COUNTY et al. 
No. 51, September Term, 1997
 
COURT OF APPEALS OF MARYLAND
 
348 Md. 199; 703 A.2d 144; 1997 Md. LEXIS 622

 December  9, 1997, Filed

   PRIOR HISTORY: [***1] Appeal from the Circuit Court for  Anne Arundel  County pursuant to certiorari to the Court of Special Appeals. Eugene Lerner, JUDGE.

DISPOSITION: JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY VACATED. CASE REMANDED TO THAT COURT WITH DIRECTIONS TO DISMISS THE COMPLAINT. COSTS TO BE PAID BY THE APPELLANT RUDOLPH ALBERT BOWMAN.

CORE TERMS:  refund, common law action, mistake of law, collected, statutory provision, services rendered, prescribed, protest, administrative remedy, wrongfully assessed, refund claim, erroneously, recoverable, developers, illegally, authorizes, recovered, claimant, summary judgment, legislative history, statutory remedy, motor vehicle, statutorily, sanctioning, unlawfully, collection

COUNSEL: ARGUED BY Alan Hilliard Legum (Frederick R. Franke, Jr., both of Annapolis, MD; Lloyd Clinton, Jr., Law Office of Michael Gilligan of Glen Burnie, MD) all on brief, FOR APPELLANTS.
 
ARGUED BY Julia M. Freit, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General, on brief) of Baltimore, MD, FOR APPELLEES.

JUDGES: ARGUED BEFORE Bell, C.J.; Eldridge, Rodowsky, Chasanow, Raker, Wilner, and Karwacki, Robert L. (retired and specially assigned), JJ. Opinion by Eldridge, J.

OPINIONBY: Eldridge

OPINION: [*200]
 
[**144] Opinion by Eldridge, J.
 
Rudolph Albert Bowman, for "himself and others similarly situated," instituted this "class action" [***2] by filing a complaint in the Circuit Court for Anne Arundel County. Bowman sought, on behalf of all members of the class, "to be recompensed for . . . wrongly charged fees" paid to sheriffs for serving process in motor vehicle prosecutions. Named as defendants were the sheriffs of 22 Maryland counties and of Baltimore City. n1 The complaint alleged that the sheriffs had unlawfully "received fees from [the] plaintiffs" and that Maryland Code (1977, 1992 Repl. Vol.), § 26-410 of the Transportation Article, which states that a "sheriff is not entitled to any fee for services rendered in connection with a prosecution under the vehicle laws of this state," should have precluded the collection of these fees. n2 The only relief sought was money damages, [*201] representing [**145] compensation for the fees paid, plus attorney's fees.

n1 The Sheriff of Carroll County was not named as a defendant. Whether there was a reason for this omission, or whether it was inadvertent, is not apparent from the record.

n2 Maryland Code (1977, 1992 Repl. Vol., 1997 Supp.), § 26-410 of the Transportation Article currently provides as follows:

   " § 26-410. Fees for Sheriffs.

   "Notwithstanding any local law to the contrary, a sheriff is not entitled to any fee for services rendered in connection with a prosecution under the vehicle laws of this State in excess of the fees prescribed for sheriffs by § 7-402 of the Courts Article." (Italics added).
 
The italicized language was added after this suit was filed, by Ch. 32 of the Acts of 1997.

[***3]

   In response, the Attorney General's Office, on behalf of the sheriffs, filed a "Motion for Dismissal or Summary Judgment," arguing that the language of Code (1973, 1995 Repl. Vol.), § 7-402 of the Courts and Judicial Proceedings Article, controlled and authorized the collection of the fees. n3 Following a hearing, the circuit court agreed with the Attorney General's interpretation of the statutes and granted the defendants' motion for summary judgment.

n3 Section 7-402 of the Courts and Judicial Proceedings Article states, in relevant part, as follows:

   " § 7-402. Sheriff's fees.

   "(a) Fees. -- Except as provided in subsection (b) of this section, a sheriff shall collect the following fees:
 
    * * *

   "(2) $30 for service of a paper not including an execution or attachment."

   Bowman appealed to the Court of Special Appeals. Prior to consideration of the appeal in that court, we issued a writ of certiorari. The issues presented in Bowman's brief are as follows:

   "1. Whether a statute stating that '[a] sheriff[***4] is not entitled to any fee for services rendered in connection with a prosecution under the vehicle laws of this state' precludes sheriffs from charging and collecting fees for service of papers in a prosecution of motor vehicle cases.

   "2. Whether resort to the legislative history of a statute is appropriate when the statute is plain on its face.

   "3. Whether an explicit statement of the purpose of a statute as contained in the legislative history may be ignored on the theory that the General Assembly was wrong in an underlying assumption as to the existing law." [*202]
 
We shall not, however, be able to reach these issues. Moreover, the circuit court should not have decided the merits of the statutory interpretation question debated by the parties. Even accepting arguendo Bowman's interpretation of the statutory provisions prior to the 1997 amendment, his complaint failed to set forth a cause of action and should have been dismissed.

   At oral argument before us, both sides conceded that there was no statutory provision specifically authorizing a suit of this nature, and this Court is aware of no such provision. The general rule in Maryland is that no common law action lies for the[***5] recovery of taxes or governmental fees which the plaintiff has voluntarily paid under a mistake of law, and that any statutorily prescribed refund remedy is exclusive. The controlling principles were summarized by this Court in Apostol v. Anne Arundel County, 288 Md. 667, 672-673, 421 A.2d 582, 585 (1980), as follows:

   "It is firmly established in this State that once a taxpayer voluntarily pays a tax or other governmental charge, under a mistake of law or under what he regards as an illegal imposition, no common law action lies for the recovery of the tax absent a special statutory provision sanctioning a refund. This is true even if payment is made under protest. Moreover, in these circumstances, no common law or declaratory judgment action lies to challenge the validity of a tax so paid. Where there is a special statutory provision sanctioning a refund, although no particular statutory remedy is provided, an action in assumpsit is available. . . . Where there is statutory authorization for a refund and a special statutory remedy set forth, that remedy is exclusive.

    * * *
 
"Furthermore, the rule that no action lies to challenge the validity of a tax paid under a mistake[***6] of law, except for any refund sanction specifically provided by the Legislature, has been applied consistently by this Court, regardless of the nature of the legal attack mounted or the type of mistake of law claimed." [*203]
 
[**146] Moreover, for reasons of public policy, this Court will sua sponte raise and apply the above-summarized principles. See, e.g., Nordheimer v. Montgomery County, 307 Md. 85, 96, 512 A.2d 379, 385-386 (1986); Potomac Elec. Power v. P.G. County, 298 Md. 185, 189, 468 A.2d 325, 327 (1983).

   The general doctrine that payments of taxes or other governmental fees or charges, voluntarily made under a mistake of law, are not recoverable in a common law action, and that any statutorily prescribed refund procedure is ordinarily the exclusive remedy, has been applied by this Court in a wide variety of situations. In addition to the cases previously cited, see, e.g., Wash. Sub. San. Comm'n v. Mitchell & Best, 303 Md. 544, 572-578, 495 A.2d 30, 44-48 (1985) (allegedly unauthorized water and sewer connection charges, paid by developers, could not be recovered in a declaratory judgment or common law action, because the charges were "voluntarily paid" even though[***7] the developers could not obtain plumbing or building permits without first paying the connection charges); White v. Prince George's Co., 282 Md. 641, 646, 650-654, 387 A.2d 260, 263-264, 266-268 (1978) (tax claimed to be unconstitutionally retroactive); Rapley v. Montgomery County, 261 Md. 98, 103-110, 274 A.2d 124, 127, 131 (1971) (transfer taxes, paid under protest and challenged on constitutional grounds, not recoverable in a common law action); Wasena Housing Corp. v. Levay, 188 Md. 383, 387-391, 52 A.2d 903, 905-907 (1947) (property taxes, paid under protest and required to be paid for the deed to be recorded, were "voluntarily paid" and could not be recovered in a common law action); Red Star Line v. Baughman, 153 Md. 607, 611, 139 A. 291, 293 (1927) (involved license fees claimed to be unconstitutional under the Commerce Clause); Helser v. State, 128 Md. 228, 231, 97 A. 539, 540 (1916); Baltimore v. Harvey, 118 Md. 275, 277-278, 84 A. 487, 490-491 (1912); Monticello Co. v. Balto. City, 90 Md. 416, 433, 45 A. 210, 214 (1900); Mayor, etc. of Baltimore v. Hussey, 67 Md. 112, 115-117, 9 A. 19, 20-21 (1887); Lester v. Mayor and City Council of [***8]  Baltimore, 29 Md. 415, 417-420 (1868); Morris v. Mayor & C. C. of Balt., 5 Gill. 244, 248 [*204] (1847); M. & C. C. of Balt. v. Lefferman, 4 Gill. 425, 430-431 (1846).

   Furthermore, the General Assembly has now provided broad administrative refund remedies covering every type of tax, fee, or charge improperly collected by a Maryland governmental entity. Code (1988), § 13-901(a)(2) of the Tax-General Article authorizes a refund claim by a claimant who "pays to the State a tax, fee, charge, interest, or penalty that is erroneously, illegally, or wrongfully assessed or collected in any manner . . . ." Code (1957, 1996 Repl. Vol.), Art. 24, § 9-710, authorizes an administrative refund claim by a claimant who "pays to a county or municipal corporation a tax, fee, charge, interest, or penalty that is erroneously, illegally, or wrongfully assessed or collected in any manner." If the defendant sheriffs had unlawfully collected fees from the plaintiff Bowman and the other members of the putative class, each one had an administrative remedy. As our cases make clear, that administrative remedy is exclusive. Nordheimer v. Montgomery County, supra, 307 Md. at 97, 512 A.2d at 385; Apostol [***9]  v. Anne Arundel County, supra, 288 Md. at 672, 421 A.2d at 585; White v. Prince George's Co., supra, 282 Md. at 650-654, 387 A.2d at 265-268.

    JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY VACATED. CASE REMANDED TO THAT COURT WITH DIRECTIONS TO DISMISS THE COMPLAINT. COSTS TO BE PAID BY THE APPELLANT RUDOLPH ALBERT BOWMAN. 

CHAMPE C. McCULLOCH et al. v. PARRIS N. GLENDENING et al. 
No. 11, September Term, 1997
 
COURT OF APPEALS OF MARYLAND
 
347 Md. 272; 701 A.2d 99; 1997 Md. LEXIS 504; 156 L.R.R.M.2560

 October  10, 1997, Filed

   PRIOR HISTORY: [***1] Appeal from the Circuit Court for  Anne Arundel  County pursuant to certiorari to the Court of Special Appeals. Eugene Lerner, JUDGE.

DISPOSITION: JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AFFIRMED, WITH COSTS TO BE PAID BY THE APPELLANTS.

CORE TERMS:  governor, collective bargaining, binding, team, negotiate, exclusive bargaining representative, employee organization, bargaining, wages, separation of powers doctrine, memorandum of understanding, certification, arbitrator, election, binding arbitration, labor-management, personnel, duty, legislative authority, work week, approve, bargain collectively, management team, recommendation, appropriation, negotiation, resolving, branches of government, governmental agency, demarcation

COUNSEL: ARGUED BY James L. Shea (A. Samuel Cook, Mitchell Y. Mirviss and David R. Warner, Venable, Baetjer and Howard, LLP, on brief) of Baltimore, MD, FOR APPELLANTS.
 
AMICUS CURIAE Edwin Vieira, Jr. of Manassas, VA (Amicus of Larry D. Kump in support of appellants).
 
ARGUED BY Lawrence P. Fletcher-Hill/Assistant Attorney General (J. Joseph Curran, Jr., Attorney General; Andrew H. Baida, Assistant Attorney General; Jonathan R. Krasnoff and Jean H. Baker, Assistant Attorneys General, all on brief) of Baltimore, MD, FOR APPELLEE.

JUDGES: ARGUED BEFORE Bell, C. J., Eldridge, Rodowsky, Chasanow, Raker, Wilner, Karwacki, Robert L. (retired, specially assigned) JJ. Opinion by Bell, C.J.

OPINIONBY: BELL

OPINION: [*275]
 
[**100] Opinion by Bell, C.J.
 
 The issue this case presents is whether the Constitution and laws of Maryland authorize the Governor, as the Chief Executive of the State of Maryland, to address by the subject executive order labor-management relations in the Executive Branch by means of a system of collective bargaining. We shall hold, under the circumstances here presented, that they do.

   It is well settled that not all collective bargaining agreements to which the State or a governmental agency is a party require prior express legislative approval; it is only those that contain a binding arbitration clause or are otherwise binding upon and enforceable against the State. See Anne Arundel Co. v. Fraternal Order of Anne Arundel Detention Officers, 313 Md. 98, 113-14, 543 A.2d 841, 848-49 (1988); Office and Prof. Empl. Int'l Union Local 2 v. Mass Transit Admin. ("MTA"), 295 Md. 88, 97, 453 A.2d 1191, 1195 (1982); Maryland [***2] Classified Empl. Ass'n v. Anderson ("MCEA"), 281 Md. 496, 508-513, 380 A.2d 1032, 1038-41 (1977); Mugford v. City of Baltimore, 185 Md. 266, 270-71, 44 A.2d 745, 747 (1945). In MTA, the principle was stated thusly:
 
absent express legislative authority, a government agency cannot enter into binding arbitration or binding collective bargaining agreements establishing wages, hours, pension rights, or working conditions for public employees.
[*276]
 
295 Md. at 97, 453 A.2d at 1195. We stated the purpose of the rule in Montgomery County Educ. Ass'n v. Board of Educ. of Montgomery County, 311 Md. 303, 313, 534 A.2d 980, 984-85 (1987), is "to insure that a governmental agency does not, without authority, abdicate or bargain away its statutory discretion." We must keep this principle before us as we consider the issue presented.

   The genesis of this case is Executive Order 01.01.1996.13, which Governor Glendening issued [**101] on May 24, 1996. n1 Entitled "Procedures for Labor-Management Relations in the Executive Branch of State Government," the stated goal of the Executive Order is to ensure "constructive and cooperative relationships between the Executive Branch and Executive[***3] Branch employees" to the benefit of the citizens of this State. To that end, it gives to the employees n2 of the principal departments within the Executive Branch, n3 the Maryland Insurance [*277] Administration, the State Department of Assessments and Taxation, and the State Lottery Agency, PA, the "right to: (1) organize, form, join or assist any employee organization; (2) bargain collectively n4 through representatives of their own choosing; (3) engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection insofar as any such activity is not prohibited by any other law of the State of Maryland or this Executive Order." P C. As paragraph E(1), defining "collective bargaining," "bargain collectively," and "negotiate," makes clear, the objective of giving the employees the rights set out in paragraph C is so that "the parties, upon completion of negotiations, shall execute a written memorandum of understanding incorporating the terms of any agreement reached." That paragraph also provides some conditions:

   to the extent [any terms of the agreement] require legislative approval or the appropriation of funds, [those] terms shall be recommended[***4] to the Legislature for approval or the appropriation of funds, as may be necessary. The duty to bargain shall include the obligation to negotiate in good faith for the purpose of resolving any questions arising under an existing memorandum of understanding. Notwithstanding the foregoing, the employer shall not be required to negotiate with regard to any matter that would be inconsistent with applicable law, and the employer may negotiate and reach agreement with regard to any such matter only if it is understood that the agreement with respect to such matter cannot become effective unless the applicable law is amended to eliminate any such inconsistency.

n1 Before he issued the Executive Order, the Governor sought the advice of the Attorney General, which he received in a letter dated May 23, 1996. In that letter, Attorney General Curran opined that the Executive Order "does not involve the kind of collective bargaining that requires statutory authorization," i.e., it is not "binding collective bargaining - that is, a process of negotiation between State officials and employee representatives that culminates in an agreement enforceable against the State." He also made the point that "no specific statutory authorization is needed for State officials to meet with employee representatives to discuss aspects of labor relations."

[***5] 

n2 "Employee" does not include student, temporary, confidential, managerial, and supervisory personnel, individuals in custody of the Department of Public Safety and Correctional Services, and chief administrative or executive officers of an agency. P E(2). 

n3 The principal departments of the Executive Branch of the State government are enumerated in Maryland Code (1996, 1995 Repl. Vol, 1997 Supp.) § 8-201 (b) of the State Government Article: (1) Agriculture; (2) Budget and Management; (3) Business and Economic Development; (4) the Environment; (5) General Services; (6) Health and Mental Hygiene; (7) Housing and Community Development; (8) Human Resources; (9) Juvenile Justice; (10) Labor, Licensing, and Regulation; (11) Natural Resources; (12) Public Safety and Correctional Services; (13) State Police; and (14) Transportation. By its express terms, the Executive Order does not apply to "employees of the Mass Transit Administration, as that term is defined in § 7-601(a)(2) of the Transportation Article."

n4 Paragraph E(1) defines "collective bargaining," "bargain collectively," and "negotiate" as "the mutual obligation of the employer and the employee exclusive bargaining organization to negotiate in good faith at reasonable times and places with respect to wages, hours, and other terms and conditions of employment."

[***6]
 
The Mediation Unit of the Department of Labor, Licensing and Regulation is designated by the Governor to administer the Order and, for that purpose, given certain rights. Those [*278] rights include the power to hold hearings, conduct elections, make determinations regarding the certification of the "exclusive bargaining representative," promulgate guidelines, and establish procedures for the implementation of the Order. P D. The Mediation Unit's powers do not include the initial determination of the bargaining units and the assignment of the employees to them; that responsibility has been given to the Secretary [**102] of Personnel n5 or the Governor's designee. P F. The Order also enumerates the factors to be used in making the unit assignments, id., and it defines the "appropriate bargaining units" in terms of nine categories of employees, P E(10).

n5 Effective July 1,1996, the Department of Personnel was moved to the Department of Budget and Management as the Office of Human Resources. The former Secretary is now the Executive Director of Human Resources. See Laws, 1996, ch. 349 § 3.

[***7]

   The Executive Order contains detailed procedures concerning the certification of "employee organizations" n6 as "employee exclusive bargaining representatives." n7 The authority of the administrator of the Order to certify an exclusive bargaining unit and to resolve disputes with respect to the conduct of representative elections is treated in paragraph G. That paragraph also provides for employee organization agreement and, in fact, prescribes a procedure for resolving any disputes with respect to them:
 
In any election involving more than one employee organization. Such organizations can agree, subject to the approval of such official, that disputes regarding specified issues will be resolved by an impartial third party arbitrator [*279] selected in accordance with such agreement, and the decision or decisions of such arbitrator shall be final and binding on such organizations; and provided further, that any such agreement shall provide that the costs of the arbitrator shall be shared equally by the employee organizations involved.

n6 Paragraph E(8) defines "employee organization" as " an organization in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, hours, and terms and conditions of employment of such employees."

[***8] 

n7 "Employee exclusive bargaining representative" and "exclusive bargaining representative" is defined as "an organization certified as the exclusive bargaining representative pursuant to the provisions of this Order." P E(9).

 
The procedure for an employee organization to petition for certification as the bargaining representative for a particular bargaining unit, when and by whom notice of the petition is given, and the procedure for intervention are addressed in paragraphs H, I, and J. Elections under the Order are the subject of paragraph K, while paragraph L deals with the duration of a certification as the employee exclusive bargaining representative and paragraph M involves decertification petitions. Although an exclusive bargaining representative enjoys certain rights under the Executive Order, n8 i.e.,
 
(1) entitled to speak on behalf of all employees in the unit and shall be responsible for representing the interests of all such employees without discrimination and without regard to employee organization membership;
 
(2) exclusively permitted to have organizational[***9] membership dues collected by payroll deduction upon signed written request of employee conforming to law; except that any other organization that qualifies for payroll deduction of dues pursuant to § 6-402 of the State Personnel Article of the Annotated Code of Maryland shall continue to be eligible to receive payroll deduction of dues for as long as it remains so qualified; and
 
(3) entitled to meet and negotiate with the Governor or the Governor's designee on wages, hours, and working conditions in an effort to reach an agreement subject to the approval of the Governor,

   O, minority rights were not ignored. In addition to the proviso in paragraph O(2), paragraph N of the Order provides: [*280]
 
Certification of an employee exclusive bargaining representative shall not preclude any employee or group of employees, regardless of employee organization membership, from bringing matters of personal concern to the attention of appropriate officials with a representative of his/her own choosing in a grievance proceeding held [**103] pursuant to a memorandum of understanding. 

n8 On the debit side of the equation for the employee organization certified as the exclusive representative, the Order prohibits a strike or work stoppage. P Q.

[***10]
 
Moreover, certain actions are proscribed by managerial and supervisory employees, "to the fullest extent permitted by law:"
 
(1) interfering with, restraining, or coercing Executive Branch employees in the exercise of rights granted by the Order;

    (2)
 
interfering with, restraining, or coercing an Executive Branch employee with respect to selecting a representative for purposes of negotiating collectively or adjustment of grievances;
 
(3) 
 
refusing to bargain collectively with the employee exclusive bargaining representative as required in the Order; or
 
(4) 
 
refusing to negotiate in good faith or to execute or implement any memorandum of understanding negotiated pursuant to the Order. 
 
P P.

   Paragraph R addresses the revocation or amendment of the Order, simply stating that "this Order may be revoked or amended by the Governor at any time." Finally, the Order makes clear that "the provisions of this Order shall in no way diminish or infringe any rights, responsibilities, power or duties conferred by the Constitution of the State of Maryland and the Annotated Code of Maryland." P S.

   Champe C. McCulloch, Donald P. Hutchinson, [***11] and John R. Tydings, the appellants, n9 as resident taxpayers of Maryland, [*281] filed a Complaint and Request for Declaratory and Injunctive Relief in the Circuit Court for Anne Arundel County, seeking to prevent the implementation of Executive Order No 01.01.1996.13. Naming as defendants Governor Parris N. Glendening and Eugene A. Contie, Jr, Secretary of the Maryland Department of Labor, Licensing and Regulation ("the appellees"), the appellants alleged that the Order is invalid and unconstitutional because (1) it violates the separation of powers doctrine and exceeds the statutory powers of the Governor; and (2) it conflicts with the Maryland General Assembly's repeated rejection of similar collective bargaining bills and the Assembly's enactment of the State Personnel Management System Reform Act of 1996, Md. Code (1996, 1997 Repl. Vol.) §§ 3-101-3 to 107 of the State Pers. & Pens. Article. Cross motions for summary judgment having been filed, the circuit court, after conducting a hearing on the motions, issued a Memorandum and Order declaring the rights of the parties and upholding the validity of the Executive Order. Following the appellants' timely appeal to the Court of Special[***12] Appeals, on our own motion and before that court considered the matter, we issued the writ of certiorari to address the important issues raised. We shall affirm the judgment of the circuit court.

n9 Champe C. McCulloch is President of Maryland Chamber of Commerce; Donald P. Hutchinson is President of the Greater Baltimore Committee; and John R. Tydings is President of the Greater Washington Board of Trade.

 
   I.

   The circuit court found that "Executive Order 01.01.1996.13 meets Maryland constitutional and statutory requirements and is not in violation of the separation of powers." The court also rejected the appellants' argument that the Legislature's failure to pass comprehensive collective bargaining legislation either preempted the Order or somehow precluded its issuance. Moreover, finding that the Order is a valid exercise of the Governor's broad authority to supervise and direct Executive Branch employees, the court concluded as well that the [*282] Order did not impose any limits on the Governor's or the General[***13] Assembly's ability to carry out their functions.

   On this appeal, the appellants maintain the same themes they asserted in the trial court. They present in this Court four arguments which they maintain require reversal of the judgment below: 
 
First, the Executive Order collides impermissibly with both the Personnel Reform Act of 1996, in which the General Assembly expressly adopted a contrary approach to employee relations, and also with the direct legislative defeats of similar statewide [**104] initiatives over more than 50 years. Second, the Order exceeds the Governor's limited power to issue executive orders and otherwise establish State personnel policy. Third and Fourth, the Order violates Maryland's constitutional separation of powers doctrine because it imposes both an "exclusive" and "binding" system of collective bargaining upon the State and its employees without prior legislative authorization.
 
Not surprisingly, the appellees take the contrary view. Finding no flaw in the decision of the circuit court, or the reasoning underlying it, they urge this Court to affirm that judgment.

   II.

   (a)

   Appellants argue, quoting Crane v. Meginnis,[***14] 1 G. & J. 463, 477 (1829), that the separation of powers doctrine creates a sharp demarcation in the lines of authority of government, and it "confines in practice the action of each department to its own appropriate sphere, by forbidding to it the use of powers allotted to the co-ordinate departments." Hence, they insist that, by issuing the Executive Order "absent express legislative authority" and in spite of numerous legislative defeats of similar initiatives, the Governor effectively usurped the law-making power of the Legislature.

   The Governor's executive power is expressly provided in the Maryland Constitution. It can be found in two sections, namely, Article II, § 1, which vests the executive power of the [*283] State in the Governor, and Article II, § 9, which directs the Governor to take care that the laws are faithfully executed. As the Chief Executive of State government, the Governor is responsible for the execution of the laws of Maryland. Md. Const. Art. II, § 1; Bradshaw v. Lankford, 73 Md. 428, 21 A. 66 (1891).

   The separation of powers doctrine is found in Article 8 of the Declaration of Rights of the Constitution of Maryland. It provides:
  
The Legislative, Executive[***15] and Judicial powers of Government ought to be forever separate and distinct from each other; and no person exercising the functions of one said Departments shall assume or discharge the duties of any other.
 
Despite its language, the doctrine has never been so rigidly applied, certainly not to the point of creating the sharp demarcation that the appellants envision. To the contrary, this Court has quite recently stated that it has "repeatedly pointed out that Art. 8 of the Maryland Declaration of Rights does not impose 'a complete separation between the branches of government."' Judy v. Schaefer, 331 Md. 239, 261, 627 A.2d 1039, 1050 (1993)(quoting Dep't of Trans. v. Armacost, 311 Md. 64, 81, 532 A.2d 1056, 1064 (1987)). Indeed, rooted in the belief that "separating the functions of government and assigning the execution of those functions to different branches was fundamental to good government and the preservation of civil liberties," Armacost, 311 Md. at 78, 532 A.2d at 1062, its purpose, therefore, is to "preserve[] to the one branch of government its essential functions and prohibit[] any other branch from interfering with or usurping those functions," [***16] O'Hara v. Kovens, 92 Md. App. 9, 22-23, 606 A.2d 286, 292, cert. denied, 328 Md. 93, 612 A.2d 1316 (1992), not, as argued by appellants, to create clear lines of "demarcation." Since the beginning of our constitutional democracy, this Court has recognized that the respective powers of the legislative, executive and judicial branches of government are not "wholly [*284] separate and unmixed." Crane, 1 G. & J. at 476 n10; see also Christ v. Dep't of Nat. Res, 335 Md. 427, 441, 644 A.2d 34, 40 (1994); Baltimore v. State, 15 Md. 376, 459[**105] (1860) ("The words of the Article appear to be plain enough, but they have not been accepted in their literal sense."); Dep't Nat. Res. v. Linchester, 274 Md. 211, 220, 334 A.2d 514, 521 (1975)("the separation of powers concept may constitutionally encompass a sensible degree of elasticity"); 1 F. Cooper, State Administrative Law, at 15 (1965)("the doctrine of separation of powers does not forbid the exercise by one department of powers that could appropriately be exercised by another department . . . there may be a 'blending' of disparate powers"). Thus, the separation of powers doctrine does not require absolute separation between the branches [***17]of government. See generally Baltimore, 15 Md. at 459 ("entire practical separation was not designed").

n10 The appellants' reliance on Crane, 1 G. & J. at 476 for the proposition that "the legislative department is nearest to the source of power and is manifestly the predominant branch of the government" is misplaced in two material respects. First, Crane involved "the exercise by the Legislature of judicial power in the passage of law," id. at 477, not the exercise by the Executive of legislative power or vice versa. Second, at the time Crane was decided, the Maryland Constitution of 1776 expressly provided for the appointment of the Executive by the Legislature. Despite these two differences, we recognized in Crane that the powers of the branches of State government are "blended" and "mingled together." Id. at 476.

    Contrary to the suggestion by the appellants that the subject of the Executive Order is one resting solely and exclusively within the purview of the legislative branch, [***18] and without in any way denigrating the legislative prerogative in this area, the Executive has a significant role in setting policies to govern the management and supervision of State employees; the Governor has broad discretionary powers granted him both by the Constitution, as we have seen, and by statute. Entirely consistent with, and complementary of the Governor's executive power under Article II, § 1, the General Assembly has, through enactment of Md. Code (1957, 1995 Repl. Vol.) § 3-302 of the State Govt Article, entrusted to the Governor the power to establish personnel policies and to [*285] require executive agency heads to carry out those policies. Reminiscent of Article II, § 1, § 3-302 declares, "the Governor is the head of the Executive Branch of State government and, except as otherwise provided by law, shall supervise and direct the officers and units in that Branch." See Md. Code (1996, 1997 Repl. Vol.) § 2-201 of the State Pers. & Pens. Article ("an employee in the Judicial, Legislature, or Executive Branch of State government is governed by the laws and personnel procedures applicable in that Branch"). In addition, the Legislature has authorized the Governor to [***19]issue executive orders that
 
(1) 
 
proclaims or ends a state emergency, under Article 41, § 2-101 of the Code;
 
(2) 
 
adopts guidelines, rules of conduct, or rules of procedure for:

   (i) 
 
State employees;

   (ii) 
 
units of the State government; or

(iii) persons who are under the jurisdiction of those employees or units or who deal with them;
 
(3)
 
establishes a unit, including an advisory unit, study unit, or task force; or
 
(4) 
 
changes the organization of the Executive Branch of the State government. n11 

n11 The Governor has broad authority to reorganize and reassign functions among executive branch agencies pursuant to Article II, section 24, of the State Constitution, which provides in pertinent part:

 
 
The Governor may make changes in the organization of the Executive Branch of the State Government, including the establishment or abolition of departments, offices, agencies, and instrumentalities, and the reallocation or reassignment of function, powers, and duties among the departments, offices, agencies, and instrumentalities of the Executive Branch. Where these changes are inconsistent with existing law, or create new governmental programs they shall be set forth in executive orders in statutory form which shall be submitted to the General Assembly within the first ten days of a regular session.
 
Section 8-301 of the State Government Article states that "in addition to any reorganization under Article II, § 24 of the Maryland Constitution, the Governor may order any other reorganization of the Executive Branch that is considered by the Governor to be necessary and desirable and that is not inconsistent with law."
 
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***20][*286]
 
Md Code (1957, 1995 Repl. Vol.) § 3-401, State Govt. Article. Given the breadth of the authority that the Legislature has bestowed on the Governor in § 3-302 and § 3-401 (2), (3) and (4), a strong argument can be made, as the appellees have done, that the Executive Order can be upheld on the statutes alone. In any event, when the statutory and constitutional provisions are considered together, it becomes crystalline that the Governor has broad power and authority over Executive Branch employees and their working conditions.

   We made just that point in Maryland Classified Empl. Ass'n v. Schaefer, 325 Md. 19, 34, 599 A.2d 91, 98 (1991), cert. denied, 502 U.S. 1090, 112 S. Ct. 1160, 117 L. Ed. 2d [**106] 407 (1992). At issue in that case was the validity of an Executive Order that increased the work week of most State employees from 35 1/2 to 40 hours without additional compensation. The Governor's reasoned that a "standardized '40 hour work week for State government [would] achieve cost containment through increased productivity and employee development.'" Id. at 22, 599 A.2d at 92. To achieve that end, the Governor directed the Secretary of Personnel and designated authorities[***21] to "take all actions necessary or desirable to implement" the Executive Order. Id. at 21, 599 A.2d at 92. The plaintiffs contended, inter alia, that the Governor's promulgation of the Executive Order usurped the plenary power of the General Assembly and exercised a legislative function, which violated the separation of powers doctrine. Id.  at 28, 599 A.2d at 95. This Court rejected that argument, essentially the same one made here, observing:
 
The Governor, as head of the Executive Branch, has broad powers with respect to Executive Branch State employees and over the Secretary of Personnel, who exercises his power subject to the Governor and carries out the Governor's policies with respect to personnel matters. Consequently, there is no foundation to the plaintiffs' argument [*287] that the Governor has no authority to fix normal work week by Executive Order.
 
Id. Moreover, we adopted the trial court conclusion, "that the definition of an Executive Order in § 3-401 of the State Government Article was sufficiently broad 'to allow the Governor to control and direct the officers over whom he is statutorily given control... [including] the essential aspects[***22] of state employment such as hours in a work week." Id. at 29, 599 A.2d at 95.

   In this case, as we did in Schaefer, we agree with the trial court that "Executive Order .01.01.1996.13 meets Maryland constitutional and statutory requirements and is not in violation of the separation of powers." The Governor's broad authority, under Article 8 of the Maryland Declaration of Rights as well as sections 3-302 and 3-401 of the State Government Article, to issue executive orders for the guidance and direction of units and employees of the Executive Branch necessarily permits the promulgation of an executive order authorizing the limited collective-bargaining rights for Executive Branch employees contained in the subject Order. This act is an exercise of executive function, not a usurpation of legislative function.

   (b)
 
Appellants' second contention is that the Executive Order is invalid because it conflicts with the labor-management scheme adopted by the General Assembly in the enactment of the State Personnel Management Reform Act of 1996, §§ 3-101 to 3-107 of the State Pers. & Pens. Article. Appellants argue that, while the Act "avoids both the collective-bargaining and[***23] the non-binding 'labor-management partnership' of meet and confer sessions with labor organizations," the Executive Order mandates a process "requiring collective bargaining between management and union toward the execution of formal agreements on conditions of employment." Hence, according to the appellants, the Executive Order "contradicts the Act's objective of informal, participative employee-management relations by establishing a competing and overlapping [*288]scheme for resolving workplace conditions." Specifically, appellants contend:

   The conflict between these two competing systems of employee-management relations is severe. One is administered generally by the Secretary of Personnel, the other by the Secretary of Labor. Apart from overlapping jurisdiction--which poses the obvious risk of inconsistent or even contradictory policies emanating from the respective systems and their administrators-- the whole tenor of employee relations will be dichotomized into two diverse pathways, one voluntary and participative, the other mandatory and adversarial.

   The State Personnel Management Reform Act provides for the "empowerment" of employees in each principal unit of government within[***24] the State Personnel Management System, through the establishment of employee/management [**107]teams, n12 § 3-102(a), which shall meet at least once monthly, § 3-106(a), publish minutes of the meetings, § 3-106(b), and report quarterly to the head of the relevant unit, § 3-106(c). Although the Secretary may waive the requirement for any principal department, § 3-103, each head of a principal unit is required to submit a plan by January 1 of each year identifying the number, and objectives, of employee/management teams established, § 3-102(b)(1), which the Secretary must evaluate "with regard to servicing the interests of the public and in fostering a system of participative management, § 3-102(b)(2)." The Act also mandates that each team establish goals and objectives reflective of the "overall mission of the principal unit," § 3-105(a), which must, however, include certain core objectives:
 
(1) to encourage new ideas;
 [*289]

(2) to seek the highest level of quality, productivity, and service;

(3) to develop open communications between management and employees; and

(4) to identify problems and propose resolutions.
 
Finally, there is prescribed[***25] a code of conduct for these management teams:
 
Members of the employee/management teams shall conduct themselves in a manner that fosters:

(1) a climate of openness and good faith;

(2) an atmosphere of mutual respect and trust:

(3) an environment safe from any fear of retaliation; and

(4) a spirit of stewardship for the well-being of the public served. § 3-104.

n12 Section 3-101(b) provides:
 
(b) Employee/management team. "Employee/management team" means a group established by the head of a principal unit, that is comprised of members of management and employees for the purpose of working together through open and candid discussions on issues of mutual interest. 

 
Our comprehensive review of the Act and comparison of it with the Executive Order, fails to reveal, and the appellants have failed to point to, any inconsistency, other than the difference between the employee/management teams and the exclusive representative for the[***26] bargaining unit, which would or could have the effect of preventing the two systems from coexisting. Certainly the goals and objectives of the teams are consistent with the purpose for which the Executive Order was promulgated; both the Act and the Executive Order envision a labor-management process with the goal of resolving employment-related disputes through open, candid, and good faith discussion between management and employees. Indeed, as the appellants concede, "the Order's scope and objectives are the same as those of the Personnel Reform Act. Both address the resolution of work rules, working conditions and employee benefits." And, they have not shown that the Legislature intended that the employee/management teams be the exclusive means of employee/management relations. n13 

n13 The appellants rely on the legislative history of the State Personnel Management Reform Act to support their argument that the Executive Order contravenes that Act. They note that, "in the very session in which it enacted [the Act], the General Assembly rejected the Governor's bills to adopt a collective bargaining scheme comparable to the one he imposed in the Order" and that "both the Senate Finance Committee and the full Senate also rejected gubernatorial and union-led efforts to graft collective bargaining into the very location in the personnel reform bill where the employee participation teams were eventually enacted." Moreover, the appellants point to "countless" ill-fated and unsuccessful attempts to enact collective bargaining legislation over the past 50 years as further evidence of the Legislature's clear opposition and intention to exclude it. We are not persuaded.

   First, the appellees astutely observe "if the Legislature's failure to act were determinative, as appellants contend, then this Court could infer from the General Assembly's failure to reverse legislatively the circuit court's January 29, 1997 decision that the Legislature agrees that the Executive Order is a lawful exercise of the Governor's authority." Furthermore and in any event, it is well settled that '"the fact that a bill on a specific subject fails of passage in the General Assembly is a rather weak reed upon which to lean in ascertaining legislative intent."' T.H.E. Insurance Co. v. P.T.P. Inc., 331 Md. 406, 422, 628 A.2d 223, 230-31 (1993)(quoting Automobile Trade Ass'n v. Insurance Comm'r, 292 Md. 15, 24, 437 A.2d 199, 203(1981)). To like effect, see, Local 598, Council 58 Am. Fed'n v. City of Huntington, 173 W. Va. 403, 317 S.E.2d 167, 168 (W. Va. 1984), in which the Supreme Court of West Virginia rejected the contention that "the legislature's continued unwillingness to adopt a proposal allowing collective bargaining agreements specifically indicates that the legislature did not intend to allow such a practice to develop." As the appellees accurately point out, this is especially so where, as here, the effect of such an interpretation is to deprive the Governor of his constitutional and statutory authority.

[***27] [*290]

   [**108] Although the employee/management teams of the Act and the bargaining units of the Executive Order overlap and may be duplicative, we conclude that the two mechanisms could co-exist. First, the Secretary may waive the establishment of employee/management teams. Second, the employee/management teams and the bargaining units could operate separately, whereby employees, who believe that their views are not adequately represented by the exclusive bargaining representative designated pursuant to the Executive Order, may address the same or different employment-related matters in the employee/management team meeting. Third, the two mechanisms could operate harmoniously. Since the employee/management teams are required to meet at least once each month and publish the minutes of all meetings, the bargaining units could take advantage of the ideas and discussion of the employee/management teams. Also, the "non-binding" nature [*291] of the periodic reports submitted to the head of the principal unit and the memorandum of understanding, see infra, would permit the Governor or the Governor's designated representative to consider ideas for recommendation to the Legislature. n14 

n14 Relying on two federal cases that are based on the National Labor Relations Act ("NLRA"), National Labor Relations Board v. Cabot Carbon Co., 360 U.S. 203, 79 S. Ct. 1015, 3 L. Ed. 2d 1175 (1959) and Electromation, Inc. v. National Labor Relations Board, 35 F.3d 1148 (7th Cir. 1994), appellants make the argument that the employee/management team mechanism in the Personnel Reform Act conflicts with the bargaining units in the Executive Order because employee/management teams are "controlled" by the employer. This argument lends no support to the appellants' case, as section 8(a) of the NLRA provides that: "It shall be an unfair labor practice for an employer . . .to dominate or interfere with the formation or administration of any labor organization." Thus, the NLRA specifically forbids the use of an employer-dominated committee within a collective bargaining scheme. There is no similar statutory provision in Maryland law.

[***28]

   (c)

   The appellants argue that the Executive Order is illegal because it establishes a system structured to culminate in "binding" collective bargaining agreements establishing wages, hours, pension rights, or working conditions, and, as such, "absent express legislative authority," should not have been issued. They posit that the Order contains ten characteristics consistent with those found in admittedly binding collective bargaining agreements, namely, (1) exclusive union representation; (2) mandatory good faith negotiations over wages, hours and working conditions, and mandatory reduction of any negotiated agreement to writing; (3) limited rights of employee grievants; (4) authorization of payroll deductions of union dues; (5) prohibition of strikes and other work stoppages; (6) an impasse resolution procedure; (7) the public employer's final authority over execution of a collective bargaining agreement; (8) legislative oversight of fiscal terms; (9) the executed agreement as a "binding" bar against rival union representation elections during the negotiated agreement term; and (10) the public employer's power to rescind the entire collective bargaining system at will. [*292]

   We considered[***29] early in this opinion the guiding principle underlying the rule that legislative authority is necessary as a condition precedent to a public agency entering into binding arbitration or a binding collective bargaining agreement - "to insure that a governmental agency does not, without authority, abdicate, or bargain away its statutory discretion." Montgomery County Educ. Ass'n, 311 Md. at 313, 534 A.2d at 984-85. We also set out in some detail the Executive Order to test the appellees' premise that "a plain reading of its provisions refutes appellants' claim that the Order creates a binding collective bargaining mechanism that cannot survive absent legislative authorization." Review of the Order in light of the rule's purpose confirms the correctness of the appellees' assessment. None of the provisions of the Executive Order, not one, makes or purports to make any agreement reached through the collective bargaining process [**109] conducted by subordinate administrative officials legally binding or to divest the Governor, the General Assembly or other public officer of discretion given them by law. And, of course, the appellees are also correct when they point out, referencing the ten factors[***30] identified by the appellants as indicative of binding collective bargaining, that "none of those factors, either singularly or collectively, causes State officials to 'bind themselves to exercise. . . discretionary legislative powers ... or agree to delegate such powers to binding arbitration. . . ." (quoting MCEA, 281 Md. 496, 508, 380 A.2d 1032, 1039).

   The fifth "Whereas" clause expresses the Executive Order's intent that the ability of agency heads to reach shared understandings with employees be maximized; however, it contains the proviso, "within the confines of existing law." Similarly the mediation unit is given powers to implement the Order, but, again it is conditioned on its exercise being permitted by law. P D. The appellants focus on paragraph E (1) as evidencing that the Order is binding, noting, in particular, that the paragraph contemplates, indeed as does the Order as a whole, that, at the culmination of the good faith negotiations following the certification process, a memorandum of understanding incorporating the parties' agreements is to be executed. That [*293] may be, but, as the appellees counter, there is nothing in that paragraph or in the entire Order, for that matter, [***31] that addresses how disputes concerning the memorandum are to be resolved. The Order certainly does not provide for binding arbitration or any other form of binding dispute resolution mechanism, which is the norm in binding collective bargaining agreements. See, e.g., Anne Arundel Co., 313 Md. at 101, 543 A.2d at 843 ("Under § 4-107(e), 'whenever the [County] Personnel Officer and the petitioning employee organization are in disagreement as to the determination . . ., the issue shall be submitted to arbitration at the request of either party.' According to § 4-107(e)(2), the decision of the arbitrator 'shall be final and binding on the parties."'); MTA, 295 Md. at 95, 453 A.2d at 1194-95 ("Section 7-602(b) of the Transportation Article provides for arbitration of labor disputes between the MTA 'and any employees described in § 7-601' if collective bargaining fails to produce an agreement."); MCEA, 281 Md. at 498, 380 A.2d at 1033. This is in contrast to the manner in which disputes between competing employee organizations are to be handled: they are permitted to agree voluntarily and at their own expense to resolve election disputes using "an impartial third[***32] party arbitrator selected in accordance with such agreement, and the decision or decisions of such arbitrator shall be final and binding on such organizations." In short, the circuit court was right when it observed, "if the State fails to negotiate in 'good faith' the State employee unions have no identifiable remedy. In fact, the Executive Order lacks any provision which would require the State to submit or abide by arbitration, impasse resolution, or mediation." n15 

n15 Nor should the appellants take comfort in the State Mediation Service policy, upon which it relies. That policy simply does not provide for the binding resolution of disputes, as indeed it could not since its promulgator has no such authority. See Md. Code ( 1957, 1991 Repl. Vol.) §§ 4-101-4-111 of the Labor & Employment Article. Contrast the powers of the Mediation Service and the policy it developed with House Bill 350, introduced in the 1996 session of the General Assembly, but failed of passage. Under that Bill, there would have been created a State Labor Relations Board, which, after reviewing a fact-finding panel's recommendations, could "issue an order directing the parties to comply with each recommendation of the panel...."

[***33] [*294]

   There is another fail safe mechanism in paragraph E(1). Even if the Governor approves an agreement and signs a memorandum of understanding, to the extent that it requires legislative approval or the appropriation of funds, it still is not binding. That is precisely the reason for the provision calling for recommendations to the Legislature for approval and for the appropriation of funds where required. Furthermore, the Governor has exempted the State from negotiating on subjects that would be inconsistent with existing law. Paragraph O(3) is yet another of the provisions that cut against the Order being characterized as a binding collective bargaining agreement. Under that paragraph, a bargaining representative is entitled to meet with and negotiate with the Governor or his [**110] designee on wages, hours, and working conditions; however, any agreement that may be reached is still "subject to the approval of the Governor." And, as the circuit court opined, "a State employee union would be afforded no legal recourse if the governor failed to approve an agreement." That is also one of the lesson of Freeman v. Local 1802, AFSCME 67, 318 Md. 684, 695, 569 A.2d 1244, 1249 (1990)("Until [the[***34] County Executive] signs an agreement, he retains the discretion to reject it, and mandamus will not lie to compel him to perform a discretionary duty"). Moreover, the Governor has retained the right to revoke the Order at any time. P R. Finally, paragraph S makes clear that nothing in the Order trumps or otherwise adversely affects the Governor's constitutional and statutory rights, responsibilities, powers or duties.

   Viewed in its entirety, but with particular emphasis on the Governor's completely discretionary power to either approve or refuse to approve an agreement negotiated pursuant to the terms of the Executive Order, it follows that the Governor, by promulgating the Order, has neither abdicated nor bargained away any statutory or gubernatorial authority. Rather, it is [*295]an appropriate exercise of his constitutional and statutory oversight of the Executive Branch work force.

   JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AFFIRMED, WITH COSTS TO BE PAID BY THE APPELLANTS. 

                       
CITY OF ANNAPOLIS v. ANNE ARUNDEL COUNTY, MARYLAND 
No. 84, September Term, 1995
 
COURT OF APPEALS OF MARYLAND
 
347 Md. 1; 698 A.2d 523; 1997 Md. LEXIS 132

 August  25, 1997, Filed

   SUBSEQUENT HISTORY: [***1] As Corrected August 28, 1997.

PRIOR HISTORY: Appeal from the Circuit Court for  Anne Arundel  County pursuant to certiorari to the Court of Special Appeals. Bruce C. Williams, JUDGE.

DISPOSITION: JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AFFIRMED. PETITIONER TO PAY COSTS.

CORE TERMS:  charter, appropriation, charter counties, repeal, laches, tobacco, repealed, Express Powers Act, local law, budget, home rule, tax revenue, political subdivision, tax revenues, election districts, general fund, distributed, regulating, budgetary, remit, taxing authority, authorize, county council, appropriated, collected, allocated, sidewalks, allocate, enact, powers granted

COUNSEL: ARGUED BY David M. Funk (Richard T. Colaresi, Steven J. Troy, Shapiro and Olander, on brief) of Annapolis, MD.
 
ARGUED BY Paul Garvey Goetzke, City Attorney, of Annapolis, MD, FOR PETITIONER.
 
ARGUED BY David A. Plymyer, Deputy County Attorney (Phillip F. Scheibe, County Attorney, on brief) of Annapolis, MD, FOR RESPONDENT.

JUDGES: ARGUED BEFORE * Murphy, C.J.; Eldridge, Rodowsky, Chasanow, Karwacki, Bell, and Raker, JJ. Opinion by Eldridge, J.

* Murphy, C.J., now retired, participated in the hearing and conference of this case while an active member of this Court; after being recalled pursuant to the Constitution, Article IV, Section 3A, he also participated in the decision and the adoption of this opinion.

[***2]

OPINIONBY: Eldridge

 OPINION: [*2]
 
[**523] Opinion by Eldridge, J.
 
Filed: August 25, 1997

   The dispositive issue in this case is whether, between 1970 and 1992, Anne Arundel County unlawfully withheld state tobacco tax revenue from the City of Annapolis. Resolution of this question turns on the continuing viability of a public local law enacted by the General Assembly, Ch. 1041 of the Acts of 1945, after Anne Arundel County in 1964 adopted a home rule [*3] charter pursuant to Article XI-A of the Maryland Constitution.

   I.

   In 1945 the General Assembly enacted Ch. 1041 which added a new § 408A to Article 2 of the Code of Public Local Laws of Maryland (1930), title "Anne Arundel County." Section 408A provided that, whenever a new source of State revenue should be allocated to Anne Arundel County, unless the statute [**524]making the allocation specified a different division, the County should remit 1/7 of the new revenue to the City of Annapolis for whatever use the City decided, and the County should place the remaining 6/7 in "the road funds" of the other six election districts in proportion to the assessable basis of each of the six election districts. n1

n1 New § 408A of Article 2 of the Code of Public Local Laws, as enacted by Ch. 1041 of the Acts of 1945, provided in its entirety as follows:

   "408A. Whenever any portion of any new State revenue as hereinafter defined shall be allocated to Anne Arundel County, unless the statute making the allocation shall specify a different division or use of the same, the said County shall remit one-seventh thereof to the City of Annapolis for such uses as may be decided by the Mayor, Counselor and Aldermen of said City. The remaining six-sevenths shall be placed in the road funds of the other election districts of said County excluding the Sixth Election District, and shall be divided among said other election districts in proportion to the assessable basis of each of said other election districts. This Section shall apply only to allocations of State revenues from new sources originated by any of the Acts of 1945 or any subsequent regular or special session of the General Assembly of Maryland; and shall not apply to any of such allocations now being received by said County under laws heretofore enacted prior to the 1945 Session, nor to future allocations from present sources of State revenues originated prior to the 1945 Session."

[***3]

   By Ch. 1 of the Acts of 1958, the General Assembly enacted a new "State Tobacco Tax Act" which, in addition to any other taxes on cigarettes, imposed a tax "on all cigarettes used, possessed or held" by any person for sale or use in Maryland. Three years later, the General Assembly enacted Ch. 321 of the Acts of 1961, codified in Maryland Code (1957, 1961 [*4] Supp.), Art. 81, § 460(a)(4), which distributed a portion of the tobacco tax revenue collected under the 1958 State Tobacco Tax Act to the counties and to the City of Baltimore. The 1961 statute specified that the distributed revenue was "to be credited into the general funds of each such political subdivision." n2

n2 Article 81, § 460(a)(4), was recodified without substantial change as Maryland Code (1978, 1988 Repl. Vol.), § 2-1605 of the Tax-General Article. Article 81, § 460(a)(4), provided, in pertinent part, as follows:
 
" § 460. Payment of proceeds into special fund; disbursements; local tax prohibited. 

    * * *

   "(4) After the distributions provided for [above], the remainder shall be paid and distributed quarterly to each county and to the City of Baltimore, to be credited into the general funds of each such political subdivision. The amount to be paid to each political subdivision shall be a prorata share of the remainder, in the same ratio from time to time as the population of the political subdivision is to the population of the State. In no event, however, shall a political subdivision be paid under this distribution for any State fiscal year a sum of money less than that political subdivision received during the calendar year of 1960 as the net collection, after the deduction of administrative and collection expenses, from a cigarette tax then imposed and collected by that political subdivision."

[***4]

   In accordance with Ch. 321 of the Acts of 1961, the State distributed $34,062,655.77 of tobacco tax revenue to Anne Arundel County from 1961 until 1992. n3 Between 1961 and 1969, the County remitted 1/7 of its allotted portion of tobacco tax revenue to the City of Annapolis.

n3 Section 2-1605 of the Tax-General Article, formerly Art. 81, § 460(a)(4), first enacted by Ch. 321 of the Acts of 1961, was repealed by Ch. 1 of the Acts of the First Special Session 1992.

   In 1964, Anne Arundel County adopted a home rule charter pursuant to Article XI-A of the Maryland Constitution. Section 718 of the Anne Arundel County Charter created a budgetary scheme which replaced the prior county district road system. Among other things, § 718 abolished the prior special district road taxes and district road funds and created a "general fund" into which most new revenue would be [*5] placed. n4

 n4 As originally enacted as part of the Charter, § 718 provided, in pertinent part, as follows:
 
"Section 718. COMPOSITION AND LIMITATION UPON COUNTY FUNDS AND LEVIES; SPECIAL TAXES; BOND OBLIGATION. For the fiscal and tax year beginning July 1, 1965 and thereafter the following provisions shall provisions shall apply:

   "(a) SPECIAL FUNDS; REVENUE AND RECEIPTS; APPROPRIA TIONS. All revenues and receipts from utility assessments; from special services or benefit charges; from special taxes or assessments imposed upon special taxing areas for special or particular services, purposes or benefits; from funds held by the County as trustee or agent; or from bond proceeds, shall be paid into and appropriated from special funds created therefor.

   "(b) GENERAL REVENUE AND RECEIPTS; APPROPRIATIONS. All other revenues and receipts of the County from taxes, grants, State revenues and other receipts shall be paid into and appropriated from the general fund which shall be the primary fund for the financing of current expenses for the conduct of County business. A tax imposed upon all assessable property or class of property in the County which exempts assessable property in an incorporated municipality subject to the provisions of Article XI-E of the State Constitution shall not be deemed or construed to be a 'special tax' for the purposes of this section and all receipts from such tax shall be paid into and appropriated from the general fund.

    * * *

   "(d) LEVY FOR ROADS. No tax for the purpose of raising revenues for the construction and maintenance of public roads shall be levied upon any assessable property in the County except on a Countywide basis, exclusive of incorporated municipalities subject to the provisions of Article XI-E of the State Constitution which operate and maintain their own road or street system."

   In a memorandum entitled "Notes to the Proposed Home Rule Charter of Anne Arundel County," counsel to the Anne Arundel County Charter Board concluded that "subsection (b) of 718 repeals [Ch. 1041] because of the obvious inconsistency."

[***5]

   [**525] On October 29, 1965, the County Council of Anne Arundel County passed and the County Executive signed Bill No. 85, which expressly repealed several sections of Article 2 of the Code of Public Local Laws, Anne Arundel County, including Ch. 1041. In addition, Bill No. 85 codified the abandonment by the County of any dedication of funds to road maintenance and repairs, and created a new mechanism under which the County Council assumed full control over the County's highways, roads, sidewalks, alleys, bridges, drains and streets. Despite the repeal of Ch. 1041, however, the County continued [*6] until 1969 to remit 1/7 of the State tobacco tax revenue which it received to the City of Annapolis. n5

n5 It is not entirely clear from the record why the County continued to remit 1/7 of the tobacco taxes to the City between 1965 and 1969. In its brief and at oral argument, the County explained that during this period, Anne Arundel County was implementing a "property tax rate 'differential' for property owners" in the City of Annapolis who would be taxed at a lower rate "for services provided by the City which otherwise would be provided by the County." At the same time, the County was planning to eliminate the 1/7 remittance to the City. The County maintains that "the fact that the property tax rate differential was 'phased in' just prior to the time that payments to the City of tobacco tax revenues were being 'phased out' was not a product of chance."

[***6]

   In 1994, in response to an inquiry from a member of the General Assembly, the Office of the Maryland Attorney General issued a memorandum which concluded that Anne Arundel County's attempted repeal of Ch. 1041 was invalid. n6

n6 Assistant Attorney General Richard E. Israel, who signed the memorandum, adopted the position that, "although Anne Arundel County became a charter home rule county in 1965 and repealed the remittance requirement later that year, it is my view that the county lacked the authority to repeal this provision of law." He reasoned, in pertinent part, as follows:

   "In 1965, as at the present time, the Express Powers Act conferred on the charter counties broad power to enact ordinances concerning their roads and sidewalks. [Citations omitted]. However, this Act has never conferred on such counties any general revenue raising power. [Citations omitted]. Moreover, this Act, as it existed in 1965 and as it exists today, contains no provision which can reasonably be construed to give the charter counties the power to enact local laws repealing State laws providing for the distribution of new State revenue in a particular county.

   "Because the State law on distributing new State revenue in Anne Arundel County was codified in a chapter on roads, streets and sidewalks in the 1957 Anne Arundel County Code, it may be that the County Council thought it was acting under its broad power over roads and sidewalks. However, as this State law concerned the distribution of State revenue and there is no provision of the Express Powers Act which can be construed to authorize the County to repeal this law, the 1965 ordinance was without legal effect to the extent that it purported to repeal this law."

[***7]

   On December 1, 1994, the City of Annapolis commenced the present action by filing in the Circuit Court for Anne Arundel County a complaint for a writ of mandamus against the [*7] County. The City alleged that the County failed to remit to the City 1/7 of the state tobacco tax revenue that it received between 1970 and 1992. In its complaint, the City requested "that a Writ of Mandamus be issued by this Court commanding that Anne Arundel County, Maryland pay over to the City of Annapolis the amount of $9,242,402.14," consisting of unremitted State tobacco [**526] tax revenues in the amount of $3,938,733.14 and interest, at the rate of 6%, in the amount of $5,303,669.00. In response, the County filed a motion to dismiss, raising several grounds as to why the action would not properly lie. The County did not, however, raise the defenses of limitations or laches.

   Thereafter, the Circuit Court for Anne Arundel County dismissed the City's complaint on the ground of laches, even though the County had not raised that defense. n7 The circuit court stated that, because the City had "slept upon its rights," laches "serves as a defense to this action." The court reasoned that "twenty-five (25) years have[***8] passed since the time this action arose" and that "a writ of mandamus would cause grave economic hardship to the County . . . ." Although it discussed the question of whether the County properly exercised its home rule powers when it repealed Ch. 1041, the circuit court did not resolve this matter. The City of Annapolis filed a timely notice of appeal. Prior to briefing and argument in the Court of Special Appeals, the City filed in this Court a petition for a writ of certiorari which we granted. City of Annapolis v. Anne Arundel County, 339 Md. 739, 664 A.2d 935 (1995).

n7 This Court has held that a circuit court may, in an action for mandamus, "refuse to grant relief to a complainant, who . . . appears to have been guilty of laches, although that defense was not interposed by the defendant." Ipes v. Board of Fire Commissioners, 224 Md. 180, 183-184, 167 A.2d 337, 339 (1961).

   II.

   The City argues that the circuit court's dismissal on the ground of laches was erroneous for several reasons. Specifically, [***9] [*8] the City maintains that (1) the defenses of laches or limitations are inapplicable under the circumstances of the case, n8 (2) assuming that the defenses of laches or limitations are applicable, the twelve-year statute of limitations for specialties applies, n9 and (3) the circuit court improperly raised the issue of laches sua sponte without an adequate factual basis upon which to dismiss the City's complaint. n10

n8 The City contends that the defenses of laches or limitations are not applicable "when the plaintiff is a governmental entity asserting an action that arises from the exercise of a governmental function." According to the City, collecting and distributing tax revenues constitutes a "govern-mental function" that is no less applicable when one governmental agency asserts a claim against another. The City states that the collection and receipt of tax revenues to increase "the City's general fund is solely for the public benefit and common good of all the residents of Annapolis, with no 'profit' inuring to the City." 

n9 Relying on Mattare v. Cunningham, 148 Md. 309, 129 A. 654 (1925), the City argues that the 12 year statute of limitations for specialties under Code (1974, 1995 Repl. Vol.), § 5-102(6) of the Courts and Judicial Proceedings Article, applies when a statute creates an affirmative duty or obligation. According to the City, Chapter 1041 creates an affirmative duty "on the County to remit to the City one-seventh of the State tobacco taxes allocated to the County. . . ."

[***10] 

n10 In the City's view,
 
"it is premature to dismiss the complaint on the ground[] of laches without exploring the factual issues underlying the accrual of the cause of action, i.e. , when the City discovered the wrong advice; whether the delay was unreason able; what prejudice the County can prove; and how the applicable period of limitations, if any, affects the nature of any theoretical prejudice suffered by the defendant."

   On the merits, the City argues that the County's attempted repeal of Ch. 1041 exceeded the County's home rule authority under Article XI-A of the Constitution and the Express Powers Act, Code (1957, 1996 Repl. Vol.), Art. 25A. Characterizing Ch. 1041 as "an act of the General Assembly exercising its plenary taxing authority[]" (City's brief at 16), the City states "that the Express Powers Act has never provided to chartered counties a general taxing power" (id. at 13), citing Eastern Diversified v. Montgomery County, 319 Md. 45, 50, 570 A.2d 850, 852 (1990). The City insists that, because Ch. 1041 is a statute exercising "taxing authority," Anne Arundel[***11] [*9] County had no authority to repeal such a local tax statute enacted by the General Assembly. The City claims that it is entitled to 1/7 of the state tobacco tax revenue received by the County between 1970 and 1992.

   The County, on the other hand, argues that the circuit court properly dismissed the City's complaint on the ground of laches. The County contends that, if the pleadings [**527] show both lapse of time and prejudice, an action for mandamus can be dismissed sua sponte on the ground of laches. According to the County, both of these factors were shown by the pleadings in this case. The County further argues that laches applies where, as in this case, two political subdivisions are engaging "in a tug-of-war over the proceeds from a particular excise tax . . . ." (County's brief at 38). Finally, the County asserts that the twelve-year statute of limitations for specialties has no application in "a suit . . . arising from the duty . . . to refund tax payments . . . ."

    The County also rejects the City's position on the merits. The County characterizes Ch. 1041 as a "budgetary" law within the purview of charter government, and argues that it had the power under Article XI-A of the Maryland [***12]Constitution to repeal such a local budgetary provision. Alternatively, the County argues that, even if it lacked authority to repeal Ch. 1041 of the Acts of 1945, the 1945 statute did not require that 1/7 of the state tobacco tax revenue be given to the City. The County points out that Ch. 1041 was applicable only when a state statute did not "specify a different division." The County contends that Ch. 321 of the Acts of 1961, distributing some of the state tobacco tax revenues to the counties, did "specify a different division" by providing that the money should be "credited into the general funds" of the counties.

   III.

   For the reasons set forth below, we agree with the County that Ch. 1041 of the Acts of 1945 was lawfully repealed. In light of our resolution of this issue, we need not and do not reach the circuit court's holding or the parties' arguments [*10] regarding laches and limitations. n11 We also do not reach the County's alternative statutory interpretation argument.

n11 Although the circuit court did not decide whether Ch. 1041 was validly repealed, the County, "as appellee, is entitled to seek an affirmance of the circuit court's . . . decision on any ground adequately shown by the record," Insurance Commissioner v. Equitable Life Assurance Society, 339 Md. 596, 612 n.8, 664 A.2d 862, 870 n.8 (1995), and cases there cited. See also Jenkins v. Karlton, 329 Md. 510, 530, 620 A.2d 894, 904 (1993). Moreover, both the City and County before this Court have treated the validity of the county's repeal of Ch. 1041 as the principal issue in the case.

[***13]

   A.

   Under the explicit language of Art. XI-A, § 3, of the Maryland Constitution, a chartered county has "the power to repeal or amend local laws of said . . . County enacted by the General Assembly, upon all matters covered by the express powers granted" to that county. See, e.g., Ritchmount Partnership v. Board, 283 Md. 48, 57, 388 A.2d 523, 529-530 (1978). It is undisputed that Ch. 1041 of the Acts of 1945 was a local law, applicable only to Anne Arundel County.

   The City correctly argues that the Express Powers Act, Code (1957, 1996 Repl. Vol.), Art. 25A, which is the principal enactment setting forth the powers of chartered counties, does not grant a general taxing authority to the counties, and, with regard to the imposition of taxes, expressly grants only the authority to impose property taxes. Art. 25A, § 5(0). See, e.g., Eastern Diversified v. Montgomery County, supra, 319 Md. at 50, 570 A.2d at 852; Mont. Co. Bd. of Realtors v. Mont. Co., 287 Md. 101, 106-107, 411 A.2d 97, 100 (1980); Mont. Co. v. Md. Soft Drink Ass'n, 281 Md. 116, 128-130, 377 A.2d 486, 493 (1977). See also Controller v. Pleasure Cove, 334 Md. 450, 463-464, 639 A.2d 685, 692 (1994).[***14] Moreover, the General Assembly has not in any other statute granted broad general taxing power to Anne Arundel County. Cf. Waters Landing L.P. v. Montgomery County, 337 Md. 15, 19, 650 A.2d 712, 713 (1994); Mont. Co. v. Md. Soft Drink Ass'n, supra, 281 Md. at 129-131, 377 A.2d at 493-494.

   [*11] The next part of the City's argument, however, cannot be sustained. Ch. 1041 was not a tax statute or a revenue raising statute or "an act of the General Assembly exercising its plenary taxing authority" (City's brief at 16). Ch. 1041 neither imposed nor authorized any tax or fee whatsoever. Not a penny came to the state or county governments as a result of Ch. 1041.

   [**528] The tax statute pertinent to this controversy was Ch. 1 of the Acts of 1958, imposing a tax on cigarettes held for sale. A portion of the revenue from this tax was distributed to the counties in accordance with former § 2-1605 of the Tax General Article, to be budgeted or appropriated by each county in accordance with the law regulating appropriations in each county. Anne Arundel County at no time attempted to repeal or amend Ch. 1 of the Acts of 1958 or former § 2-1605 of the Tax General Article.

   Ch. 1041 of the Acts of 1945 was a local[***15] law regulating Anne Arundel County's appropriations of new state revenue which the County might receive, when the state law allocating the new state revenue was silent regarding the matter. Ch. 1041 was simply a local law regulating appropriations; it was plainly not a tax law.

   The City of Annapolis contends, however, that a charter county's lack of authority under the Express Powers Act, Code (1957, 1996 Repl. Vol.), Art. 25A, to impose taxes other than property taxes, encompasses the appropriation of all revenues other than property tax revenues. The City would extend the principle that most charter counties do not have general taxing authority to include general appropriation authority. The crux of the City's argument is as follows (City's brief at 14-15):

   "The sovereign entity possessing the power to levy taxes on a particular subject has implicit authority to allocate and distribute for the common good the tax revenues collected. Such authority to apportion is necessarily incidental to the taxing power itself. It follows that because the General Assembly has the exclusive authority to levy and collect [*12] general taxes, it also has the exclusive authority to allocate general tax[***16] revenues such as those collected pursuant to Chapter 1041.

   "Similarly, Anne Arundel County possessed in 1965 the authority to allocate the property taxes collected under the provisions of Section 5(0) of the Express Powers Act. . . . It did not, however, have the authority to allocate general tax revenues . . . ."

   The City's theory wholly fails to distinguish between tax laws on the one hand and appropriation laws or laws regulating appropriations on the other. Furthermore, it overlooks our cases holding that counties are authorized generally to appropriate revenues for county governmental purposes.

   While in some circumstances a constitutional or other legal restriction with regard to tax laws may also be applied to appropriation laws and vice versa, and while tax provisions and appropriation provisions are sometimes contained in the same statute, nevertheless a tax law and an appropriation law are not the same. One raises revenue and the other authorizes the disbursement of funds. See generally, e.g., Baltimore County C.A.U.T. v. Baltimore County, 321 Md. 184, 582 A.2d 510 (1990); Kelly v. Marylanders For Sports Sanity, 310 Md. 437, 530 A.2d 245 (1987); Bayne v. Secretary [***17]  of State, 283 Md. 560, 569-570, 392 A.2d 67, 72 (1978); Panitz v. Comptroller, 247 Md. 501, 232 A.2d 891 (1967); McKeldin v. Steedman, 203 Md. 89, 98 A.2d 561 (1953); Dorsey v. Petrott, 178 Md. 230, 13 A.2d 630 (1940). The Maryland Constitution itself draws a distinction between tax laws and appropriation laws, although in certain instances it requires that an appropriation law also contain a tax provision. See, e.g., Article III, §§ 32, 34, 51 and 52.

   The Express Powers Act, Code (1957, 1996 Repl. Vol.), Art. 25A, also reflects a clear difference between tax laws and [*13] appropriation laws. Section 5(0) of the Act expressly authorizes charter counties to impose property taxes, but the Act does not authorize other types of taxes. No similar distinction is made or implied in the statute between different types of appropriation laws. The principle set forth in our previously cited cases, that under the Express Powers Act charter counties do not have authority generally to impose taxes, has never been applied to appropriation laws.

   Moreover, this Court in Schneider v. Lansdale, 191 Md. 317, 323, 327, 61 A.2d 671, 673, 675 (1948), held that "the making of budgets and[***18] the appropriation of money for county expenses, debt, service, etc." is a power traditionally belonging to all counties, including [**529] charter counties, and that the purpose of Article XI-A of the Constitution "was not to restrict county authorities in these duties long exercised by them." See also City of Bowie v. County Comm'rs., 258 Md. 454, 465, 267 A.2d 172, 178 (1970); Scull v. Montgomery Citizens, 249 Md. 271, 274, 239 A.2d 92, 93-94 (1968).

   Under the Express Powers Act and other laws, charter counties have a multitude of government functions to perform, virtually all of which require the expenditure of significant sums of money. If, as the City argues, charter counties did not have the authority to appropriate revenues other than property tax revenues, they would be seriously hampered in carrying out their functions. See, e.g., Co. Comm'rs v. Supervisors of Elec., 192 Md. 196, 211, 63 A.2d 735, 742 (1949) (charter counties "have implied authority to exercise all such powers as may be necessary or fairly implied in or incident to the enjoyment and exercise of their express powers"). The City's argument is inconsistent with logic as well as with this Court's prior opinions. [***19]

   B.

   Our rejection of the City's argument, however, does not answer the question of whether Anne Arundel County validly repealed Ch. 1041 of the Acts of 1945.

   As previously indicated, under Article XI-A, § 3, of the Maryland Constitution, a charter county's power to repeal a public local law of the county enacted by the General Assembly is limited to laws upon "matters covered by the express powers granted as above provided . . . ." The concomitant [*14]prohibition upon the General Assembly's authority to enact a public local law for a charter county, set forth in Article XI-A, § 4, of the Constitution, is similarly limited to a public local law "on any subject covered by the express powers granted as above provided."
 
   The general authority of charter counties to budget and appropriate funds is not expressly granted by the Express Powers Act or by any other enactment of the General Assembly. Under our cases, budget bills and appropriation laws by charter counties "are none of them 'legislation' as the word is used in [Article XI-A, § 3]." Schneider v. Lansdale, supra, 191 Md. at 328, 61 A.2d at 676. See Scull v. Montgomery Citizens, supra, 249 Md. at 274, 239 A.2d at 93-94. [***20]Instead of constituting an express power of charter counties to enact legislation, within the meaning of Article XI-A, §§ 3 and 4, the authority to budget and appropriate revenue is implicit in Article XI-A and is an inherent power of all Maryland counties. Schneider v. Lansdale, supra.

   Since the authority to enact budgets and appropriate funds is not an "express power" of charter counties within the meaning of Article XI-A, §§ 3 and 4, of the Constitution, it follows that charter counties are not authorized by § 3 to repeal local laws enacted by the General Assembly regulating appropriations, and that the General Assembly is not precluded by § 4 from enacting such a local law for a charter county. In fact, the General Assembly, subsequent to Anne Arundel County's adoption of a charter, has enacted local laws regulating the appropriation by Anne Arundel County of tax revenues authorized by the General Assembly. See, e.g., Ch. 494 of the Acts of 1977; Code (1957, 1996 Repl. Vol.), Art. 24, § 9-602(b).

   Nevertheless, § 3 of Article XI-A is not the sole source of authority for a charter county to repeal a public local law enacted by the General Assembly. Section 1 of Article[***21] XI-A provides that, upon the adoption of a home rule charter, "any public local laws inconsistent with the provisions of said charter . . . shall be thereby repealed." See Co. Com'rs v. Supervisors [*15]of Elec., supra, 192 Md. at 206, 63 A.2d at 739 ("All public local laws inconsistent with the Charter are repealed").

   Furthermore, § 1 of Article XI-A authorizes charter provisions concerning the organization and structure of the county government including the method or system for making governmental decisions. See Ritchmount Partnership v. Board, supra, 283 Md. at 58, 64, 388 A.2d at 530, 533 ("There are, however, certain powers implicit in Article XI-A . . . . These powers necessarily proceed from § 1 of the Home Rule Amendment and have as their object the initial organization and formation of charter government in [**530] the counties. * * * We hold therefore that Article XI-A, § 1 conferred upon the citizens of Anne Arundel County the right to reserve unto themselves by express charter provision the power to refer legislation enacted by the Anne Arundel County Council"). See also Bd. of Election Laws v. Talbot County, 316 Md. 332, 347-348, 558 A.2d 724, 731-732 (1989); [***22] Griffith v. Wakefield, 298 Md. 381, 385, 470 A.2d 345, 347 (1984); Cheeks v. Cedlair Corp., 287 Md. 595, 607-608, 415 A.2d 255, 261-262 (1980).

   This Court has taken the position that the method or system for budgeting and appropriating revenues set forth in a county's charter, including the executive budget system in effect in several counties, constitutes proper charter material under Article XI-A, § 1. The budgetary and appropriation system "is a fundamental aspect of the form and structure of" a home rule county's government. Board v. Smallwood, 327 Md. 220, 241, 608 A.2d 1222, 1232 (1992).

   Consequently, a public local budgetary law of a county, which is inconsistent with the basic budgetary and appropriation system set forth in a later home rule charter for that county, would, under Art. XI-A, § 1, be repealed by the adoption of the charter. A subsequent ordinance enacted by the county council expressly repealing the earlier public local law would simply constitute proper "housekeeping legislation," removing an obsolete and previously-repealed provision from the code.

   [*16] C.

   Ch. 1041 of the Acts of 1945 was inconsistent with the subsequently adopted charter of Anne[***23] Arundel County and thus was validly repealed by the charter. Ch. 1041 was not like other enactments by the General Assembly simply directing Anne Arundel County to appropriate specific revenues for certain purposes. n12 Instead, Ch. 1041 regulated appropriations of any future undesignated new state revenue in a manner totally inconsistent with the budget and appropriation system of the 1964 Anne Arundel County charter. Appropriations under Ch. 1041 were to be in accordance with the pre-charter division of the county into seven election districts, with the city of Annapolis being one of those districts and thus receiving 1/7 of the funds. Outside of Annapolis, the money was to be placed in the road funds of each other election district.

n12 Compare Code (1984, 1991 Repl. Vol., 1996 Supp.), § 2-404(c) of the Family Law Article, directing that Anne Arundel County apply the proceeds from a particular license fee "to promote or fund domestic violence programs;" Code (1957, 1996 Repl. Vol.), Art. 24, § 9-602(b), requiring that revenues from specified taxes collected by Anne Arundel County within the City of Annapolis "shall be allocated and distributed in equal amounts to the City of Annapolis and to Anne Arundel County."

[***24]

   As previously discussed, the charter abolished the election-district and road-fund method of appropriating revenue. Under § 718(b) of the charter, revenues "from taxes, grants, State revenues and other receipts" are to be paid into a general fund. Appropriations from the general fund are to be in accordance with the executive budget system mandated by the county charter.

   As the method of appropriating revenue received from the State under Ch. 1041 was inconsistent with the budget and appropriation system under the Anne Arundel County charter, Ch. 1041 was repealed by that charter. Thus, the City of Annapolis was not entitled to mandamus relief based upon Ch. 1041.
 
[*17] JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AFFIRMED. PETITIONER TO PAY COSTS. 

A & B Yachtsmen v. Jones 
Pet. Docket No. 185, September Term, 1997
 
COURT OF APPEALS OF MARYLAND
 
346 Md. 629; 697 A.2d 913; 1997 Md. LEXIS 314

 August  22, 1997, Decided

   PRIOR HISTORY: [*1] (No. C-96-28730, Circuit Court for  Anne Arundel  County).

OPINION: Petition for Writ of Certiorari denied. 

NATASHA RENKO v. TERESA KAYLOR McLEAN 
No. 77, September Term, 1996
 
COURT OF APPEALS OF MARYLAND
 
346 Md. 464; 697 A.2d 468; 1997 Md. LEXIS 111

 July  30, 1997, Filed

   PRIOR HISTORY: [***1] Appeal from the Circuit Court for  Anne Arundel  County pursuant to certiorari to the Court of Special Appeals. Eugene M. Lerner, JUDGE.

DISPOSITION: JUDGMENT AFFIRMED, WITH COSTS.

CORE TERMS:  parent-child, immunity, minor child, liability insurance, abrogation, parental, harmony, partner, Fourteenth Amendment, parental authority, immunity rule, injured child, partnership, equal protection, motor vehicle, business partner, age of majority, discipline, coverage, abrogate, automobile liability insurance, adult children, common law, classification, discord, lawsuit, insured, insurer, driver, automobile accident

COUNSEL: ARGUED BY Gerard P. Uehlinger of Towson, MD, FOR APPELLANT.
 
ARGUED BY Hugh W. Farrell of Columbia, MD, FOR APPELLEE.

JUDGES: ARGUED BEFORE Bell, C.J.; Eldridge, Rodowsky, Chasanow, Karwacki, Raker, and Wilner JJ. Opinion by Karwacki, J.

OPINIONBY: KARWACKI

OPINION: [*467]
 
[**469] Opinion by Karwacki, J.
 
Filed: July 30, 1997

   In Warren v. Warren, 336 Md. 618, 650 A.2d 252 (1994), and Frye v. Frye, 305 Md. 542, 505 A.2d 826 (1986), this Court declined to create an exception to the parent-child immunity doctrine in motor tort cases based upon the existence of compulsory automobile liability insurance coverage. We are asked in this case to reexamine those decisions. Having done so, we shall reaffirm the vitality of the parent child-immunity doctrine in this State and affirm the judgment of the Circuit Court for Anne Arundel County.

   I.
 
   The facts of this case are brief and undisputed. On December 8, 1992, Natasha Renko suffered serious injuries when her biological mother, Teresa Kaylor McLean, negligently drove[***2] the car both women were occupying into the rear of another vehicle. At the time, Natasha Renko was seventeen years old.

   On January 18, 1994, and following her eighteenth birthday, Renko filed a Complaint and Election of Jury Trial in the Circuit Court for Anne Arundel County seeking damages in the amount of $100,000 for injuries she allegedly sustained in the December 8, 1992 automobile accident. The Complaint named Teresa McLean and her husband, [**470] Robert McLean, n1 as defendants, n2 here appellees.

n1 Robert McLean is Natasha Renko's stepfather.

n2 The Complaint charged Teresa McLean with direct negligence as the operator of the motor vehicle in which Natasha Renko sustained her injuries. Robert McLean was named as a defendant under a theory of vicarious liability for engaging Teresa McLean as an agent or servant.

[*468]

   Both Teresa and Robert McLean filed Motions to Dismiss. Robert McLean subsequently filed an independent Motion for Summary Judgment. In a hearing on the motions, Renko beseeched the court to recognize[***3] an exception to the parent-child immunity doctrine and allow emancipated children to file actions against their parents for injuries sustained in motor vehicle accidents occurring in minority between fifteen and eighteen years of age. The court declined to do so and entered judgment in favor of the appellees.

   Renko appealed the judgment entered in favor of her mother to the Court of Special Appeals. n3 We issued a writ of certiorari before consideration by the intermediate appellate court of the issues presented in this appeal.

n3 Natasha Renko did not appeal the judgment entered in favor of her stepfather, Robert McLean.

   II.

   For nearly seventy years, the parent-child tort immunity doctrine has been, with few exceptions, n4 a salient feature of Maryland law. See Schneider v. Schneider, 160 Md. 18, 152 A. 498 (1930). n5 It remains so today.

 n4 We have departed from this rule on only two occasions. First, when a child has suffered cruel or unusually malicious conduct at the hands of a parent, an action for monetary damages may be maintained. Mahnke v. Moore, 197 Md. 61, 77 A.2d 923 (1951). Second, a child may sue a parent's business partner for negligence committed in the operation of the partnership. Hatzinicolas v. Protopapas, 314 Md. 340, 550 A.2d 947 (1988). The reasons for these departures are discussed more fully, in Part III a., infra.

[***4] 

n5 The first formulation of the parent-child immunity doctrine was adopted by the Supreme Court of Mississippi in Hewlett v. George, 68 Miss. 703, 9 So. 885 (1891). Mississippi has since repudiated the doctrine in motor tort cases. See Glaskox v. Glaskox, 614 So. 2d 906 (Miss. 1992).

   Once an absolute bar to tort actions between parents [*469] and their minor children, n6 the parent-child immunity doctrine grew out of an abiding belief that it served the compelling public interest in preserving, under normal circumstances, the internal harmony and integrity of the family unit and parental authority in the parent-child relationship. Warren v. Warren, 336 Md. 618, 622, 650 A.2d 252, 254; Smith v. Gross, 319 Md. 138, 145-46, 571 A.2d 1219, 1222 (1990); Frye, 305 Md. at 548, 505 A.2d at 829-30; Yost v. Yost, 172 Md. 128, 134, 190 A. 753, 756 (1937); Schneider, 160 Md. at 21-22, 152 A. at 499-500. In fact, the special relationship, with its reciprocal duties and obligations, that the minor child shares with his or her parents forms a major component of the foundation upon which[***5] the parent-child immunity doctrine is built -- a relationship recognized both at common law n7 and by the General Assembly. n8 Other justifications offered for the rule [**471] include the prevention of fraud and collusion among family members to the detriment of third-parties, and the threat that intrafamilial litigation will deplete family resources. See Warren, 336 Md. at 625, 650 A.2d at 255.

n6 The immunity does not apply to tort actions between parents and their adult children arising beyond minority . Waltzinger v. Birsner, 212 Md. 107, 125-26, 128 A.2d 617, 627 (1957).

n7 See, e.g., Greenwood v. Greenwood, 28 Md. 369, 381 (1868)(father entitled to earnings of minor child); Lucas v. Maryland Drydock, 182 Md. 54, 58-60, 31 A.2d 637, 639 (1943)(parents possess right to discipline children for the benefit of their education); Mahnke, 197 Md. at 64, 77 A.2d at 924 (minor childrens' rights inferior to parental rights so that latter can effectively discharge their parental obligations); Rand v. Rand, 280 Md. 508, 510-11, 374 A.2d 900, 902 (1977)(duty of support entitles father to child's earnings and services); Sininger v. Sininger, 300 Md. 604, 611, 479 A.2d 1354, 1358 (1984)(parents have duty to support adult incapacitated child); 2 WILLIAM BLACKSTONE, COMMENTARIES, CH. 16, OF PARENT AND CHILD.

[***6] 

n8 Indeed, Maryland Code (1984, 1991 Repl. Vol., 1996 Supp.), § 5-203(b)(1) of the Family Law Article obligates parents to provide for the "support, care, nurture, welfare, and education of their children," and §§ 10-203 and 10-209 of that same Article provide for civil and/or criminal penalties upon a failure to do so. See also §§ 10-301, et seq. (Uniform Reciprocal Enforcement of Support Act). In that regard, the preservation of the family is, and has always been, a primary objective of Maryland law. See § 4-401 of the Family Law Article.

[*470]

   Nevertheless, the parent-child immunity doctrine has never stood static where historical experience and common sense dictated that it must yield. Indeed,
 
"the parent[-]child immunity rule . . . was a creature of the common law. It was judicially conceived, judicially adopted in Maryland, judicially changed in certain significant aspects, and otherwise judicially nurtured and applied in this jurisdiction[.]"
 
Frye, 305 Md. at 566, 505 A.2d at 839; see also n.4, supra. But our acknowledgment that circumstance sometimes[***7] severs the doctrine from its rationale and reason in no way detracts from our fundamental belief that "the parent-child immunity rule [is still] essential to the maintenance of discipline and to the stability of family harmony." Frye, 305 Md. at 561, 505 A.2d at 836; see also Warren, 336 Md. at 622-24, 650 A.2d at 254-55.

   In Frye, supra, we exhaustively surveyed the creation and refinement of the parent-child immunity doctrine both in this State and across our Country. Despite the growing chorus of criticism surrounding the doctrine, n9 we determined that the parent-child relationship had changed little, if at all, in the ensuing years since our predecessors first recognized parent-child immunity. We thus concluded that "today's parent-child relationship, as recognized by this Court and the Legislature, furnishes no compelling reason to abrogate the rule." Id. at 561, 505 A.2d at 836; see also Warren, 336 Md. at 627-28, 650 A.2d at 256-57.

n9 See, e.g., Pipino, In Whose Best Interest? Exploring the Continuing Validity of the Parent Child Immunity Doctrine?, 3 Ohio St. L.J. 1111 (1992); W. Prosser & W.P. Keeton, The Law of Torts § 122 (5th ed. 1984); Comment, Parent-Child Tort Immunity: Time for Maryland to Abrogate an Anachronism, 11 U.Balt. L. Rev. 435 (1982); Hollister, Parent-Child Immunity: A Doctrine in Search of Justification, 50 Fordham L. Rev. 489 (1982); Comment, The Demise of Parent-Child Immunity, 12 Willamette L. J. 605 (1976); Comment, Time to Abolish Parent-Child Tort Immunity: A Call to Repudiate Mississippi's Gift to the American Family, 4 Nova L.J. 25 (1980); McCurdy, Torts Between Parent and Child, 5 Vill. L. Rev. 521 (1960); McCurdy, Torts Between Persons in Domestic Relation, 43 Harv. L. R. 1030, 1077-1081 (1930).

[***8] [*471]

   III.

   Renko nonetheless mounts a three-pronged attack upon the parent-child immunity doctrine. She asserts that (1) adult children should be allowed to maintain actions against their parents for injuries occurring in their minority; (2) no contemporary justification exists to apply the doctrine to the facts of the case sub judice in light of compulsory motor vehicle liability insurance; and (3) any such application is violative of Articles 19 and 24 of the Maryland Declaration of Rights and of the Fourteenth Amendment to the United States Constitution. We shall address each of these contentions in turn.

   a.

   Renko correctly points out that we have permitted suits between parents and their minor children in limited circumstances.
 
For instance, we have held that a minor child may maintain an action against a father's business partner for alleged negligence arising out of the operation of the partnership. Hatzinicolas v. Protopapas, 314 Md. 340, 550 A.2d 947 (1988). That decision was predicated upon our belief that the parent-child relationship, so important to the parent-child immunity rule, would remain inviolate in a suit against the father's business partner. Id.[***9] at 357, 550 A.2d at 947.

   We further observed that (1) assuming the existence of a business liability insurance policy, the father had already paid his share of liability through his contribution to policy premium payments; or (2) it would otherwise be unrealistic to assume that the father did not take his partnership contribution obligation n10 [**472] into account when the familial decision was made to initiate a suit against his partner; and (3) although [*472] the ultimate decision to sue may impair or even destroy the relationship between the partners, that relationship is not the focus or concern of the parent-child immunity rule. Id. at 358, 550 A.2d at 956. Thus, despite the possible financial impact upon the father (and therefore, the family) by the successful prosecution of a suit against his business partner by a minor child, we concluded that "preservation of the family interests [justifying the parent-child immunity doctrine] does not require [the extension of the doctrine] to bar any recovery from a parent's partner." Id. at 357, 550 A.2d at 955.

n10 Md. Code (1993 Repl. Vol., 1996 Supp.), § 9-401 of the Corporations and Associations Article requires that
 
"(1) Each partner . . . must contribute towards the losses, whether of capital or otherwise, sustained by the partnership according to his share in the profits.
 
   (2) The partnership must indemnify every partner in respect of payments made and personal liabilities reasonably incurred by him in the ordinary and proper conduct of its business, or for the preservation of its business or property."
 
In our view, application of § 9-401 would have "the economic effect [of] . . . reducing the recovery within the family unit by the parental partner's contractual, pro rata share of the partnership liability to the plaintiff." Hatzinicolas, 314 Md. at 359, 550 A.2d at 956.

[***10]

   Recognizing that reality sometimes belies the ideal of family life, our predecessors also deemed permissible a suit by a minor child against her father's estate for alleged injuries she sustained when, within the span of one week, the father both murdered the child's mother and committed suicide in the child's presence. Mahnke v. Moore, 197 Md. 61, 77 A.2d 923 (1951). The Court reasoned that
 
"in these circumstances, there can be no basis for the contention that the daughter's suit against her father's estate would be contrary to public policy, for the simple reason that there is no home at all in which discipline and tranquility are to be preserved. . . . When . . . the parent is guilty of acts which show complete abandonment of the parental relation, the rule giving him immunity from suit by the child, on the ground that discipline should be maintained in the home, cannot logically be applied, for when he is guilty of such acts he forfeits his parental authority and privileges, including his immunity from suit. . . . Justice demands that a minor child shall have a right of action against a parent for injuries resulting from cruel and inhuman treatment or for malicious and[***11] wanton wrongs."
 
Id. at 67-68, 77 A.2d at 926.

   Renko contends that since this Court has already permitted children to maintain actions against their parents for acts [*473] occurring after the child reaches the age of majority, see Waltzinger v. Birsner, 212 Md. 107, 128 A.2d 617 (1957), we should take the logical step of allowing otherwise adult children to sue their parents for wrongful acts that occur during minority. We see no such logic. In fact, Renko's proffered solution to her particular dilemma would result in a de facto abrogation of the parent-child immunity doctrine in its entirety.

   Maryland Code (1995 Repl. Vol., 1996 Supp.), § 5-201 n11 of the Courts & Judicial Proceedings Article permits minors to bring tort actions for injuries sustained in minority at the hands of another within three years after reaching the age of majority. Thus, an injured minor child could simply wait until reaching the age of majority before initiating a suit that is otherwise barred in his or her infancy. In that circumstance, the parent-child immunity doctrine would serve not as a bar to actions between parent and child, but rather as an obstacle easily overcome with the passage[***12] of time. The looming specter of a lawsuit is as surely detrimental to family peace and harmony and parental authority as is the actual suit itself. Given this Court's long commitment to the parent-child immunity [**473] doctrine, we refuse to create an exception that would effectively negate the rule and open courthouse doors to every conceivable dispute between parent and child. See Warren, 336 Md. at 626, 650 A.2d at 256. Indeed, the rule was fashioned to prevent just that. Id.

n11 Section 5-201 provides in relevant part:
 
"Persons under a disability.

   (a) Extension of time. -- When a cause of action subject to a limitation under Subtitle 1 of this title accrues in favor of a minor or mental incompetent, that person shall file his action within the lesser of three years or the applicable period of limitations after the date the disability is removed."

   b.

   Renko alternatively contends that "with mandatory automobile insurance creating universal coverage for auto torts, there can be no rational objection [***13]to recovery by an emancipated [*474] child in" the case sub judice. Maryland Code (1992, 1996 Supp.), § 17-103 of the Transportation Article and Md. Code (1957, 1994 Repl. Vol., 1995 Supp.), Art. 48A, §§ 539, 540, 541 respectively require Maryland drivers to procure, and Maryland insurers to provide, certain minimum liability insurance coverage for personal injury and property damage caused by automobile accidents resulting from the primary negligence of the insured. See National Grange Mut. Ins. Co. v. Pinkney, 284 Md. 694, 704, 399 A.2d 877, 882 (1979). Included within these statutes are uninsured motorist provisions that enable innocent victims of automobile accidents to recover from their own insurers in the event that the negligent driver is without insurance. Art. 48, § 541; see also Nationwide Mut. Ins. Co. v. Webb, 291 Md. 721, 737, 436 A.2d 465, 474-75 (1981). It is these statutes upon which Renko relies.

   We recognized in Warren and Frye, supra, that an overwhelming majority of jurisdictions have abrogated the parent-child immunity doctrine in whole or in part. See Warren, 336 Md. at 627 n.2, 650 A.2d at 257 n.2; Frye, 305 Md. at 562-54, 505 A.2d at[***14] 836-37. For a discussion of those cases, see Romualdo P. Eclavea, Annotation, Liability of Parent for Injury to Unemancipated Child caused by Parent's Negligence -- Modern Cases, 6 A.L.R. 4th 1066 (1981, 1996 Supp.).

   At the time we issued the Warren opinion, "only eight states, including Maryland, continued to adhere to the doctrine of parent-child immunity without exception for motor torts." 336 Md. at 621 n.1, 650 A.2d at 254 n.1. Those same jurisdictions continue to stand their ground. n12

n12 See La. Rev. Stat. § 9:571 (West 1997); Mitchell v. Davis, 598 So. 2d 801 (Ala. 1992); Robinson v. Robinson, 323 Ark. 224, 914 S.W.2d 292 (Ark. 1996); Terror Mining Co. v. Roter, 866 P.2d 929 (Colo. 1994); Mohorn v. Ross, 205 Ga. App. 443, 422 S.E.2d 290 (1992); Vaughan v. Vaughan, 161 Ind. App. 497, 316 N.E.2d 455 (1974); Pullen v. Novak, 169 Neb. 211, 99 N.W.2d 16 (1959).

   Other jurisdictions, however, have found persuasive arguments calling for the abolition of the parent-child immunity[***15] doctrine in motor tort cases. The seminal decision in this area [*475] is Sorensen v. Sorensen, 369 Mass. 350, 339 N.E.2d 907 (1975). There, the Supreme Judicial Court of Massachusetts observed:
 
"In dealing with an automobile accident in which two passengers, one an unemancipated minor child of the defendant driver and the other a minor who had no familial relationship to the defendant driver, are injured, it would be incongruous to permit recovery against a parent and the parent's insurance company by the unrelated child but to deny recovery to the parent's child when culpability is admitted or established."
 
Id. at 360, 339 N.E.2d at 913. Noting the basis of the parent-child immunity doctrine, the court commented that
 
"the primary disruption to harmonious filial relations is not the lawsuit brought for damages after the injury but the injury itself, resulting from the misconduct of a parent. Falco v. Pados, 444 Pa. 372, 380, 282 A.2d 351[, 355] (1971). When the wrong has been committed, the harm to the basic fabric of the family has already been done and the source of rancor and discord already introduced into family relations. Tamashiro v. De Gama, 51 Hawaii[***16] 74, 78, 450 P.2d 998[, 1001] (1969). Balts v. Balts, 273 Minn. 419, 429, 142 N.W.2d 66[, 73] (1966). It can hardly aid family reconciliation to deny the injured child access to the courts and, through them, to any liability insurance which the family might maintain."
 
Id. at 360, 339 N.E.2d at 913.

   Considering the same issue, the Supreme Court of Delaware concluded, that with the [**474] almost universal existence of motor vehicle liability insurance,
 
"the domestic tranquility argument is, at best, hollow. Liability insurance impersonalizes the suit and negates the possible disruption of family harmony by easing the financial repercussions of the accident. In short 'when insurance is involved, the action between parent and child is not truly adversary; both parties seek recovery from the insurance carrier to create a fund for the child's medical care and support without depleting the family's other assets.'"
[*476]  
Williams v. Williams, 369 A.2d 669, 672 (Del. 1979)(citing Sorensen, 369 Mass. at 362-63, 339 N.E.2d at 914); see also Schneider v. Coe, 405 A.2d 682 (Del. 1979)(affirming abrogation of parent-child immunity in auto tort cases where insurance coverage[***17] exists). Stated otherwise, "domestic peace and harmony may be more threatened by denying the cause of action than by permitting one, especially where there is insurance." Glaskox v. Glaskox, 614 So. 2d 906, 911 (Miss. 1992). Thus, the argument goes, abrogating parent-child immunity where automobile liability insurance exists furthers the objectives of the rule by relieving the family of the financial burden of an adverse judgment while at the same time providing a means of recovery for the injured child. Numerous other jurisdictions concur in this view. n13

n13 See Broadbent v. Broadbent, 178 Ariz. 53, 54-55, 870 P.2d 1149, 1150 (1993); Myers v. Myers, 891 P.2d 199, 204 (Alaska 1995); Ard v. Ard, 414 So. 2d 1066, 1070 (Fla. 1982); Farmers Ins. Group v. Reed, 109 Idaho 849, 851, 712 P.2d 550, 552 (1985); Cates v. Cates, 156 Ill. 2d 76, 107, 619 N.E.2d 715, 730, 189 Ill. Dec. 14 (1993); Nocktonick v. Nocktonick, 227 Kan. 758, 768, 611 P.2d 135, 141 (1980); Black v. Solmitz, 409 A.2d 634, 639 (Me. 1979); Transamerica Ins. Co. v. Royle, 202 Mont. 173, 180, 656 P.2d 820, 824 (1983); Bonte v. Bonte, 136 N.H. 286, 289, 616 A.2d 464, 465-66 (1992); France v. A.P.A. Trans. Corp., 56 N.J. 500, 506-07, 267 A.2d 490, 494 (1970); Guess v. Gulf Ins. Co., 96 N.M. 27, 29, 627 P.2d 869, 871 (1981); Nuelle v. Wells, 154 N.W.2d 364, 366-67 (N.D. 1967); Unah v. Martin, 676 P.2d 1366, 1368 (Okla. 1984); Winn v. Gilroy, 296 Ore. 718, 731-32, 681 P.2d 776, 784 (1984); Silva v. Silva, 446 A.2d 1013, 1015-16 (R.I. 1982); Jilani v. Jilani, 767 S.W.2d 671, 673 (Tex. 1988); Smith v. Kauffman, 212 Va. 181, 185-86, 183 S.E.2d 190, 194 (1971); Merrick v. Sutterlin, 93 Wash. 2d 411, 416, 610 P.2d 891, 893 (1980); Lee v. Comer, 159 W. Va. 585, 589-90, 224 S.E.2d 721, 721-23 (1976).

[***18]

   The Delaware court added that the "domestic-tranquility justification" also lacked merit in light of the fact that other courts have permitted various types of intrafamilial litigation, including, inter alia, suits between siblings. Williams, 369 A.2d at 672 (citing Midkiff v. Midkiff, 201 Va. 829, 113 S.E.2d 875 (1960)(suit brought by a minor against his unemancipated brother for injuries sustained in a motor vehicle accident); see also Smith v. Kauffman, 212 Va. 181, 185, 183 S.E.2d 190, 194 [*477] (1971)(parent-child immunity anachronistic when applied to automobile accident litigation).

   The fraud-collusion justification for the parent-child immunity doctrine too has suffered its critics, among them, the Mississippi Supreme Court -- the birthplace of the parent-child immunity doctrine. See Hewlett v. George, 68 Miss. 703, 9 So. 885 (1891). In Glaskox, supra, the court majority observed that 
 
"'the possibility of collusion exists to a certain extent in any case. Every day we depend on juries and trial judges to sift evidence in order to determine the facts and arrive at proper verdicts. Experience has shown that the courts are quite adequate for this task. In[***19] litigation between parent and child, judges and juries would naturally be mindful of the relationship and would be even more on the alert for improper conduct.'"
 
 614 So. 2d at 912 (quoting Nocktonick v. Nocktonick, 227 Kan. 758, 768-69, 611 P.2d 135, 142 (1980)). In a similar vein, the Supreme Court of Pennsylvania has added:
 
"In the last analysis it is much to be preferred that we depend upon the efficacy of the judicial process to ferret out the meritorious from the fraudulent rather than using a broad broom to sweep away a class of claims, a number of which are admittedly meritorious."
 
Falco v. Pados, supra, 444 Pa. at 381, 282 A.2d at 356.

   Recognizing the continuing need to protect parental authority and family harmony, some jurisdictions have attempted to limit immunity [**475] to negligent conduct arising out of an "exercise of parental authority . . . [or] an exercise of ordinary parental discretion with respect to the provision of food, clothing, housing, medical and dental services, and other care." Goller v. White, 20 Wis. 2d 402, 413, 122 N.W.2d 193, 198 (1963); see also Jilani v. Jilani, 767 S.W.2d 671 (Tex. 1988); Plumley v. Klein, [***20] 388 Mich. 1, 9, 199 N.W.2d 169, 172-73 (1972); Rigdon v. Rigdon, 465 S.W.2d 921, 923 (Ky. 1971).

   California and New York have adopted their own unique brands of parent-child immunity. California courts apply a [*478] "reasonable parent" standard to determine the viability of tort actions between parent and child. Gibson v. Gibson, 3 Cal. 3d 914, 921, 479 P.2d 648, 653, 92 Cal. Rptr. 288 (1971). New York, on the other hand, seems to permit all such actions, except those arising out of a parent's failure to properly supervise the child. Under New York law, parents owe no legal duty to their children to supervise them properly. Holodook v. Spencer, 36 N.Y.2d 35, 51, 324 N.E.2d 338, 346, 364 N.Y.S.2d 859 (1974).

   Despite the majority trend, even those most critical of the rule must acknowledge that its abrogation is not a panacea. At least with respect to motor tort cases, the argument for abrogation suffers from several infirmities.

   In a normal case, liability insurance becomes relevant only after an insured's liability is fixed in an appropriate legal proceeding. Yet as between parent and child, it becomes the raison d'etre of the suit. Thus, unlike a true adversarial proceeding, an insurer is forced into[***21] the unenviable position of attempting to defend a suit that its insured has every incentive to lose. n14

n14 In this context, Justice Shepard of the Supreme Court of Idaho has observed with respect to his court's decision to abrogate the parent-child immunity doctrine in motor tort cases because of mandatory automobile liability insurance that
 
"the reason family members are less likely to experience disharmony over the lawsuit is that they will be more likely to agree on liability. A parent is more likely to admit to negligence, whether or not it is true, when the insurance coverage of the parent's child is involved."
 
 Farmers Ins. Group v. Reed, 109 Idaho 849, 857, 712 P.2d 550, 558 (1985)(Shepard, J., dissenting).

   This, of course, inevitably leads the trier of fact to realize that the suit targets not the parent or child (to whom immunity would otherwise attach) but rather the insurance company. Maryland follows the majority rule that evidence of liability insurance on the part of a defendant is[***22] generally inadmissible. Allstate Ins. Co. v. Atwood, 319 Md. 247, 258, 572 A.2d 154 (1990); see also Allstate Ins. Co. v. Miller, 315 Md. 182, 191, [*479] 553 A.2d 1268, 1272 (1989); Jones v. Federal Paper Bd. Co., 252 Md. 475, 494-95, 250 A.2d 653, 664 (1969); Snowhite v. State, 243 Md. 291, 301, 221 A.2d 342 (1966); Takoma Park Bank v. Abbott, 179 Md. 249, 263, 19 A.2d 169, cert. denied, 314 U.S. 672, 62 S. Ct. 134, 86 L. Ed. 538 (1964). This policy stems from the fact that the matter of insurance is irrelevant to the issue of a defendant's liability and evidence of that irrelevant fact is highly prejudicial to the defendant's case. Morris V. Weddington, 320 Md. 674, 680, 579 A.2d 762, 765 (1990)(quoting Atwood, supra, 319 Md. at 258, 572 A.2d at 159). Yet the insurance justification for abrogation of the parent-child immunity doctrine in motor tort cases ignores the practical considerations associated with this policy. Indeed, at least one commentator has acknowledged that "an insurance underwriter may experience . . . problems in defending an intra-family tort claim." See Comment, Parent Child Immunity: Time for Maryland to Abrogate an Anachronism, [***23] 11 U.Balt. L. Rev. 435, 464-65 (1982).

   It is a common experience in many courts that a jury's generosity is proportional to the amount of available insurance. Although it has been suggested that informing juries prior to deliberations that unjustly high awards affect insurance rates universally, see id. at 466, that warning instructs jurors to consider cautiously an issue they ought not to consider at all.

   Also, the insurance-based argument in favor of abrogation fails to assess the consequences of an award that exceeds available [**476] coverage. n15 Is the child then to proceed against the assets of the family? If that is so, it is hard to believe that the rancor and discord the insurance is said to obviate would not find its way back into the mix. While denying an "injured child access to the courts, and through them any liability [*480] insurance the family . . . maintains [might not] aid family reconciliation," see Sorensen, supra, 369 Mass. at 360, 339 N.E.2d at 913, the same can be said of handing an injured child a large damage award and allowing him or her to ravage a family through further collection proceedings. Either way, the family suffers. And even assuming that a[***24] child's recovery is limited to the amount of available insurance, the argument that his or her recovery should be no different than that of any person negligently injured once again takes center stage.

n15 In light of the commonly used "household exclusion" in automobile insurance policies, this circumstance is likely to occur. See State Farm Mut. v. Nationwide Mut., 307 Md. 631, 643, 516 A.2d 586, 592 (1986)(household exclusion clause in automobile liability insurance policy invalid to extent of minimum statutory liability coverage, but otherwise valid and enforceable for exclusions above that minimum).

   Further, many families carry medical insurance that would necessarily compensate the injured child, and therefore, his or her family, for injury-related expenses. Allowing children then to proceed to court and recover for pain and suffering and other noneconomic damages, which often far exceed medical costs, might potentially saddle a family with a judgment that they can ill-afford to pay because, as previously[***25] indicated, it exceeds available insurance.

   Finally, Justice Lee of the Supreme Court of Mississippi cogently observed that many of the arguments against parent-child immunity
 
"imply that a child injured by the negligence of a parent is adrift in our current system with no rights of all. . . . Tort law cannot erase physical injuries or soothe human suffering. It can only insure that injured parties are compensated. Parents already have the legal responsibility of providing care for their children. . . . A policy of immunity in no way detracts from the seriousness of the issue of parental neglect or other forms of abuse. The proper remedy for these injuries, however, is eternal vigilance on the part of individuals and government agencies and vigorous enforcement of criminal statutes."
 
Glaskox, supra, 614 So. 2d at 916 (Lee J., dissenting).

   In light of the foregoing observations and on balance, we remain convinced that the parent-child immunity rule "is still in the best interests of both children and parents to retain . . . [and that] abrogating immunity would result only in further discord within the family and would interfere with the exercise [*481] of parental discretion[***26] in raising and disciplining children." Warren, 336 Md. at 626, 650 A.2d at 255.

   c.

   Renko lastly contends that the parent-child immunity doctrine as applied in motor vehicle torts is "irrational and arbitrary and violates Articles 19[ n16 ] and 24[ n17 ] of the Maryland Declaration of Rights, and the Equal Protection and Due Process Clauses of the [Fourteenth Amendment to the] United States Constitution.[ n18 ]" We find these assertions to be meritless.

n16 Article 19 of the Maryland Declaration of Rights provides:

   "That every man, for any injury done to him in his person or property, ought to have remedy by the course of the Law of the land, and ought to have justice and right, freely without sale, fully without any denial, and speedily without delay, according to the Law of the land."

 

n17 Article 24 of the Maryland Declaration of Right provides:

   "That no man ought to be taken or imprisoned or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or, in any manner, destroyed, or deprived of his life, liberty or property, but by the judgment of his peers, or by the Law of the land."

[***27] 

n18 The Fourteenth Amendment to the United States Constitution provides in relevant part:

   "No State [shall] deprive any person of life, liberty, or property, without due process of law; nor deny any person within its jurisdiction the equal protection of the laws."

   [**477] With respect to her contention that denying a minor child access to the courts for injuries sustained at the hands of a negligent parent violates the injured child's due process rights, Johnson v. Maryland State Police, 331 Md. 285, 628 A.2d 162 (1993) is dispositive. In Johnson, we considered the constitutional validity of an administrative claim requirement under the Maryland Tort Claims Act. See Md. Code (1995 Repl. Vol., 1996 Supp.), §§ 12-101, et seq. of the State Government Article. In so doing, we could not "agree [with the Petitioner's assertion] that there is a constitutionally protected vested property right in a particular cause of action." Johnson, 331 Md. at 298-99, 628 A.2d at 168; see also Murphy v. [*482] Edmonds, 325 Md. 342, 362-63, 601 A.2d 102, 112 (1992). Renko therefore states no cognizable[***28] claim under either Article 24 of the Maryland Declaration of Rights or the Due Process Clause of the Fourteenth Amendment. See Board of Regents of State Colleges v. Roth, 408 U.S. 564, 569-70, 92 S. Ct. 2701, 2705, 33 L. Ed. 2d 548, 556-57 (1972)(in order to assert a due process claim, individual must have property or liberty interest protected by the Fourteenth Amendment); see also Livingston v. State, 317 Md. 408, 410, 564 A.2d 414, 415-16 (1989); Pitsenberger v. Pitsenberger, 287 Md. 20, 27, 410 A.2d 1052, 1056 (1980)(Art. 24 of the Maryland Declaration of Rights construed in pari materia with Fourteenth Amendment to the United States Constitution); accord Oursler v. Tawes, 178 Md. 471, 483, 13 A.2d 763, 768 (1940).

   Renko's equal protection claim suffers a similar analysis. Although Article 24 does not contain an express equal protection clause, the concept of equal protection nevertheless is embodied in the Article. See State Admin. Bd. of Election Laws v. Board of Supervisors, 342 Md. 586, 595 n.6, 679 A.2d 96, 100 n.6 (1996); Gilchrist v. State, 340 Md. 606, 623 n.3, 667 A.2d 876, 884 n.3 (1995); Ashton v. Brown, 339 Md. 70, 101 n.17, 660 A.2d[***29] 447, 462 n.17 (1995); Verzi v. Baltimore County, 333 Md. 411, 417, 635 A.2d 967, 969-970 (1994). In that regard, federal equal protection decisions are illustrative. Tyler v. State, 330 Md. 261, 264-65, 623 A.2d 648, 650 (1993). Even so, we have found neither State nor federal authority supportive of Renko's position, and she cites none.

   Renko maintains that the common law parent-child immunity doctrine impermissibly discriminates against her and others similarly situated based upon age and familial status. Neither, however, is a "suspect class" under traditional equal protection jurisprudence. n19  Massachusetts Bd. of [*483] Retirement v. Murgia, 427 U.S. 307, 312, 96 S. Ct. 2562, 2566, 49 L. Ed. 2d 520, 524-25 (1976); accord In re Trader, 272 Md. 364, 397, 325 A.2d 398, 415-16 (1974)(age). See also Lyng v. Castillo, 477 U.S. 635, 638, 106 S. Ct. 2727, 2729, 91 L. Ed. 2d 527, 533 (1986)(familial relationship). Thus, even assuming, without deciding, that the common law doctrine of parent-child immunity is subject to constitutional attack, we must determine if the classifications of which Renko complains bear any reasonable or rational relation to the objectives of the[***30] rule. See Kirsch v. Prince George's County, 331 Md. 89, 104, 626 A.2d 372, 379 (1993). Under this analysis, the parent-child immunity doctrine

n19 We find this assertion curious in light of Renko's contention that the "proper" result in this case is to "permit emancipated children to maintain actions against a parent (at least for auto torts) committed by a parent after the minor turns [sixteen] years of age." Although such a result would obviously benefit her cause, she offers no explanation why the line she draws is any less arbitrary or capricious then the age of majority currently set by the Legislature in Md. Code (1957, 1996 Repl. Vol.), Art. 1, § 24(a).

 
"can be invalidated only if the classification is without any reasonable basis and is purely arbitrary. Further, a classification having some reasonable basis need not be made with mathematical nicety and may result in some inequality. If any state of facts reasonably can be conceived that would sustain the clarification, the existence of that[***31] state of facts at the time the law was [adopted] must be assumed."
 
Whiting-Turner Contract. Co. v. Coupard, 304 Md. 340, 352, 499 A.2d 178, 185 (1992).

   For the reasons articulated in Part II of this opinion and exhaustively explained in Warren and Frye, supra, we conclude that [**478] the parent-child immunity doctrine survives the rational basis standard of review. We continue to believe that the doctrine well serves the citizens of this State by insulating families from the vagaries and rancorous effects of tort litigation. That it may occasion undesirable consequences is quite irrelevant. "'To be able to find fault with a law is not to demonstrate its invalidity. It may seem unjust and oppressive, yet be free from judicial interference. The problems of government are practical ones and may justify, if they do not require, rough accommodations, illogical, it may be, and unscientific.'"  In re Trader, supra, 272 Md. at 399, 325 A.2d at [*484] 416-17 (quoting Metropolis Theatre Co. v. City of Chicago, 228 U.S. 61, 69-70, 33 S. Ct. 441, 443, 57 L. Ed. 730, 734 (1913)).
 
   Similarly, although we have held that "Article 19 does guarantee access to the Courts . . . [,][***32] that access is subject to reasonable regulation." Edmonds, supra, 325 Md. at 365, 601 A.2d at 113. In light of the fact that parents are charged with the "support, care, nurture, and welfare" of their children, see n.8, supra, Maryland law has long recognized, save for extraordinary circumstances, that the parent-child immunity doctrine is a reasonable and well-founded limitation upon a child's access to our courts, serving to protect one of the most fundamental and sacred units in our society.
 
JUDGMENT AFFIRMED, WITH COSTS. 

Woodard v. Flanagan 
Pet. Docket No. 187, September Term, 1996
 
COURT OF APPEALS OF MARYLAND
 
346 Md. 241; 695 A.2d 1229; 1997 Md. LEXIS 445

 June  27, 1997, Decided

   PRIOR HISTORY: [*1] (Circuit Court for  Anne Arundel  County, No. C-96-32872.CO).

OPINION: Petition for Writ of Certiorari denied. 

Emrick v. MVA 
Pet. Docket No. 48, September Term, 1996
 
COURT OF APPEALS OF MARYLAND
 
346 Md. 27; 694 A.2d 949; 1997 Md. LEXIS 158

 June  11, 1997, Decided

   PRIOR HISTORY: [*1] (No. C-95-19272AA, Circuit Court for  Anne Arundel  County).

OPINION: Petition for Writ of Certiorari denied. 

COMPTROLLER OF THE TREASURY v. HELEN NELSON et al. 
No. 96, September Term, 1995
 
COURT OF APPEALS OF MARYLAND
 
345 Md. 706; 694 A.2d 468; 1997 Md. LEXIS 71

 June  6, 1997, Filed

   PRIOR HISTORY: [***1] Certiorari to the Court of Special Appeals (Circuit Court for  Anne Arundel  County) Lawrence H. Rushworth, JUDGE.

DISPOSITION: JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED, WITH COSTS.

CORE TERMS:  reclassification, grievance, budget, appointing authority, regulation, appropriation, effective date, outstanding, directive, grievant, reclassified, personnel, freeze, state employees, effective, reduction, secretary, froze, timely filed, work week, assigned, duties, legislative authority, public assistance, merit system, recommendation, mandatory, grievance procedure, Administrative Law, alternative procedure

COUNSEL: ARGUED BY Andrew H. Baida, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General; Jean H. Baker, Assistant Attorney General, on brief) of Baltimore, MD, FOR PETITIONER.
 
ARGUED BY Barry C. Steel of Towson, MD, FOR RESPONDENT.

JUDGES: ARGUED BEFORE Eldridge, Rodowsky, Chasanow, Karwacki, Bell, Raker, and McAuliffe, John F. (retired and specially assigned), JJ. Opinion by Eldridge, J. 

OPINIONBY: Eldridge

OPINION: [*707]
 
[**469] Opinion by Eldridge, J.

   The issue in this case is whether, under the applicable statutory and regulatory scheme, a state agency is entitled to deny its employees reclassifications solely because of present fiscal difficulties.

   I.

   Vicki George, Margaret Glidden and Helen Nelson were previously employed as Revenue Examiners III at the Motor Fuel Tax Division of the Office of the Comptroller of the Treasury. [***2] During 1991, all three employees met the qualifications for Revenue Specialist I, a position with a higher rate of pay and greater responsibilities than required for Revenue [*708] Examiner III. Upon meeting these qualifications, the Division Director submitted to the Comptroller's personnel office applications for reclassification and back pay on behalf of the three employees. The applications were filed on April 4, 1991, July 18, 1991, and March 4, 1992, respectively.

   Although each application was initially marked with a statement of approval by the personnel office, no action was taken on any of the applications. n1 In response to a September 1990 directive issued by Governor Schaefer, the Comptroller had frozen all reclassification requests as of November 1990. n2 

n1 When the employees' applications were initially submitted, they were stamped with the following statement: "We hereby certify that funds are available in our current budget to fund the recommended personnel transaction." According to the Personnel Director of the Office of the Comptroller, however, this stamp is merely a "blanket statement" or a "formality," and does not accurately reflect the current amount of funds in the agency's budget.

[***3] 

n2 In a memorandum dated September 4, 1990, Governor Schaefer directed all cabinet secretaries and heads of independent agencies "to reduce General Fund appropriations by $150 million to cover a current year shortfall caused by faltering revenues and unexpected cost increases." In pertinent part, the Governor's letter stated as follows:

   "Effective today I am directing all State agencies to institute a hiring freeze on all current vacancies of full-time, part-time, and contractual positions. . . . I am further directing that all agencies begin a critical review of State construction projects, loan programs, and equipment purchases.

   "To achieve the reduction in General Funds appropriation, I am assigning each agency head a General Fund reduction target and requesting a costcontainment plan be developed to achieve the targeted amount."

   The Comptroller's decision to freeze reclassification requests was consistent with two policies promulgated by the Comptroller, both of which are applicable to the employees in this case. The first, "Personnel Policy # 8," provides in pertinent part as follows:
 
"G. [***4] Availability of Funds
 
The classification of a position may not be changed unless funds are available in the department's and/or agency's [*709] current budget to cover the cost of such a change." n3 

 n3 The Office of the Comptroller distinguishes between "Personnel Policy # 7" reclassifications, which involve different steps or "grades" within a given position title, and "Personnel Policy # 8" reclassifications, which involve a different position title and upgrade, and greater responsibilities. The employees in this case were seeking Personnel Policy # 8 reclassifications. Applications for Personnel Policy # 7 reclassifications were typically processed first while Personnel Policy # 8 applications were processed "in the discretion of the management." Thus, if the Office lacked the funds to approve the Personnel Policy # 8 reclassifications, it would refuse to do so.

   Under a second policy of the Comptroller's Office, the effective date of reclassifications and, therefore, salary upgrades, was deferred until the [***5]next pay period following approval of the reclassification requests. n4 Accordingly, it was unnecessary under this policy to [**470] award back pay to the three employees for the period before their reclassifications had been approved. 

n4 From 1981 through 1993, the Office of the Comptroller adhered to this policy. On October 26, 1994, however, the Comptroller amended the policy to make reclassifications effective immediately after the date on which the new duties and responsibilities were assigned to the employee.

   The three employees did not learn of the freeze on reclassifications until April 1993, when employees George and Glidden met with the Deputy Comptroller of the Treasury to discuss the status of their applications. n5 At that time, the Deputy Comptroller informed the employees that they would not be reclassified as Revenue Specialists I until October 1, 1993, and would not receive any back pay. As a result, on April 10, 19 and 28, 1993, respectively, employees George, Glidden and [*710] Nelson filed grievances with[***6] respect to the reclassifications and back pay.

n5 There was some disagreement at the administrative level and in the courts below as to when the employees first learned that their reclassification requests were being denied. The Comptroller previously argued that the employees did not timely file their grievance applications pursuant to Maryland Code (1994, 1996 Supp.), § 12-203 of the State Personnel and Pensions Article. This argument was rejected by both the Administrative Law Judge and by the courts below, and it is not raised before this Court. Therefore, we accept the holdings below that the grievances were timely filed. See notes 7-8, infra.

   The Office of the Comptroller in August 1993 began to process Personnel Policy # 8 reclassification applications, and on September 29, 1993, all three employees were reclassified as Revenue Specialists I. None of the employees, however, received back pay.

   In accordance with Maryland Code (1994, 1996 Supp.), §§ 12-201 through 12-205 of the State Personnel and [***7] Pensions Article, the three employees pursued unsuccessfully their grievances through the steps of the State Employees' Grievance Procedure. n6 Thereafter, they requested a hearing before the Office of Administrative Hearings. 

n6 In 1996, the State Employees' Grievance Procedure was amended and the relevant sections of the procedure were transferred to Maryland Code (1994, 1996 Supp.), §§ 12-201 through 12-205 of the State Personnel and Pensions Article. As this amendment made no substantive changes pertinent to this case, we shall refer to the present statutory provisions throughout this opinion.

   Section 12-402, which provides the remedies available to successful grievants under the State Employees' Grievance Procedure, states as follows:
 
" § 12-402. Remedies available to grievants. 
 
(a) In general. -- Except as provided in subsection (b) of this section, the remedies available to a grievant under this title are limited to the restoration of the rights, pay, status, or benefits that the grievant otherwise would have had if the contested policy, procedure, or regulation had been applied appropriately as determined by the final decision maker.

   (b) Back pay. -- (1) A decision maker at Step Two or Step Three of the grievance procedure may order an appointing authority to grant back pay.

   (2)(i) In a reclassification grievance back pay may be awarded for a period not exceeding 1 year before the grievance procedure was initiated.

   (ii) A back pay order under this paragraph is in the discretion of the Secretary and the Office of Administrative Hearings.

   (3) Subject to the limitations in Title 14, Subtitle 2 of this article, an appointing authority shall carry out a back pay order issued under this subsection."

[***8]

   On November 10, 1993, a hearing was held before Administrative Law Judge (ALJ) Geraldine A. Klauber. In her opinion and decision issued on December 6, 1993, the ALJ [*711] first rejected the Comptroller's argument that the grievance applications were not timely filed in accordance with Code (1993, 1994), § 10-206 of the State Personnel and Pensions Article. n7 The ALJ accepted the employees' position that they did not learn that their back pay requests were denied until the April 1993 meeting with the Deputy Comptroller. n8 The ALJ noted that all three [**471] grievance applications were properly filed within two weeks of that time. 

n7 Section 10-206 provides as follows:
 
" § 10-206. Period to initiate grievance proceeding.

   A grievance proceeding must be initiated by an employee within 30 days after: 

   (1) the occurrence of the alleged act that is the basis for the grievance; or 

   (2) the employee first knew or reasonably should have known of the alleged act that is the basis for the grievance."

   In 1996, § 10-206 was amended and transferred to Maryland Code (1994, 1996 Supp.), § 12-203 of the State Personnel and Pensions Article. The revised section provides that a grievance proceeding must be filed within 20 days, rather than 30 days, after the earlier of the events listed in subsection (1) and (2) of § 10-206. Because § 10-206 was in effect when events pertinent to this action occurred, that statute is applicable to this case.

[***9] 

n8 The Comptroller had argued that the employees should have known that they were being denied back pay either in January 1993, when an announcement was made at an employee awards assembly that only Personnel Policy 7 reclassifications were being approved, or in February 1993, when this same announcement was published in The Ledger, a local agency newsletter. All three employees denied either being present at the awards assembly or receiving notice through the newsletter.

   The ALJ, however, determined that the Comptroller's policy deferring the effective date of reclassifications until after approval of the reclassifications conformed with C.O.M.A.R. 06.01.01.13-1A, which provides in pertinent part as follows:
 
".13-1 Effective Date of Position Reclassification.

   A. The effective date of a position reclassification shall be the date on which the duties and responsibilities warranting the reclassification were assigned to the position. However, the effective date may not be earlier than 1 year before the date on which the reclassification is authorized." [*712]
 
According to the ALJ, [***10] this regulation "caps management's discretion regarding how far back an agency may go in making reclassification retroactive," but it "does not state that the effective date may [not] be less than one year before the reclassification is authorized, or at the time of authorization." Thus, the ALJ determined that the Comptroller's policy did not conflict with the regulation.

   Finally, the ALJ held that "the Grievants' applications for reclassification came at a time when the Office of the Comptroller, along with the rest of the State, was in the throes of a fiscal crisis. The Office of the Comptroller, in accordance with Policy # 8, froze the Grievants' reclasses due to lack of funds." Thus, the ALJ concluded that "the agency acted in conformance with Personnel Policy # 8 in not making the reclasses effective until there was money in the budget to fund the positions."

   The employees sought judicial review in the Circuit Court for Anne Arundel County. Thereafter, the circuit court affirmed the agency decision, stating:

   "1. The freeze on classifications ordered by the Office of the Comptroller was reasonably included within the directive from Governor William Donald Schaefer on September[***11] 4, 1990.

   "2. The action taken with respect to the reclassification of Helen Nelson, Margaret Glidden, and Vicki George, as set forth in the record, was not arbitrary or capricious."

   The employees appealed, and the Court of Special Appeals, in an unreported opinion, reversed and ordered that the case be remanded to the Office of Administrative Hearings for further proceedings. While the intermediate appellate court agreed that the grievances were timely filed, it held that the Comptroller's policy was inconsistent with C.O.M.A.R. 06.01.01.13-1A. The appellate court reasoned that the regulation expressly provides that "the effective date of a position reclassification shall be the date on which the duties and responsibilities warranting reclassification were assigned to the position." Thus, according to the Court of Special Appeals, [*713] the Comptroller's policy of making a reclassification effective beginning the pay period following approval of the reclassification was clearly inconsistent with the regulation. n9 

n9 In further support of its position, the Court of Special Appeals relied upon the Comptroller's concession in his brief that the pay policy adopted by the Comptroller's office was inconsistent with the regulation and that, effective October 26, 1994, the policy was changed to conform to the regulation. 

[***12]

    Furthermore, in rejecting the argument that the Comptroller's Office would have exceeded its budget by conforming to the regulation, the intermediate appellate court stated that "[a] legislative or executive refusal to provide funds at a particular time is not a valid reason for denying reclassification to an otherwise deserving employee." The Court of Special Appeals explained that a "determination that a reclassified employee is entitled to back pay does not constitute an order providing for the payment of those funds by a particular date. It is the prerogative of . . . the General Assembly to determine whether funds will be made available to satisfy any award." The appellate court pointed [**472] out that Code (1994, 1996 Supp.), §§ 14-201 through 14-204 of the State Personnel and Pensions Article, set forth a procedure by which the General Assembly may, in the annual budget, appropriate funds for the satisfaction of reclassification and back pay awards rendered in administrative proceedings.

   The Comptroller filed a petition for a writ of certiorari which this Court granted. Comptroller v. Nelson, 340 Md. 268, 666 A.2d 144 (1995).
 
II.

   The Comptroller's primary argument is[***13] that agency employees have no right to seek reclassification and back pay when the agency freezes funds "during the pendency of a statewide recession" and pursuant to the directive of the Governor. The employees, on the other hand, maintain that neither the existence of a financial crisis nor the Governor's directive provided sufficient justifications for the Comptroller's denial of their requests. The employees rely primarily [*714] on Code (1994, 1996 Supp.), §§ 14-201 through 14-204 of the State Personnel and Pensions Article, which specifically provide for an alternative procedure when an agency lacks the funds to pay awards rendered in administrative or judicial proceedings involving employee grievances. n10 

n10 Sections 14-201 through 14-204 of the State Personnel and Pensions Article were amended in 1996 and are derived without substantial change from former Code (1957, 1993), Art. 64A, §§ 54 et. seq.

   The employees also rely for support upon C.O.M.A.R. 06.01.03.14, which similarly outlines a procedure to follow when an agency lacks sufficient funds in its budget to satisfy a back pay award to a reclassified employee. C.O.M.A.R. 06.01.03.14 provides as follows:
 
".14 Awards of Back Pay. 
 
A. In any case in which the Secretary orders an appointing authority to grant back pay, the appointing authority shall comply with the following procedure:

   (1) The appointing authority shall pay the award from funds appropriated for the salary of the employee's position.

   (2) If sufficient funds were not appropriated to satisfy the award, the appointing authority shall seek an amended schedule for disbursement of appropriations pursuant to Article 15A, § 8, Annotated Code of Maryland.

    (3) If sufficient funds are not available under § A(1) and (2), the appointing authority shall seek funds from the General Emergency Fund as provided for in Article 78A, Annotated Code of Maryland.

   (4) If sufficient funds are not available under § A(1) --(3), the appointing authority shall report to the Comptroller of the Treasury as follows:

   (a) The name of the employee;

   (b) The date of the award;

   (c) The amount of the award;

   (d) The amount of the award unsatisfied; and
 
(e) The efforts undertaken by the appointing authority to satisfy the award under § A(1) --(3).

   (5) If a partial payment can be made under any provision of this section, partial payment shall be made.

   B. The appointing authority shall report in writing to the Secretary, within 20 days, after an award becomes final, that the appointing authority has complied with § A. The report shall include the same information required under § A(4)."

[***14]

   Sections 14-201 through 14-204 of the State Personnel and Pensions Article were originally enacted by Ch. 726 of the Acts of 1980. According to the Title of Ch. 726, the sections were for the purpose of "providing a funding mechanism for the payment of awards to employees." Sections 14-201 through 14-204 state as follows:  [*715]
 
" § 14-201. " Award" defined. 
 
In this subtitle, "award" means a final monetary or benefit award or judgment in an administrative, arbitration, or judicial proceeding involving an employee grievance or hearing that is held under:

   (1) this Division I or a regulation adopted under it; or
 
(2) a personnel policy or regulation that governs classified employees of the University of Maryland System or Morgan State University.
 
" § 14-202. Payments -- In general. 
 
If this state has sufficient money available at the time, an award made against this State or an officer or unit of this State shall be paid as soon as practicable within 20 days after the award is final.
 
" § 14-203. Same -- Money not immediately available.

    [**473] (a) Report to Comptroller. -- If sufficient money is not available at the time to satisfy an award[***15] made against this State or an officer or unit of this State, the affected unit or officer shall report the outstanding award to the State Comptroller.

   (b) Duties of Comptroller. -- The Comptroller shall:

   (i) keep an accounting of all outstanding awards; and
 
(ii) report that accounting annually to the Governor.
 
" § 14-204. Same -- Budget; payment of outstanding awards.
 
(a) Budget. -- The Governor shall include in the State budget sufficient money to pay all awards made against this State or an officer or unit of this State.

   (b) Payment of outstanding awards. -- On appropriation of money by the General Assembly, the Comptroller shall authorize payment of all outstanding awards in the order of the date on which each award was made."

   According to the Comptroller, the procedures set forth in §§ 14-201 through 14-204 of the State Personnel and Pensions Article are inapplicable to this case because the Comptroller's Office had "no funds to pay for the reclassification of [*716] these or any other employee due to the State's fiscal crisis." The Comptroller argues that use of the statutory procedure is also inappropriate because the Comptroller froze reclassifications[***16] in accordance with a 1990 directive from the Governor. The Comptroller views §§ 14-201 through 14-204 as statutes merely waiving sovereign immunity in personnel matters by providing a funding mechanism for monetary awards, and not as affording state employees a right to be reclassified with back pay. We disagree.

   Contrary to the position taken by the Comptroller, §§ 14-201 through 14-204 were specifically designed to provide an alternative in situations where an agency cannot afford to reclassify its employees with back pay. Sections 14-201 through 14-204 expressly direct that if sufficient money is unavailable to satisfy an award, the affected agency shall report the award to the Comptroller and the Comptroller shall report the award to the Governor. Thereafter, payment of the award is dependent upon the money being appropriated by the General Assembly. If the General Assembly appropriates the necessary funds, "the Comptroller shall authorize payment of all outstanding awards. . . ." The statutory procedure is couched in mandatory language. See, e.g., Prince George's County v. Vieira, 340 Md. 651, 660, 667 A.2d 898, 902 (1995) ("It is significant that the Legislature[***17] chose to use the word, 'shall.' [This is] . . . a direct indication that the Legislature directed that certain conduct is required"); Ward v. Dept. of Pub. Saf. & Cor. Services, 339 Md. 343, 352, 663 A.2d 66, 70 (1995) ("By . . . using the word 'shall,' the regulation makes these disciplinary sanctions mandatory"); In re Adoption No. A91-71A, 334 Md. 538, 559 n.5, 640 A.2d 1085, 1095 n.5 (1994) ("It is a longstanding principle of statutory construction that the word 'shall' is mandatory").

   In enacting §§ 14-201 through 14-204 of the State Personnel and Pensions Article, the General Assembly clearly envisioned a situation where an agency may lack the necessary funding to approve reclassification and back pay awards, and provided an alternative procedure to follow under those circumstances. [*717]

   In arguing that he properly froze reclassification and back pay requests in accordance with Governor Schaefer's directive, the Comptroller relies upon Workers' Compensation Comm'n v. Driver, 336 Md. 105, 647 A.2d 96 (1994), cert. denied, 513 U.S. 1113, 115 S. Ct. 906, 130 L. Ed. 2d 789 (1995); Judy v. Schaefer, 331 Md. 239, 627 A.2d 1039 (1993); Md. Classified Employees [***18] v. Governor, 325 Md. 19, 599 A.2d 91 (1991), cert. denied, 502 U.S. 1090, 112 S. Ct. 1160, 117 L. Ed. 2d 407 (1992); and Hopper v. Jones, 178 Md. 429, 13 A.2d 621 (1940). All of these cases, however, involved a reduction of appropriations in accordance with express legislative authority. As such, they are readily distinguishable from the present case.

   For example, in Workers' Compensation Comm'n v. Driver, supra, 336 Md. 105, 647 A.2d 96, two state employees argued that, despite the existence of a budget bill provision which expressly eliminated appropriations for their positions, they were entitled to [**474] the protection of the merit system rules applicable to laid-off agency employees. The employees relied on the fact that the budget bill provision was enacted at the recommendation of their agencies. In rejecting this argument, the Court reasoned that, despite any agency recommendations, "the decision to delete from the budget bill the appropriations for [the employees'] positions must be treated wholly as the decision of the General Assembly" (emphasis added). 336 Md. at 118, 647 A.2d at 103. Thus, the Court concluded that, because it was the General Assembly's[***19] clear intention to eliminate the employees' positions, they were not entitled to the protection of the merit system rules. In support of its conclusion in Driver, this Court relied upon Hopper v. Jones, supra, 178 Md. 429, 13 A.2d 621, where this Court similarly held that the lay-off statute is inapplicable when an enacted budget bill expressly deleted the appropriation for a particular employee's position.

   Md. Classified Employees v. Governor, supra, 325 Md. 19, 599 A.2d 91, involved a challenge by state employees to an executive order which increased their work week from 35 1/2 hours to 40 hours without providing them with additional [*718] compensation. The employees argued that the order conflicted with a statute which provided that state employees working in excess of a "normal work week" should receive additional compensation. This Court rejected the employees' argument, holding that, because a "normal work week" was statutorily defined as between 35 1/2 and 40 hours a week, the executive order was clearly authorized by the statute.

   Finally, in Judy v. Schaefer, supra, 331 Md. 239, 627 A.2d 1039, this Court rejected a challenge by a group of recipients[***20] of public assistance to the Governor's authority to reduce legislative budget appropriations for certain public assistance programs. There, we held that the Governor's reduction of the appropriations was in accordance with a statute which specifically delegated such authority to the Governor. Judy v. Schaefer, supra, 331 Md. at 266, 627 A.2d 1053.
 
The Comptroller's attempt to equate the situations in the above cases to that of the present case is unpersuasive. In this case, the Comptroller did not rely upon any express legislative authority when it froze employee reclassifications. Rather, the Comptroller relied upon a gubernatorial memorandum which directed the agency to institute a hiring freeze, which is clearly not the equivalent of a reclassification freeze.

   The Court of Special Appeals correctly held that the ALJ's decision was based upon an error of law.
 
JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED, WITH COSTS. 

                       
EVELYN L. PIZZA v. STEFANIE J. WALTER 
No. 48, September Term, 1996
 
COURT OF APPEALS OF MARYLAND
 
345 Md. 664; 694 A.2d 93; 1997 Md. LEXIS 58

 May  14, 1997, Filed

   PRIOR HISTORY: [***1] Certiorari to the Court of Special Appeals (Circuit Court for  Anne Arundel  County). Eugene M. Lerner, JUDGE.

DISPOSITION: JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED. CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO REVERSE THE JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AND TO REMAND IT TO THAT COURT FOR FURTHER PROCEEDINGS IN ACCORDANCE WITH THIS OPINION. COSTS IN THIS COURT AND THE COURT OF SPECIAL APPEALS TO BE PAID BY RESPONDENT.

CORE TERMS:  advertisement, purchaser, foreclosure sale, bona fide purchaser, waterfront, auctioneer, notice, supersedeas bond, ratification, mortgagee, moot, bid, fair market value, own property, bona fide, supplemental, unfairness, reversal, bath, ran, inadequacy of price, irregularity, coupled, sale price, advertising, ambiguous, selling, bedroom, parcels, acres

COUNSEL: ARGUED BY Charles J. Muskin of Glen Burnie, MD, FOR PETITIONER.
 
ARGUED BY C. Edward Hartman, III (Hartman and Parrott, on brief) of Annapolis, MD, FOR RESPONDENT.

JUDGES: ARGUED BEFORE Bell, C.J.; * Eldridge, Rodowsky, Chasanow, Karwacki, Raker, and Wilner, JJ. Opinion by Raker, J. 

* Judge Eldridge participated in the oral argument, but did not participate in the decision and the adoption of the opinion.

[***2]

OPINIONBY: Raker

OPINION:  
[*667] [**94] Opinion by Raker, J.

   We granted certiorari to consider whether the Circuit Court for Anne Arundel County erred in overruling exceptions to a mortgage foreclosure sale and ratifying the sale.

   Respondent, Citizen's Bank of Maryland (the Bank), sold for $325,000 certain property located at 8203 Ventnor Road, Pasadena, Maryland under the power of sale conferred by a Deed of Trust. The Bank held a first Deed of Trust on the property. The house was owned by Robert A. Diemer. Evelyn Pizza, Diemer's sister, held a second Deed of Trust on the property and Samson Financial Group held a third Deed of Trust on the same property. When Diemer defaulted on his payments to the Bank, the Bank filed a Deed of Appointment prepared by its counsel, C. Edward Hartman, III, appointing Stefanie J. Walter as Substitute Trustee (the Trustee). Under the power of sale, the Trustee filed a foreclosure action in [*668] the Circuit Court for Anne Arundel County to sell the property.

   The Bank served notice of the foreclosure proceedings to Diemer, and to Pizza and Samson Financial as holders of the second and third Deeds of Trust. The circuit court granted Pizza and Samson leave to intervene. The[***3] sale was conducted on March 3, 1995, at the courthouse door. The proceeds of the sale satisfied the indebtedness to the Bank, but did not produce sufficient funds to satisfy the indebtedness to Pizza or Samson. Aggrieved by the manner in which the sale was conducted, Pizza filed exceptions to the ratification of the sale.

   [**95] The circuit court held a trial on Pizza's exceptions. In an order dated June 21, 1995, the court denied the exceptions and ratified the sale. On June 22, 1995, pursuant to Maryland Rule
 
W 74, the Trustee filed a motion to substitute C. Edward Hartman, III, and Cynthia Hartman as purchasers, and the court signed the order on that date. n1 On June 26, 1995, the Trustee executed a Deed conveying the property to C. Edward Hartman, III and Cynthia S. Hartman, for $335,000; settlement was held the same day.

n1 The Motion to Substitute Purchaser contained a certificate of service to Charles J. Muskin, Pizza's attorney, dated June 22, 1995. The Order granting the motion was signed on the same date. The Order was docketed in the circuit court on June 28, 1996, two days after Hartman settled on the property.

[***4]

   Pizza appealed to the Court of Special Appeals on June 27, 1995. On the same day, she moved to set supersedeas bond and to stay enforcement. The Trustee opposed Pizza's motion, contending that the motion to set supersedeas bond as well as Pizza's appeal were moot because the property had been resold to a bona fide purchaser, namely Hartman. The circuit court agreed with the Trustee and ruled that the motion for stay of enforcement pending appeal was moot in light of the transfer of the subject property before Pizza had filed a bond.

   Before the Court of Special Appeals, Pizza again moved to set supersedeas bond and to stay enforcement. By an order [*669] dated August 22, 1995, the Court of Special Appeals enjoined Hartman from alienating or encumbering the property and referred the case to the Circuit Court for Anne Arundel County to set a bond. On remand, the parties agreed on a nominal bond of $1000.

   The Court of Special Appeals affirmed the judgment of the circuit court in an unreported opinion. The court concluded:
 
The trial court recognized that when the purchaser at the foreclosure sale is the mortgagee or his assignee the court will examine the sale closely to determine[***5] whether it was bona fide and proper. A sale will be set aside, furthermore, upon "slight evidence of partiality, unfairness or a want of the strictest good faith." The trial court concluded, however, that Pizza's assertions did not establish unfairness or lack of good faith in the conduct of the sale that would render the sale void. We conclude that the court's decision . . . should be affirmed. (citation omitted).
 
We granted Pizza's petition for a writ of certiorari.

   Robert Diemer owned a large, single family dwelling on a waterfront lot comprising approximately 3.6 acres with 600 feet of water frontage. The house measured over 4,300 square feet and included four bedrooms, 3 1/2 baths, a fireplace, an in-ground pool, a dock, a three car garage, a tractor garage, marble tile, hardwood floors, an alarm system, two central air conditioning units, and an oil fired hot water furnace with three zones.

   Hartman prepared a Deed of Appointment on behalf of the Bank, appointing Stefanie J. Walter, a paralegal in his law office, as Substitute Trustee. The Trustee contacted Robert Campbell, an auctioneer and professional appraiser, to conduct the sale of the property. Campbell appraised[***6] the property as having a fair market value of $625,000 and provided the Trustee with a twenty-seven page appraisal report. n2 The [*670] home and improvements were valued at $297,650.00 and accounted for approximately fifty percent of the property value; the land was valued at $296,860.00 and accounted for the other fifty percent. With Hartman's aid, the Trustee prepared the foreclosure action and legal advertisement. 

n2 Mr. Diemer testified at the trial that in his opinion, the replacement value of the property at the time of the trial would be $1,000,000. The record also reflects that Samson Financial, the third lienholder, appraised the property at $700,000.

   The legal advertisement was placed in The Annapolis Capital by the Trustee and ran once a week for three successive weeks prior to the sale. n3 The property improvements [**96] were described in the advertisement as follows: 

 n3 The Court of Appeals, by Order dated June 5, 1996, effective January 1, 1997, rescinded Subtitle W of Chapter 1100 of the Maryland Rules of Procedure and substituted Title 14. Maryland Rule W 74 required the person authorized to make the sale, in this case the Trustee, to publish notice of the time, place and terms of the sale at least once a week for three successive weeks prior to the sale in a newspaper of substantial circulation in the county where the property is located. The provisions concerning the time, place, and frequency of published notices are identical in Rule 14-206(b).

[***7] 
 
The property is improved by a waterfront single family dwelling consisting of 4 bedrooms, 3 1/2 baths, fireplace, pool, dock, and 3 car garage. 
 
The advertisement also included the address of the property and described it in the following manner: 
 
Lot Numbered One (1) in the Diemer/Pizza Minor Subdivision, as per plat thereof recorded among the Land Records of Anne Arundel County, at Plat Book 4019, at Plat 623.
 
Before the advertisement was placed in The Annapolis Capital, the auctioneer recommended to Hartman that he purchase additional advertising. Hartman refused, but passed the suggestion on to Pizza. After the advertisement was placed in The Annapolis Capital, the auctioneer received only a few telephone inquiries regarding the property. At Pizza's request, the auctioneer placed supplemental advertisements that ran on one day, the Sunday before the sale, in The Baltimore Sun and The Washington Times. The supplemental [*671] advertisement ran under the heading of "Waterfront Real Estate" and read as follows:
 
The subject property containing approximately 3.668 acres +/- contains a large one story rambler with basement with approximately[***8] 4,388 s.f. on the first floor. The residence contains a living room, dining room, kitchen, pantry, den, master suite with private bath, 3 additional bedrooms, 1 1/2 additional baths on the first floor and recreation room, bedroom, laundry/utility room, full bath, built-in 3-car garage w/tractor garage on the basement level. The residence is heated by an oil fired hot water furnace with 3-zones, cooled by two central air conditioning units, and has many amenities such as fireplace, marble tile and hardwood floors, alarm system, and many executive home extras. The property has a large concrete patio, in-ground swimming pool, storage shed, and a boat dock/pier.
 
Campbell testified at trial that during the week of the sale following the supplemental advertisements he was overwhelmed with phone inquiries, and there were more inquiries than he had ever received for any other property in the twenty-five years that he had been an auctioneer.

   The sale of the property was conducted at the courthouse door with approximately seven people present. Pizza and her attorney were present, along with a lending officer from the Bank, Hartman, the Trustee, a representative of Samson Financial, [***9] and one prospective bidder. The auctioneer was unable to secure any bids for the property, and Hartman entered the bid of $325,000, the approximate amount of the indebtedness to the Bank. Hartman's bid was the only bid; the lending officer from the Bank who was present at the sale did not bid.

   The Contract of Sale filed by the Trustee in the circuit court on March 6, 1995, was signed as follows:
 
Citizens Bank of Maryland

C. E. Hartman III

by C. Edward Hartman III

authorized agent
 
[*672] In the Affidavit of Purchaser, also dated March 6, 1995, Hartman certified:
 
1. I am the purchaser or agent of the purchaser of the property known [as] 8203 Ventnor Road, Pasadena, Anne Arundel County, Maryland.

2. The property was purchased on March 3, 1995, for the sum of $325,000.00.

3. I am acting for myself, or, if not acting for myself, the name of my principal is Citizens Bank of Maryland. n4 

n4 We note that Hartman's affidavit of purchaser does not fully comply with Rule BR 6, the rule in effect at the time. Rule BR 6.b.3(1), Affidavit by Purchaser, required that the purchaser file an affidavit setting forth "whether he is acting as agent for anyone; and if so, the name of his principal." Hartman's affidavit is ambiguous, and does not specify whether he is acting in his own capacity or as an agent for the Bank.

[***10]
 
[**97] The Affidavit of Purchaser is signed "C.E. Hartman III."

   Pizza filed exceptions to the foreclosure sale, requesting that the sale be set aside on the following grounds: first, the price for which the land was sold was inadequate; second, the property was not sufficiently advertised; and third, the Trustee was not an independent officer of the court and had loyalties adverse to the title owner of the property and to the exceptant. Pizza also noted in her exceptions that the "attorney representing the Bank is the actual purchaser of the property and this fact is not revealed to the Court."

    At the trial on the exceptions, Pizza established the fair market value of the Diemer property by presenting the testimony of Robert Campbell, the auctioneer and appraiser whom the Trustee retained to handle the sale. Campbell testified that he appraised the property as having a fair market value of $625,000 as of October, 1994. Campbell estimated that a decline in the real estate market since that time may have decreased the fair market value by approximately $15,000 to $25,000.

   Pizza presented expert testimony from Daniel Billig, of Billig Appraisal Corporation. Billig testified that[***11] an advertisement [*673] that includes the important features of the property, such as the lot size, water frontage and house amenities "[is] the difference between having a successful auction and an auction that results in a lender buy-back of the property." She also presented testimony from Trudy Stevens, a real estate agent of some twelve years in Anne Arundel County, who lives near the Diemer property. Stevens testified that The Annapolis Capital description of the property more closely described the typical Pasadena home--a 50-foot wide lot with a little cape cod or cottage-type home. She further testified that the fact that the Diemer house was on 3.6 acres was extremely important to potential purchasers. She said that "the amount of property is very important to waterfront buyers. Waterfront has become so expensive and land is at such a premium, . . . it's very difficult to get large parcels of land, first of all, and especially large parcels of waterfront land and people coming to look for waterfront are often shocked at the little amount of property that they get for their dollar." She expressed the opinion that the legal advertisement was insufficient to inform the public that [***12]this home was not typical for the area, in that this property included substantially more land, more waterfront, and a larger, more luxurious house than the typical property in the area.

   The Circuit Court for Anne Arundel County denied Pizza's exceptions. On June 26, 1995, Hartman and his wife, Cynthia, settled on the property; they paid the seller, the Trustee, $335,000 for the property.

   We shall first address the Trustee's Motion to Dismiss this appeal as moot. According to the Trustee, the appeal should be dismissed as moot because Hartman purchased the property from the successful bidder for valuable consideration and, therefore, title to the property can no longer be affected by the reversal of an order ratifying the sale. Hartman, as counsel for the Trustee, also represents in his Memorandum in support of the Motion to Dismiss that neither he nor his wife are "the alter ego of Citizen's Bank of Maryland, a publicly traded Maryland banking corporation in which they own no stock, and are not employees, officers or trustees."

   [*674] It is generally true that "the rights of a bona fide purchaser of mortgaged property would not be affected by a reversal of the order of ratification[***13] in the absence of a bond having been filed." Lowe v. Lowe, 219 Md. 365, 368, 149 A.2d 382, 384 (1959); see also Leisure Campground v. Leisure Estat., 280 Md. 220, 223, 372 A.2d 595, 598 (1977); Sawyer v. Novak, 206 Md. 80, 88, 110 A.2d 517, 521 (1955); Preske v. Carroll, 178 Md. 543, 551, 16 A.2d 291, 295 (1940); Parker v. Columbia Bank, 91 Md. App. 346, 374, 604 A.2d 521, 535, cert. denied, 327 Md. 524, 610 A.2d 796 (1992). Thus, an appeal becomes moot if the property is sold to a bona fide purchaser in the absence of a supersedeas bond because a reversal on appeal would have no effect. Lowe, 219 Md. at 369, 149 A.2d at 385. In order to enjoy this protection, the purchaser of the foreclosed property must be a bona fide purchaser. See Sawyer, [**98] 206 Md. at 89, 110 A.2d at 521. Bona fide purchaser status extends only to those purchasers without notice of defects in title, or in this case, defects in the foreclosure sale. See, e.g, Lewis v. Rippons, 282 Md. 155, 162, 383 A.2d 676, 680 (1978); Grayson v. Buffington, 233 Md. 340, 343, 196 A.2d 893, 895-96 (1964); Blondell v. Turover, 195 Md. 251, 257, 72 A.2d 697, 699 (1950); Sines v. Shipes,[***14] 192 Md. 139, 161, 63 A.2d 748, 759 (1949).

   This Court has recognized two exceptions to this general rule protecting a bona fide purchaser from reversal of the ratification of the sale in the absence of a supersedeas bond. First, a bona fide purchaser may be affected by a reversal of ratification when "there is unfairness or collusion by the purchaser in the making of the sale by the trustee." Sawyer, 206 Md. at 88, 110 A.2d at 521. Second, the rule does not apply when a mortgagee purchases at the foreclosure sale and exceptions are taken to the sale. Leisure Campground, 280 Md. at 223, 372 A.2d at 598. "This is so because a mortgagee who buys at a foreclosure sale does not free himself from the underlying dispute to which he is a party, and with the land in his hands, there is no reason why he should not be bound by a decision of the court requiring delivery of the property."  Id.

   [*675] Several of our sister states have similarly refused to find bona fide purchaser status when the subsequent purchaser of property bought at a foreclosure sale had notice of the defects of the sale. See, e.g., Fountain v. Pateman, 189 Ala. 153, 66 So. 75, 78 (Ala. 1914); Jackson v. Klein, 320 S.W.2d 553, 556[***15] (Mo. 1959); Swindell v. Overton, 310 N.C. 707, 314 S.E.2d 512, 517 (N.C. 1984); Pender v. Dowse, 1 Utah 2d 283, 265 P.2d 644, 648 (Utah 1954); Miebach v. Colasurdo, 102 Wash. 2d 170, 685 P.2d 1074, 1078-79 (Wash. 1984).

   For example, in Swindell v. Overton, 310 N.C. 707, 314 S.E.2d 512, the Supreme Court of North Carolina held that the subsequent purchasers of land that was bought at a foreclosure sale "had notice of the significant defect in the proceeding" and, accordingly, were not afforded the protections of bona fide purchasers. In Swindell, the mortgagee commenced foreclosure proceedings on two parcels of land owned by the Swindells. The Swindells, in an effort to maximize the sale price, had requested that the Trustee, Overton, sell the two parcels separately. The Trustee apparently disregarded this request and sold both parcels together, despite the separate advertisements for the two parcels, for approximately one-third of the appraised value of the land and the crops growing on the land. 314 S.E.2d at 517. The court held that the Trustee's disregard of the mortgagor's request concerning the conduct of the sale constituted a material and prejudicial irregularity warranting setting aside the sale. Id. The [***16] court also rejected the subsequent purchasers' claim that they were protected as bona fide purchasers. The court wrote:
 
The Credles [the subsequent purchasers] claim the status of "bona fide purchasers for value without any notice of irregularity." The advertisement of sale itself disclosed separate debts secured by two separate deeds of trust on two separate tracts of land. We hold that the purchasers had notice of the significant defect in the proceeding.
 
Id.

   Likewise, we conclude that Pizza's appeal is not moot. Although it is true that Hartman and the Trustee executed a [*676] Deed for the property at a time when no supersedeas bond had been posted, under the circumstances herein, Hartman cannot be considered a bona fide purchaser. The record reflects Hartman's intimate involvement at all stages of this sale and the multiple and often ambiguous roles he played throughout this transaction. He was the attorney for the mortgagee, the Bank, while at the same time performing many of the duties to be performed by the Trustee. He was intimately involved in the drafting of the legal advertisement for the sale and he declined the auctioneer's advice to buy additional advertising[***17] for the property. Hartman's role at the auction and in the proceedings thereafter is ambiguous. He bid at the sale, despite the presence of a lending officer employed by the Bank, rendering it unclear under these circumstances whether he was bidding on his own behalf or on behalf of the bank. The [**99] documents he filed with the circuit court are also ambiguous as to the capacity in which he was acting. The Contract of Sale is unclear whether Hartman signed as an individual or as agent for the Bank. The Affidavit of Purchaser also is unclear whether Hartman was acting on his own behalf or as an agent for the Bank. The affidavit states "I am acting for myself, or, if not acting for myself, the name of my principal is Citizen's Bank of Maryland." Rule BR 6 required the purchaser to specify whether he was acting as a principal or an agent, and did not permit the straddle effected by Hartman. Under any scenario, Hartman is not a stranger to the proceedings, nor is he a bona fide purchaser.

   Hartman stands in no better position than did the Bank. Given his extensive involvement with the foreclosure proceeding, his participation in preparing an inadequate advertisement, and the ambiguity as[***18] to whether he was the purchaser or agent for the purchaser, Hartman cannot be considered a bona fide purchaser for purposes of the Motion to Dismiss. See Sawyer, 206 Md. at 88-89, 110 A.2d at 521 (finding purchaser to be bona fide because, inter alia, "it is not suggested that the purchaser was responsible for the alleged [*677] defect in the advertisement"). Accordingly, the Motion to Dismiss is denied.

   We turn now to examine Pizza's contention that the sale should be set aside. Pizza contends that the property was sold for an inadequate price. The law is well settled that inadequacy of price alone, unless it indicates fraud, unfairness or some misconduct or mistake for which the purchaser should be held responsible, ordinarily is not a sufficient ground to set aside a sale. Arban v. Rogers, 262 Md. 738, 740, 279 A.2d 457, 458 (1971); Bachrach v. United Cooperative, 181 Md. 315, 322, 29 A.2d 822, 826 (1943); Ten Hills Co. v. Ten Hills Corp., 176 Md. 444, 449, 5 A.2d 830, 832 (1939); Hurlock v. Mercantile, 98 Md. App. 314, 340, 633 A.2d 438, 451, cert. denied, 334 Md. 211, 638 A.2d 752 (1993). Although inadequate price alone does not ordinarily necessitate setting [***19]aside a sale, when inadequate price is coupled with other evidence of irregularity the sale may be set aside, even if the price might not shock the conscience of the court. Long v. Worden, 148 Md. 115, 122-23, 128 A. 745, 748 (1925); see also Walker v. Williams, 218 Md. 312, 316, 146 A.2d 203, 205 (1958); Chew v. Baker, 133 Md. 637, 642, 105 A. 756, 757 (1919); Kauffman v. Walker, 9 Md. 229, 236 (1856) (holding that inadequacy of sale price--under 50% of fair market value--coupled with trustees failure to bring property fairly into the market due to deficient advertising, required vitiation of foreclosure sale); Hurlock, 98 Md. App. at 340-41, 633 A.2d at 451. "Inadequacy of price is a strong auxiliary argument in connection with circumstances which cast doubt or suspicion upon the correctness of the sale." Walker, 218 Md. at 316, 146 A.2d at 205. In this regard, this Court observed in Waters v. Prettyman, 165 Md. 70, 74, 166 A. 431, 432 (1933):
 
It is settled law of this state that inadequacy of price, standing alone, is no ground for the refusal to ratify a mortgage sale, unless the price be so grossly inadequate as to, in and by itself, indicate[***20] mistake, fraud, or unfairness in the conduct of the sale. It is equally well settled that, if inadequacy of price be coupled with any irregular or faulty [*678] advertisement or conduct in the making or manner of sale, such as indicates that the property has not been advertised or offered for sale, or sold, under conditions and circumstances that would most likely produce the largest revenue, the court will set it aside and order a resale. The test is: Was the property sold under such conditions and terms as to advertisement and otherwise, as a prudent and careful man would employ, seeking to obtain the best price for his own property. (citations omitted). 
 
Pizza further contends that the sale must be set aside because the advertisement was insufficient and prejudiced the sale. The advertisement is generally sufficient if it describes the property in a manner that enables it to be located by the exercise of ordinary intelligence. The failure to fully describe the nature and extent of improvements will vitiate the sale only upon a showing that the omission prejudiced the sale of the property. Waring v. Guy, 248 Md. 544, 548, [**100] 237 A.2d 763, 766 (1968); Brooks v. Bast, 242 Md. 350, 357, [***21] 219 A.2d 84, 88 (1966).

   Pizza further argues that the Trustee in this case failed to fulfill her obligations to Pizza as a junior lienholder. In the case of a foreclosure sale, the court is the vendor of the property and the trustee conducting the sale is considered to be an agent of the court. McCann v. McGinnis, 257 Md. 499, 505-07, 263 A.2d 536, 539-40 (1970); Fowler v. Fitzgerald, 82 Md. App. 166, 173, 570 A.2d 866, 869 (1990). In Gould v. Chappell, 42 Md. 466, 470 (1875), the Court reviewed the discretion reposed in the trustee. Our predecessors noted:
 
The discretion thus reposed in the trustees was not a mere arbitrary discretion, but a discretion coupled with a trust, and to be exercised solely for the benefit of the cestuis que trust. It was their duty, therefore, in making a sale of the property to act in a prudent and businesslike manner, with a view to obtain as large a price as might, with due diligence and attention, be fairly and reasonably obtainable under the circumstances. In other words, to exercise that diligence and caution which a careful and prudent owner would [*679] observe in the sale of his own property. If the sale[***22] be made under circumstances of haste and imprudence, or if the trustees fail in reasonable diligence in inviting competition, or adopt an injudicious and disadvantageous mode of selling the property, a Court of Equity ought not ratify the sale. (emphasis in original).
 
In Robertson Co. v. Chambers, 113 Md. 232, 238, 77 A. 287, 289 (1910), in an opinion by Judge Pattison, it was said: 
 
It was the duty of the trustee, in the sale of this property, to exercise the same degree of judgment and prudence that a careful owner would have exercised in the sale of his own property; and he was bound, for the protection of the interest of all parties concerned, to bring the property into market in such manner as to obtain a fair market price therefor. 
 
 The trustee has a duty to protect the interest of all concerned parties to the foreclosure sale and to use reasonable diligence in producing the largest revenue possible for the mortgaged property. See Carroll v. Hutton, 88 Md. 676, 679, 41 A. 1081, 1082 (1898); A. GORDON, GORDON ON MARYLAND FORECLOSURES § 20.05 (3d. ed. 1994). The trustee's duty extends to the mortgagor and persons claiming under or through the mortgagor[***23] to exercise the same degree of care that a prudent person of ordinary business judgment would use when selling property to see that the best price is obtained at the sale. Webster v. Archer, 176 Md. 245, 253-54, 4 A.2d 434, 438 (1939); Wicks v. Westcott, 59 Md. 270, 277 (1883).

   Considering all the circumstances presented herein, we shall carefully scrutinize the sale in this case. See Maryland Oil v. Kaminetz, 260 Md. 443, 450, 272 A.2d 641, 645 (1971). Although a mortgagee is entitled to purchase the property at a foreclosure sale in order to protect its interest in the foreclosed property, see Md. Code (1974, 1996 Repl. Vol.) 7-105(e) of the Real Property Article, the courts will examine the sale closely to determine whether it was proper and will exercise a greater degree of caution in passing [*680]upon the ratification of foreclosure when the sale is to the secured party. Walton v. Hospital Association, 178 Md. 446, 450-51, 13 A.2d 627, 629 (1940).
 
We are satisfied that the property was sold for an inadequate price--a sum well below the market value. The trial judge made an explicit finding that the amount received from the sale was not grossly inadequate. [***24] Indeed, Pizza has not urged this Court to find that the price received from the sale was grossly inadequate or that the sale price alone would furnish grounds to set aside the sale. Inadequacy of price, however, has been called "a strong auxiliary argument" in connection with circumstances which cast doubt or suspicion upon the fairness of the sale. Preske v. Carroll, 178 Md. 543, 550, 16 A.2d 291, 294 (1940). The question then becomes: Does this inadequacy of price, when considered in connection with all the circumstances surrounding this sale, furnish sufficient grounds for setting aside the sale? We conclude that it does. 

   [**101] We also conclude that the advertisement in this case is inadequate. Given the special characteristics of this property, protection of the interests of all the parties required that the advertisement include the acreage and the amount of waterfront--two features that the evidence showed would be of particular significance to potential bidders. The original advertisement of the sale failed to describe significant features of the property adding to the value. The advertisement should direct the attention of the public to any unique or specially important factors[***25] connected with the property having a tendency to increase the value of the property, factors that a prudent person dealing with his or her own property would not have omitted from the advertisement. See Kres v. Hornstein, 161 Md. 1, 5, 155 A. 171, 173 (1931). The property in question included 3.6 acres of waterfront property in Pasadena, an area that typically consisted of 50 foot lots improved with summer cottages. It seems unlikely that potential purchasers, after reading the advertisement, would have given the matter further consideration unless they [*681] were personally familiar with Diemer's property. It is clear that by including this information in the advertisement the number of potential purchasers would have increased. Although the supplemental advertisement that ran one time in the Baltimore Sun and the Washington Times produced many inquiries, it ran only four days before the sale. Moreover, a supplemental advertisement cannot cure a defective legal advertisement.  Ten Hills Co., 176 Md. at 452, 5 A.2d at 833.

   Of course, not every irregularity or deficiency in the advertising will void the sale. There can be no arbitrary rule of thumb for determining in a given [***26]case whether the description of the property in the legal advertisement sufficiently informs the buying public of the property, but that question must necessarily be decided upon the facts and circumstances of each case. Ten Hills Co., 176 Md. at 450-51, 5 A.2d at 833.

   We also agree with Pizza that the Trustee in this case failed to fulfill her obligation to ensure that the sale was conducted so as to maximize the price received for the property. See Gould, 42 Md. at 470. The trustee is bound to exercise the same degree of care, diligence and judgment in selling the property that a prudent person of ordinary business experience would exercise in selling his or her own property to the best advantage. Ten Hills Co., 176 Md. at 454, 5 A.2d at 835 (citing Webster v. Archer, 176 Md. 245, 4 A.2d 434 (1939)).

   After careful scrutiny, we hold that, based on the particular facts of this case, the Court of Special Appeals erred in affirming the circuit court's ratification of the foreclosure sale.
 
JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED. CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO REVERSE THE JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AND TO [***27]  REMAND IT TO THAT COURT FOR FURTHER PROCEEDINGS IN ACCORDANCE WITH THIS OPINION. COSTS IN THIS COURT AND THE COURT OF SPECIAL APPEALS TO BE PAID BY RESPONDENT. 

STATE OF MARYLAND v. DAVID EDWARD ROSE 
No. 80, September Term, 1995
 
COURT OF APPEALS OF MARYLAND
 
345 Md. 238; 691 A.2d 1314; 1997 Md. LEXIS 37

 April  8, 1997, Filed

   PRIOR HISTORY: [***1] Certiorari to the Court of Special Appeal (Circuit Court for  Anne Arundel  County). Lawrence H. Rushworth, JUDGE.

DISPOSITION: JUDGMENT OF THE REVERSED. CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO AFFIRM THE JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY. RESPONDENT TO PAY COSTS.

CORE TERMS:  intelligent, jury instruction, reasonable doubt, waived, direct appeal, reasonable doubt instruction, failure to object, procedural default, Maryland Post Conviction Procedure Act, criminal trial, intelligently, knowingly, tactical, inaction, beyond a reasonable doubt, failure to raise, leave to appeal, intermediate, instituted, waive, tactical decision, knowing waiver, normally, jurors, waiver provision, burden of proof, objected, personally, subtitle, cup

COUNSEL: ARGUED BY Ann N. Bosse, Assistant Attorney General, (J. Joseph Curran, Jr., Attorney General, on brief) of Baltimore, MD, FOR PETITIONER.
 
ARGUED BY Daniel H. Ginsburg (Mary Ann Berlin, on brief) of Baltimore, MD, FOR RESPONDENT.

JUDGES: ARGUED BEFORE * Murphy, C.J.; Eldridge, Rodowsky, Chasanow, Karwacki, Bell, and Raker, JJ. Opinion by Eldridge, J. 

* Murphy, C.J., now retired, participated in the hearing and conference of this case while an active member of this Court; after being recalled pursuant to the Constitution, Article IV, Section 3A, he also participated in the decision and the adoption of this opinion. 

[***2]

OPINIONBY: ELDRIDGE

OPINION:  
[*239] [**1314] Opinion by Eldridge, J.
  
This case requires us once again to consider the waiver provision of the Maryland Post Conviction Procedure Act, Maryland Code (1957, 1992 Repl. Vol.), Article 27, § 645A(c). The issue is whether an argument concerning the validity of a reasonable doubt jury instruction, when the instruction was not objected to and the argument was not made at a prior opportunity, has been waived.

   I.

   In April 1982, following a jury trial in the Circuit Court for Anne Arundel County, the defendant-respondent, David Edward Rose, was convicted of the first degree murder of [*240] Virginia Pollard and sentenced to life imprisonment. At Rose's trial, the court gave the following jury instruction concerning the "reasonable[***3] doubt" standard (emphasis added):
[**1315]  
"You may hear the phrase 'beyond a reasonable doubt.' I may use it. Counsel may use it. But you have to understand what we mean by 'beyond a reasonable doubt.' 'Beyond' generally means more than or further than.
 
"You use the phrase 'the ship is beyond the horizon.' You mean that it is further than the horizon. Or if I try to put a gallon of water in this cup, it's beyond the capacity of the cup, meaning that it is more than the capacity of the cup.
 
"That's the dictionary definition of the preposition 'beyond.' Now when we say that the State has to prove something beyond a reasonable doubt, it doesn't mean that the State has to prove it more than a reasonable doubt or further than a reasonable doubt.
 
"That's an improper interpretation [of the] phrase. The State has to prove it to the exclusion of a reasonable doubt. And they have to do this with each and every element of the offense for which the defendant is charged so that you're convinced that the defendant is guilty of the offense to the exclusion of a reasonable doubt and to a moral certainty."
 
Rose's attorney made no objection to this instruction.

   Thereafter, [***4] Rose timely appealed to the Court of Special Appeals, which affirmed his conviction and sentence in an unreported opinion. Although he made several allegations of error, Rose did not challenge the accuracy of the reasonable doubt instruction given at his trial. n1 A petition for a writ of certiorari filed by Rose in this Court was denied. As in his [*241] direct appeal to the intermediate appellate court, Rose failed to raise any issue concerning the reasonable doubt instruction.

n1 Rose raised the following issues in his direct appeal to the Court of Special Appeals: (1) whether his motions for a directed verdict on the issue of insanity at the conclusion of the State's case-in-chief and for judgment of acquittal at the close of trial were erroneously denied by the trial court; (2) whether the trial court abused its discretion in allowing the testimony of a rebuttal witness; (3) whether his motion to suppress certain evidence was erroneously denied; and (4) whether the trial court erroneously permitted a lay person to testify as to his sobriety.

[***5]

   In October 1985, Rose filed his first petition for post conviction review in accordance with the provisions of the Maryland Post Conviction Procedure Act, alleging as his sole ground for relief that he was denied the effective assistance of counsel at his trial. The petition was denied by the Circuit Court for Anne Arundel County, and the Court of Special Appeals denied Rose's application for leave to appeal that decision.
 
The instant post conviction petition, and Rose's second, was filed in January 1994 in the Circuit Court for Anne Arundel County. In it, Rose alleged for the first time that the reasonable doubt instruction given at his trial was constitutionally deficient, depriving him of his constitutional right not to be convicted by less than proof "beyond a reasonable doubt." In addition, he argued that a valid waiver of his complaint concerning the reasonable doubt instruction required his "intelligent and knowing" relinquishment of the right, and could not be based on his or his attorney's silence or failure to raise the issue previously.

   The State, on the other hand, contended that the right to an accurate reasonable doubt jury instruction does not require an "intelligent[***6] and knowing" waiver by the defendant personally. The State argued that the requirements for waiver of a reasonable doubt jury instruction are the same as those for waiver of any other jury instruction in a criminal case, and that Rose's failure to object to the instruction at trial, or raise the issue on direct appeal, or raise it in his first post conviction petition, constituted a waiver of the issue.

   Following a hearing, the circuit court issued an opinion and an order denying post conviction relief. The court found that "the issue raised in this petition [was] not raised at the trial, on appeal, at the prior post conviction hearing or any prior proceeding." Therefore, the court concluded that Rose's allegation had been waived.

   Rose then filed an application for leave to appeal the circuit court's decision. The Court of Special Appeals, in an unreported [*242] opinion, granted the application and reversed the judgment of the circuit court. The intermediate appellate court held that the reasonable doubt instruction given at Rose's trial [**1316] was constitutionally deficient, and that, "by instructing the jury that the term 'beyond' had no meaning, the trial judge placed a lesser burden of[***7] proof upon the State than the law requires."

   The Court of Special Appeals then addressed the State's argument that Rose had waived his complaint concerning the instruction's constitutionality by failing to object to the instruction at trial or raise the issue at an earlier opportunity. The court recognized that different standards for waiver exist in the post conviction context, namely the classic Johnson v. Zerbst n2  standard of an "intelligent and knowing" waiver and the standard of waiver by inaction, tactical decision or procedural default. The Court of Special Appeals framed the issue as "whether the right to . . . a correct reasonable doubt instruction . . . involves a fundamental . . . or a non-fundamental right," noting that this Court has held that the right to a correct reasonable doubt instruction "is constitutionally mandated by the due process clause of the Fourteenth Amendment . . . and is an indispensable component of every criminal proceeding." Wills v. State, 329 Md. 370, 375, 620 A.2d 295, 297 (1993), quoting In re Winship, 397 U.S. 358, 361-364, 90 S. Ct. 1068, 1071-1073, 25 L. Ed. 2d 368 (1970). The appellate court reasoned that, because this important[***8] right was derived from the Constitution, it was a "fundamental" right and that "intelligent and knowing" action by the defendant was required for a waiver to occur. Because the circuit court had applied the standard of waiver by inaction, rather than the "intelligent and knowing" standard, the intermediate appellate court vacated the judgment and remanded the case for reconsideration by the circuit court under the intelligent and knowing standard for waiver.

n2 304 U.S. 458, 464, 58 S. Ct. 1019, 1023, 82 L. Ed. 1461, 1466 (1938).

   [*243] The State then filed in this Court a petition for a writ of certiorari which we granted. In the petition, the State asserted that the Court of Special Appeals had applied an erroneous standard for waiver in holding that Rose had not waived his complaint concerning the reasonable doubt jury instruction. The State, however, did not challenge the intermediate appellate court's determination that the instruction violated constitutional requirements. Therefore, that issue is not before us. [***9] See Maryland Rule 8-131(b)(1).

   II.

   The principal subsection of the Maryland Post Conviction Procedure Act relating to waiver, Art. 27, § 645A(c), states as follows:
 
"(c) When allegation of error deemed to have been waived. -- (1) For the purposes of this subtitle, an allegation of error shall be deemed to be waived when a petitioner could have made, but intelligently and knowingly failed to make, such allegation before trial, at trial, on direct appeal (whether or not the petitioner actually took such an appeal), in an application for leave to appeal a conviction based on a guilty plea, in any habeas corpus or coram nobis proceeding actually instituted by said petitioner, in a prior petition under this subtitle, or in any other proceeding actually instituted by said petitioner, unless the failure to make such allegation shall be excused because of special circumstances. The burden of proving the existence of such special circumstances shall be upon the petitioner.
 
"(2) When an allegation of error could have been made by a petitioner before trial, at trial, on direct appeal (whether or not said petitioner actually took such an appeal), in an application for leave[***10] to appeal a conviction based on a guilty plea, in any habeas corpus or coram nobis proceeding actually instituted by said petitioner, in a prior petition under this subtitle, or in any other proceeding actually instituted by said petitioner, but was not in fact so made, there shall be a rebuttable presumption that said petitioner intelligently and knowingly failed to make such allegation."

   [*244] This Court reviewed § 645A, and particularly subsection (c), in Curtis v. State, 284 Md. 132, 395 A.2d 464 (1978). In Curtis, after examining the language, history and purpose of § 645A, and several prior cases in this Court interpreting the statute, we held as follows (284 Md. at 149-150, 395 A.2d at 474):
 
[**1317] "The Legislature, when it spoke of 'waiver' in subsection (c) of Art. 27, § 645A, was using the term in a narrow sense. It intended that subsection (c), with its 'intelligent and knowing' standard, be applicable only in those circumstances where the waiver concept of Johnson v. Zerbst and Fay v. Noia [372 U.S. 391, 83 S. Ct. 822, 9 L. Ed. 2d 837 (1963)] was applicable. Other situations are beyond the scope of subsection (c), to be governed by case law or any pertinent[***11] statutes or rules. Tactical decisions, when made by an authorized competent attorney, as well as legitimate procedural requirements, will normally bind a criminal defendant."
 
This interpretation of Art. 27, § 645(c), has been reaffirmed on numerous occasions. See, e.g., Hunt v. State, 345 Md. 122, 691 A.2d 1255 (1997); Walker v. State, 343 Md. 629, 642-643, 684 A.2d 429, 435-436 (1996); Oken v. State, 343 Md. 256, 270-272, 681 A.2d 30, 37-39 (1996), cert. denied,     U.S.    , 117 S. Ct. 742, 136 L. Ed. 2d 681 (1997); McElroy v. State, 329 Md. 136, 140-142, 147-149, 617 A.2d 1068, 1070-1071, 1073-1075 (1993); Trimble v. State, 321 Md. 248, 259, 582 A.2d 794, 799 (1990); State v. Romulus, 315 Md. 526, 539-540, 555 A.2d 494, 500 (1989); Martinez v. State, 309 Md. 124, 141, 522 A.2d 950, 958-959 (1987); State v. Calhoun, 306 Md. 692, 702-704, 511 A.2d 461, 465-467 (1986), cert. denied, 480 U.S. 910, 107 S. Ct. 1339, 94 L. Ed. 2d 528 (1987).

   Most recently, in Hunt v. State, supra, 345 Md. at 138, 691 A.2d at 1262, Judge Karwacki for the Court summarized our holding in Curtis, stating:
 
"The nature of the right involved will determine[***12] whether the decision is governed by Art. 27, § 645A(c), or pertinent case law, statutes, or rules. On the one hand, if a defendant's claim [*245] [encompasses] that narrow band of rights that courts have traditionally required an individual knowingly and intelligently relinquish or abandon in order to waive the right or claim . . ., the failure to do so knowingly and intelligently will not preclude raising the matter on post-conviction review. Courts, however, do not apply the same standard of waiver to 'the vast array of trial decisions, strategic and tactical, which must be made before and during trial.'" (citations omitted).
 
Just last year, in Oken v. State, supra, 343 Md. at 270-271, 681 A.2d at 37, Judge Raker for the Court stressed that the Post Conviction Procedure Act "does not require application of the 'intelligently and knowingly' standard of waiver to every . . . right," and that, "in Curtis, we recognized the potential for chaos if every time counsel made a tactical decision or a procedural default the 'intelligently and knowingly' waiver standard was triggered."

   Rose concedes that neither he nor his attorney made any objection to the instruction or raised[***13] the issue of the jury instruction's validity prior to the filing of his second petition for post conviction relief. Rose contends, however, that the right to a correct reasonable doubt jury instruction, a concept embodied in the due process clauses of the federal and state constitutions, is "among those rights . . . intended to preserve the fairness of a criminal trial and . . . enhance the reliability of its truth-determining function" and thus requires a Johnson v. Zerbst-type waiver. Consequently, according to Rose, the waiver provision of Art. 27, § 645A(c), is applicable in the present case, and his failure to object to or challenge the jury instruction cannot serve as a basis for a waiver. Instead, the argument continues, "intelligent and knowing" action by Rose was required before the matter may be deemed waived. We disagree.

   The general rule is that the failure to object to a jury instruction at trial results in a waiver of any defects in the instruction, and normally precludes further review of any claim of error relating to the instruction. See Maryland Rule [*246] 4-325(e). n3 See also Walker v. State, supra, 343 Md. at 645, 684 A.2d 429 ("the failure to object to[***14] a jury instruction ordinarily constitutes a waiver of [**1318] any later claim that the instruction was erroneous"), and the cases there cited. 

n3 Maryland Rule 4-325(e) states, in pertinent part:
 
"(e) Objection. -- No party may assign as error the giving or the failure to give an instruction unless the party objects on the record promptly after the court instructs the jury, stating distinctly the matter to which the party objects and the grounds of the objection."

   Moreover, we have consistently held that the failure to object or otherwise challenge an allegedly deficient jury instruction constitutes a waiver of the issue for purposes of the Maryland Post Conviction Procedure Act. In Davis v. State, 285 Md. 19, 400 A.2d 406 (1979), we addressed whether the intelligent and knowing waiver standard of § 645A(c) was applicable, in a post conviction proceeding, to a concededly erroneous jury instruction requiring a defendant to "conclusively" establish his alibi. Although the defendant argued that the incorrect[***15] instruction relieved the prosecution of its burden of proving criminal agency beyond a reasonable doubt, neither the defendant nor his attorney had objected to the instruction at trial, or challenged it on direct appeal or in an earlier post conviction proceeding. After reviewing the principles set forth in Curtis v. State, supra, Judge Orth for the Court stated in Davis, 285 Md. at 33-35, 400 A.2d at 413-414:
 
"It is patent from our comprehensive discussion in Curtis leading to [the] determination of legislative intent, 284 Md. at 141-150 [395 A.2d 464], that the waiver concept of Johnson v. Zerbst . . . is not applicable to the advisory jury instruction here.

    * * *
 
"The short of it is that we found in Curtis . . . that 'it [was] clear that a "procedural default" in certain circumstances, even where a defendant may personally have been without knowledge or understanding of the matter, may result in his being precluded from asserting important rights . . . . A defendant may forego a broad spectrum of rights which are [*247] deemed to fall within the category of tactical decisions by counsel or involve procedural defaults.' 284 Md. at 147 [395 A.2d 464].[***16] The right to a correct jury instruction in the circumstances of the instant case falls within the category involving procedural defaults. Thus, the waiver concept of Johnson v. Zerbst . . . was not applicable, and, therefore, the provisions of subsection (c) were not applicable."

   Most recently, in Walker v. State, supra, we addressed whether a defendant had waived his allegations of error pertaining to a jury instruction explaining the intent element of the statutory crime of assault with intent to murder. There, as in the present case, the defendant failed to object to the jury instruction at trial, and also failed to raise the issue on direct appeal or in two later petitions for post conviction relief. This Court concluded that the instructional error asserted by Walker did not require an "intelligent and knowing" waiver and had been waived by the failure of either Walker or his attorney to object to the instruction at trial. In so concluding, we pointed out that "we have consistently held that the failure to object to or otherwise challenge a jury instruction constitutes a waiver of the issue for purposes of the Maryland Post Conviction Procedure Act." 343 Md. at 645-647, [***17] 684 A.2d at 437-438, and cases there cited.
 
Rose, however, strenuously argues that claims of error concerning defective reasonable doubt instructions, as opposed to other types of jury instructions, "plainly concern 'basic rights of a constitutional origin' . . . intended to preserve the fairness of a criminal trial and to enhance the reliability of the truth-determining function" to which the Johnson v. Zerbst "intelligent and knowing" waiver standard has been historically applied. Thus, in his view, deficient reasonable doubt instructions constitute "errors of constitutional magnitude," and require an intelligent and knowing waiver by the defendant.

   Nevertheless, most rights applicable in criminal trials are important to ensure the fairness of the criminal trial. Moreover, our decision in Curtis v. State, supra, clearly recognized [*248] that an intelligent and knowing relinquishment of a right is not required for a waiver of that right to occur simply because the right is of constitutional origin. There, we listed and discussed in detail several constitutional rights that could be waived by the tactical decisions of counsel or by procedural default. Curtis v. State, supra, [***18] [**1319] 284 Md. at 145-147, 395 A.2d at 471-473. n4 

n4  See, e.g., Francis v. Henderson, 425 U.S. 536, 96 S. Ct. 1708, 48 L. Ed. 2d 149 (1976) (defendant's failure to raise issue of grand jury's racial composition constituted procedural default resulting in waiver by inaction); Estelle v. Williams, 425 U.S. 501, 96 S. Ct. 1691, 48 L. Ed. 2d 126 (1976) (constitutional right not to be tried in prison clothes may be waived by defendant's failure to object or otherwise raise the issue); Schneckloth v. Bustamonte, 412 U.S. 218, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973) (voluntary consent to search waives Fourth Amendment right against unreasonable searches and seizures).

   Our cases make it clear that, simply because an asserted right is derived from the Constitution of the United States or the Constitution of Maryland, or is regarded as a "fundamental" right, does not necessarily make the "intelligent and knowing" standard of waiver applicable. Rather, most rights, whether constitutional, statutory or common-law, may[***19] be waived by inaction or failure to adhere to legitimate procedural requirements. For example, in Davis v. State, supra, the defendant alleged that the alibi jury instruction given at his criminal trial improperly allocated the burden of proof and thus violated constitutional due process requirements. Nevertheless, this Court refused to apply the "intelligent and knowing" standard for waiver, and held that the defendant's allegation had been waived by the failure to object to the instruction at trial or raise the issue on direct appeal. Davis v. State, supra, 285 Md. at 33-35, 400 A.2d at 413-414. We have similarly refused to apply the "intelligent and knowing" standard to other constitutional or "fundamental" rights. See, e.g., Oken v. State, supra, 343 Md. at 271-272, 681 A.2d at 37-38 (holding that the right to voir dire prospective jurors in a capital case to identify jurors who harbor convictions in support of the death penalty may be relinquished by the failure to raise the issue on direct appeal); Trimble v. State, supra, 321 [*249] Md. at 257-259, 582 A.2d at 799 (failure to object to jurors "who did not seem impartial"); Foster, Evans and Huffington v. State, [***20] 305 Md. 306, 314-316, 503 A.2d 1326, 1331 (finding a waiver of alleged error pertaining to jury instructions explaining the burden of proof in capital sentencing proceedings). We are not aware of any decision by the United States Supreme Court or this Court holding that an issue involving the validity of a reasonable doubt instruction, not objected to at trial or raised on direct appeal, may nevertheless be raised for the first time in a post conviction proceeding unless there was an intelligent and knowing waiver by the defendant personally.

   There are also significant practical considerations that militate strongly against the application of the "intelligent and knowing" waiver standard to defects in jury instructions, including those involving the concept of reasonable doubt. An attorney may have valid, tactical reasons for not interposing an objection to an inaccurate reasonable doubt jury instruction. Nevertheless, in Rose's and the Court of Special Appeals' view, there could be no waiver unless, at the jury instruction stage of the criminal trial, the proceedings were interrupted, the jury excused, and the defendant subjected to a litany of questions designed to inform the[***21] defendant of the right to an accurate reasonable doubt instruction and to ascertain whether the defendant wished to object to the instruction offered at trial or to waive any objection concerning the instruction. In Curtis, 284 Md. at 149, 395 A.2d at 474, we stated:

   "If, in defining 'waiver' for purposes of the Post Conviction Procedure Act, the General Assembly intended to make subsection (c), with its "intelligent and knowing" definition, applicable every time counsel made a tactical decision or a procedural default occurred, the result could be chaotic. For example, under such an interpretation . . . for a criminal defendant to be bound by his lawyer's actions, the lawyer would have to interrupt a trial repeatedly and go through countless litanies with his client."
 
[*250] Similarly, in Williams v. State, 292 Md. 201, 218, 438 A.2d 1301, 1309, we observed:

   "Today, with the complexity of many criminal trials and the absolute right of counsel if there is a danger of incarceration, our system proceeds upon the assumption that it is primarily counsel's function to assert or waive most 'rights' of the defendant. Unless a defendant speaks [**1320] out, normally he must be bound by the[***22] trial decisions, actions and inactions of counsel. Otherwise, the system simply would not work."
 
It is clear that the accused's attorney must determine whether to object to most incidents that occur during the course of a criminal trial, including the instructions to the jury.

   Moreover, the position advocated by Rose and the Court of Special Appeals would allow defense attorneys to remain silent in the face of the most egregious and obvious instructional errors at trial. Any resulting conviction would always be vulnerable to challenge because of the absence of an "intelligent and knowing" waiver by the defendant himself.
 
Consequently, the Court of Special Appeals erred in holding that the "intelligent and knowing" waiver standard is applicable to alleged deficiencies in reasonable doubt jury instructions. Allegations of this type may be effectively waived by the failure of the defendant or his attorney to object at trial or their failure to raise the issue on direct appeal. There was a waiver of the jury instruction issue in this case.
 
JUDGMENT OF THE REVERSED. CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO AFFIRM THE JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL [***23]  COUNTY. RESPONDENT TO PAY COSTS. 

                       
LARRY G. TAYLOR v. ALVIN E. FRIEDMAN et al. 
No. 2, September Term, 1996
 
COURT OF APPEALS OF MARYLAND
 
344 Md. 572; 689 A.2d 59; 1997 Md. LEXIS 12

 February  13, 1997, Filed

   PRIOR HISTORY: [***1] Certiorari to the Court of Special Appeals (Circuit Court for  Anne Arundel  County). County Case # C-9413957 FC. Martin A. Wolff, JUDGE.

DISPOSITION: JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED. CASE REMANDED TO THAT COURT FOR THE ENTRY OF A JUDGMENT REVERSING THE JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AND REMANDING THIS ACTION TO THAT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID BY THE RESPONDENT, BANK OF AMERICA, F.S.B.

CORE TERMS:  lender, inspection, inspection fees, grantor, deed of trust, counterclaim, mortgagee, subtitle, mortgagor, appraisal, repairs, foreclosure, borrower, default, vacant, visual inspection, completion, ascertain, occupant, occupied, insured, coverage, residential real property, escrow account, regulation, alterations, designated, charging, elected, legislative history

COUNSEL: ARGUED BY Don Charles Uthus of Annapolis, MD FOR PETITIONER.
 
ARGUED BY Kenneth J. MacFadyen (James J. Loftus, Friedman & MacFadyen, P.A., on brief) of Baltimore, MD FOR RESPONDENTS.

JUDGES: ARGUED BEFORE Bell, C.J. Eldridge, Rodowsky, Chasanow, Karwacki, Raker, Murphy, Robert C. (retired, specially assigned), JJ.

OPINIONBY: RODOWSKY

OPINION: [*574]  
[**60] Opinion by Rodowsky, J.

   This case arises on a counterclaim to the foreclosure of a deed of trust. The issue is whether Maryland Code[***2] (1975, 1990 Repl. Vol.), § 12-121 of the Commercial Law Article (CL) prohibits a mortgagee from charging the mortgagor fees for post-default, visual inspections of the mortgaged residence's exterior that are made to ascertain the condition of the security. Section 12-121 reads:
  
"Lender's inspection fees.

   "(a) Defined. -- In this section, the term 'lender's inspection fee' means a fee imposed by a lender to pay for a visual inspection of real property.

   "(b) Imposition. -- Except as provided in subsection (c) of this section, a lender may not impose a lender's inspection fee in connection with a loan secured by residential real property.

   "(c) When permitted. -- A lender's inspection fee may be charged if the inspection is needed to ascertain completion of:

   "(1) Construction of a new home; or
 
"(2) Repairs, alterations, or other work required by the lender.

   "(d) Applicability of section to appraisals. -- This section does not apply to an appraisal of the value of real property by a lender or to fees imposed in connection with an appraisal."

   The deed of trust on the residence involved in this case was executed on April 29, 1986. Larry G. Taylor (Taylor), [***3] the petitioner, acquired the property on October 30, 1987, and assumed his grantor's obligations under the deed of trust. The respondents are substitute trustees under the deed of trust who were designated by Margaretten & Company, Inc., the holder of the note secured by the deed of trust when the [*575] foreclosure was instituted. Margaretten & Company, Inc. subsequently was acquired by Bank of America, F.S.B. and renamed BA Mortgage, a division of Bank of America, F.S.B. We shall refer to the entity that held the note at any given time as "Lender." The loan, which was originally for $70,500, was insured under the National Housing Act.

   From time to time Taylor was delinquent in making the monthly payments on the note. When a delinquency continued for more than forty-five days from the due date, Lender caused the property to be inspected by an independent organization and charged Taylor's account $10.00 as an inspection fee on each such occasion. Taylor did not believe that the charges were part of his contract and protested them, but Lender took the position that the charges were lawful. Then Taylor discovered CL § 12-121. In April and July 1993 Taylor wrote to Lender, pointing out[***4] that the inspection charges were illegal and carried criminal penalties, n1 and he requested a refund of all such fees that he had paid. When Lender either did not respond, or did not respond to Taylor's satisfaction, he stopped making any payments on the loan.

n1 Under CL § 12-122 a willful violation of § 12-121 carries a fine not exceeding $500 or imprisonment not exceeding six months, or both.

   Eventually Lender instituted foreclosure in the Circuit Court for Anne Arundel County on July 5, 1994, after Taylor had failed to make any payments following the September 1, 1993 payment. This default caused Lender to have the property inspected in December 1993 and in April, May, June, and July 1994. The total of $50 for these inspections was charged to Taylor in the statement of mortgage debt filed with the foreclosure papers. The parties advised us at oral argument that, from the time when Taylor assumed the deed of trust obligations, approximately $180 had been charged against his account for inspection fees. [***5]

   Lender caused the inspections to be made in order to comply with the "Protection and Preservation Fee Schedule" promulgated by Region III of the United States Department [*576] of Housing and Urban Development (HUD). The schedule effective January 15, 1993, (the Schedule) states that "mortgagees are expected to exercise the same level of diligence and prudence in protecting and preserving vacant FHA insured properties that would be provided if they could look only to the security [**61] for recovery." Schedule at 1. The inspections of the type ordered by the Lender in this case are addressed in the Schedule as follows:

   "When a mortgage is in default and a payment is not received within 45 days of the due date, and efforts to reach the mortgagor by telephone or other means within that period have proven unsuccessful, the mortgagee shall make a visual inspection of the property to determine occupancy status.

   ....

   "If the property is occupied, the mortgagee should continue to try to make contact with the mortgagor or occupant each month by telephone or through correspondence. If the mortgagee is unable to contact the mortgagor or occupant by any other means, the property should be reinspected within[***6] 30 days of the last inspection or last documented contact with the mortgagor or occupant."
 
Schedule at 2-3.

   Fifteen dollars is the "maximum fee for all inspections (initial, vacant and occupied) ... for a single family property ...." Schedule at 14. Inspection fees, up to the maximum allowable, are reimbursable to the mortgagee by HUD if the inspection is necessary, i.e., when it cannot be established by other means whether the property is occupied. The Schedule provides that "the mortgagee must inspect a vacant or abandoned property every 30 days when a loan is in default to determine whether protection and preservation action is necessary." n2 Schedule at 3.

n2 In the instant matter, Lender's representative testified that the December 1993 report indicated "that the property was occupied by the mortgagor according to the mailbox," while the reports in the spring and summer of 1994 stated that the occupant was unknown, per visual inspection.

 
   [*577] Taylor, acting pro se, intervened in the foreclosure[***7] proceeding and filed a counterclaim, asserting, inter alia, that Lender had breached the loan contract by unlawfully assessing inspection fees in violation of CL § 12-121. At the same time Taylor paid into the registry of the court $7,241.70 which he calculated to be the full amount owed to Lender with the exception of the disputed inspection fees. Taylor also petitioned for, and obtained, an injunction against the foreclosure. In August 1994 Lender drew down the funds paid into court, with accumulated interest, and, on December 14, 1994, trial was had on Taylor's counterclaim, resulting in judgment for the counterclaim defendants.

   The circuit court ruled that the prohibition of the statute was limited to inspection fees that were assessed as part of closing costs. The statute on which the circuit court based its ruling was CL § 12-1027 (1996 Cum. Supp.) that was enacted after § 12-121. n3 In Part I, infra, of this opinion we address how this case veered off to CL § 12-1027, and we address the interrelationship between that statute and CL § 12-121. In construing CL § 12-1027 the circuit court was persuaded by the short title, namely, "Housing--Real Property Closing [***8][*578] Costs," of Chapter 628 of the Acts of 1986 which enacted CL § 12-121, the earlier of the two, substantially similar statutes. 

n3 CL § 12-1027 (1996 Cum. Supp.) reads as follows:

   "(a) Definition. -- In this section, 'lender's inspection fee' means a fee imposed by a credit grantor to pay for a visual inspection of residential real property.

   (b) Not imposed. -- Except as provided in subsection (c) of this section, a credit grantor may not impose a lender's inspection fee in connection with a loan made to a consumer borrower that is secured by residential real property.

   (c) Imposed. -- A lender's inspection fee may be imposed on a consumer borrower if the inspection is needed to ascertain completion of:

   (1) Construction of a new home; or
 
(2) Repairs, alterations, or other work required by the credit grantor.

   (d) Appraisals. -- This section does not apply to an appraisal of the value of real property by a credit grantor or to fees imposed in connection with an appraisal."

   Taylor noted[***9] an appeal to the Court of Special Appeals from the judgment denying his counterclaim. In that court he briefed the matter pro se. The Court of Special Appeals, in an unreported opinion, affirmed the circuit court, agreeing that CL § 12-1027, construed in the light of its purpose, [**62]was limited to closing costs. n4 We granted Taylor's petition for certiorari that was prepared by his present appellate counsel.

n4 The circuit court had alternatively ruled, based on Taylor's testimony that he no longer lived in the house but had rented it to a tenant, that Taylor had no standing to invoke CL § 12-1027. Lender did not brief this ground in the Court of Special Appeals as an alternative basis for supporting the judgment of the circuit court, and the issue was not raised by Lender in a conditional cross-petition for certiorari. Accordingly, we intimate no opinion on the construction of the statute implicit in the circuit court's alternate ground of decision.

   Approximately three months after the decision by the Court[***10] of Special Appeals in the instant matter, Lender dismissed without prejudice the foreclosure action against the property. At oral argument we were advised that Taylor had sold the property. n5 

n5 It appears that there was no final judgment in the action when Taylor noted his appeal to the Court of Special Appeals. The Lender's foreclosure proceeding is considered as a claim and Taylor's counterclaim is a counterclaim in the same action. Fairfax Savings, F.S.B. v. Kris Jen Ltd. Partnership, 338 Md. 1, 21-22, 655 A.2d 1265, 1274-75 (1995). Taylor appealed only the judgment on the counterclaim at a time when the claim was still pending on the docket. On our own initiative, however, we enter a final judgment on the counterclaim. Maryland Rule 8-602(e)(1)(C).

   I

   In his argument to the circuit court Taylor thought that § 12-121 had been amended and that it was "now called 12-1027." His brief in this Court describes § 12-1027(b) to have been "previously designated as" § 12-121(b). Brief of Appellant at 2 n.1. There[***11] are in fact two separate statutes [*579]dealing with the same subject matter in substantially the same way.

   CL § 12-121 was initiated by the Report of the Task Force on Real Property Closing Costs (the Commission) that had been created by Governor Harry R. Hughes and that reported in January 1986. The bill proposing certain legislation recommended by that Commission was enacted by Chapter 628 of the Acts of 1986.

   By Chapter 143 of the Acts of 1983 the General Assembly had enacted the Credit Deregulation Act of 1983 (CDA). Among its provisions are CL Title 12, Subtitle 9, "Credit Grantor Revolving Credit Provisions" (OPEC), dealing with open end credit, and CL Title 12, Subtitle 10, "Credit Grantor Closed End Credit Provisions" (CLEC), dealing with closed end credit. When the legislation proposed by the Commission was drafted, introduced, and enacted, the various provisions were designated for codification solely as part of Subtitle 1 of Title 12, without duplicating some or all of the proposals in OPEC or in CLEC. n6 

n6 It is today only of academic interest whether this codification decision was prompted by the belief that the provisions of CL § 12-121, for example, would also be applicable to credit grantors who elected CLEC, because CLEC did not address inspection fees one way or the other. It seems clear in light of subsequent developments that the General Assembly did not intend credit grantors to be able to avoid the prohibitions of CL § 12-121 by electing to do business under CLEC.

[***12]

   In 1992 this Court's decision in Biggus v. Ford Motor Credit Co., 328 Md. 188, 613 A.2d 986, analyzed the interrelationship between CLEC and the Retail Installment Sales Act, CL Title 12, Subtitle 6. Biggus pointed out that, under the language of the CDA, there could be provisions in CL Title 12, other than in OPEC and CLEC, that could apply to credit grantors who elected coverage under those subtitles.

   As a direct result of Biggus, the General Assembly amended OPEC and CLEC by Chapter 404 of the Acts of 1993. These amendments specifically provide that, under certain circumstances, provisions of certain other subtitles of CL Title 12, [*580] including Subtitle 1, do not apply to extensions of credit under OPEC and CLEC. See CL (1996 Cum. Supp.), §§ 12-913, 12-913.1, 12-1013, and 12-1013.1.

   Before the General Assembly could shut the door on the application of provisions in certain other subtitles of Title 12 to credit grantors who elected OPEC or CLEC, it was necessary for the General Assembly first to determine which provisions in those other subtitles were intended to apply to credit grantors electing OPEC or CLEC and then [**63] to add those provisions to OPEC and CLEC. Falling[***13] within this class was § 12-121's prohibition against inspection fees. The substance of that statute was added in 1993 to CLEC by Chapter 404 as § 12-1027.

   In the instant matter the deed of trust that Taylor assumed is a preprinted form document that was apparently drafted in 1982, prior to the enactment of the CDA. We do not find any election of CLEC in this deed of trust. Nor has Lender undertaken to show that the extension of credit to Taylor's grantor was made pursuant to CLEC. Compare CL (1996 Cum. Supp.) § 12-1013.1(c). Thus, the applicable section in the instant case is § 12-121, and, in Part II, infra, we shall recast the parties' arguments in terms of § 12-121. Nevertheless, because there is no substantial difference between § 12-121 and § 12-1027 with respect to the issue before us, our construction of the former is equally applicable to the latter.
 
 II

   The sole issue before us under the certiorari petition is the construction of § 12-121. Lender never contended in its brief on direct appeal that the inspection fees are authorized to be imposed on the borrower by federal law or that the Maryland statutes are federally preempted as applied to the[***14] facts of this case. Nor does Lender argue that the Maryland statutes are [*581]to be construed to avoid possible unconstitutionality under federal law. n7 

n7 HUD regulations, in 24 C.F.R. § 203.552 (1994), provide in relevant part as follows:

   "(a) The mortgagee may collect reasonable and customary fees and charges from the mortgagor after insurance endorsement only as follows:

   ....

   "(14) Property preservation expenses incurred pursuant to § 203.377."
 
24 C.F.R. § 203.377 states in part as follows:

   "The mortgagee, upon learning that a property subject to a mortgage insured under this part is vacant or abandoned, shall be responsible for the inspection of such property at least monthly, if the loan thereon is in default."
 
Assuming, arguendo, that HUD regulations are incorporated by law into the agreements between lenders and borrowers on insured loans, the circuit court never made any finding that the property was "vacant or abandoned" within the meaning of the regulation. In any event, Taylor's counterclaim also seeks a refund of inspection fees paid or charged prior to the time when he was no longer personally residing on the premises.

[***15]

   Taylor's position, quite simply, is that the inspection fees in this case fall within the plain language of § 12-121. Taylor's position is reinforced by the rule of statutory construction dealing with statutes that express a general rule, followed by one or more specific exceptions to the general rule. Under those circumstances, a court ordinarily cannot add to the list of exceptions. See Gable v. Colonial Ins. Co., 313 Md. 701, 704, 548 A.2d 135, 137 (1988) ("Where the Legislature has required specified coverages in a particular category of insurance, and has provided for certain exceptions or exclusions to the required coverages, additional exclusions are generally not permitted."); Schmidt v. Beneficial Fin. Co., 285 Md. 148, 155, 400 A.2d 1124, 1127 (1979) (where "Secondary Mortgage Loan Law [did] not expressly except loans meeting the criteria set out in the Consumer Loan Law," the court would not read "such an exception into the law.").

   Lender argues that the language in § 12-121, "in connection with a loan," is ambiguous, in that it may deal only with the time of loan closing, or its scope may be broader. This effort to establish an ambiguity is designed to open [***16]the [*582] door for legislative history. Alternatively, Lender contends that a statute must always be construed in accordance with its purpose. Lender cites Blaine v. Blaine, 336 Md. 49, 64, 646 A.2d 413, 420 (1994), for the proposition that "even where the language of a statute is plain and unambiguous, [the Court] may look elsewhere to divine legislative intent; the plain meaning rule is not rigid and does not require [the Court] to read legislative provisions in rote fashion and in isolation." In accordance with the latter approach to statutory construction, we now turn to the legislative purpose.

   There is no question but that the background for the creation of the Commission was concern over real property closing costs. Commission Report at 3. The Commission's [**64] recommendations, however, and the statutes that were based thereon, were not limited exclusively to closing costs. Chapter 628 of the Acts of 1986 enacted a prohibition against a Lender's imposing "a collection fee or service charge on the maintenance of an escrow account on a first mortgage or first deed of trust." 1986 Md. Laws. at 2206, currently, with amendments, CL § 12-109.2. See also CL § 12-1026(e).

   The prohibition[***17] against charging a service fee to maintain an escrow account is a continuing prohibition, throughout the life of the loan, and is not limited to closing costs. In explaining this recommendation the Commission in its report said, in part:

   "Most lenders require a borrower to make monthly payments into an escrow account in order to accumulate sufficient funds to pay property taxes, hazard insurance premiums and some other charges (e.g. ground rent) as they become due. ...

   ....

   "... The Task Force is concerned, however, about information that some lenders impose a collection fee or service charge on the maintenance of required escrow accounts. Such additional fees, usually $30 to $50 annually, should be prohibited because funds are escrowed as a requirement of, and for the convenience and security of lenders."
 
[*583] Commission Report at 26-27. In originally enacting CL § 12-109.2 the General Assembly had made no change from the statutory language proposed by the Commission.

   Further, proposed § 12-121(c)(2), as introduced, would have permitted a fee for a lender's inspection to ascertain completion of "repairs, alterations or other work required by the lender as a condition to [***18]  granting the loan." 1986 Md. Laws at 2208 (emphasis added). The italicized language indicates that the Commission's focus may well have been on inspection fees associated with a loan closing. But the General Assembly struck the italicized language from the bill in the course of passage.

   The effect of this amendment was to expand the exception to the prohibition so that inspection fees could be charged for ascertaining the completion of work that had nothing to do with granting the loan. For example, in the instant matter, Taylor assumed the obligation in P 5 of the deed of trust to "keep the said premises in as good order and condition as they are now ... reasonable wear and tear excepted." If Taylor had violated that covenant, and Lender and Taylor agreed that Lender would not treat the breach as a default if Taylor caused repairs to be made within a stated time, Lender would not be prohibited from charging an inspection fee to determine if those repairs had been made. In terms of the issue before us, the amendment to the Commission's proposed statute concerning inspection fees indicates that the General Assembly did not consider that the prohibition against inspection fees was[***19] limited to closing costs. Otherwise, there would have been no need to eliminate from the exception the limitation to conditions of granting the loan. In other words, an exception for an inspection fee to determine if work had been done that was a condition of the loan would have been entirely adequate if the prohibition against inspection fees were limited to those charged as part of closing costs. It is the intent of the General Assembly that we must discern, not that of the Commission.

   [*584] For the foregoing reasons we conclude that the legislative history does not so clearly demonstrate a purpose to limit the prohibition of § 12-121 to closing costs as to override the plain language of the statute. Accordingly, we shall reverse and remand for further proceedings.

JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED. CASE REMANDED TO THAT COURT FOR THE ENTRY OF A JUDGMENT REVERSING THE JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AND REMANDING THIS ACTION TO THAT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID BY THE RESPONDENT, BANK OF AMERICA, F.S.B.

                       
ACADEMY OF IRM v. LVI ENVIRONMENTAL SERVICES, INC., f/k/aDIVERSIFIED ENVIRONMENTAL CORP. 
No. 3, September Term, 1996
 
COURT OF APPEALS OF MARYLAND
 
344 Md. 434; 687 A.2d 669; 1997 Md. LEXIS 6

 January  16, 1997, Filed

   SUBSEQUENT HISTORY: [***1]

   As Corrected January 22, 1997.

PRIOR HISTORY: Certiorari to the Court of Special Appeals (Circuit Court for  Anne Arundel  County). County Case # 1115976/C-92-05670. Eugene M. Lerner, JUDGE.

DISPOSITION: JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED. COSTS TO BE PAID BY THE PETITIONER, ACADEMY OF IRM.

CORE TERMS:  garnishee, trade name, continuation, default, transferor, entity, return receipt, certified mail, service of process, successor, notice, lender, addressee, delivery, process server, foreclosure, summons, asbestos removal, license, mail, security interest, continuity, treasurer, effected, successor liability, signature, garnishment, shareholder, customer, predecessor

COUNSEL: ARGUED BY George Z. Petros (Nicholas J. Kallis, on brief) of Annapolis, MD, FOR PETITIONER.
 
ARGUED BY Joseph S. Kaufman (Schulman & Kaufman, LLC, on brief) of Baltimore, MD, FOR RESPONDENT.

JUDGES: ARGUED BEFORE Bell, C.J.; Eldridge, Rodowsky, Chasanow, Karwacki, Raker and Murphy, Robert C. (retired and specially assigned), JJ. Opinion by Rodowsky, J.

OPINIONBY: RODOWSKY

OPINION: [*437]  
[**670] Opinion by Rodowsky, J.
 
This garnishment on a judgment by default presents two principal[***2] issues:
 
   [**671] 1. Whether long-arm service of process is effected on a foreign corporation when an apparent agent for the corporation's financial officer signs the certified mail return receipt on which the sender requested restricted delivery to the corporation's financial officer; and
 
2. Whether successor liability may be imposed where the "successor" has acquired the assets of the debtor through foreclosure of bona fide security interests purchased for value by the "successor" from the original lenders.

   The petitioner, Academy of IRM (IRM), provided bulk sampling and air monitoring services to contractors engaged in asbestos encapsulation and removal. One of the asbestos removal contractors for whom IRM rendered services was Diversified Environmental Group, Inc., a Pennsylvania corporation [*438] (Debtor). n1 The contracts for the work that IRM was doing for Debtor originated out of Debtor's office at 1075 Taft Street, Rockville, Maryland where Debtor carried on business under the trade name, Desco Insulation Company (the Trade Name). Because IRM had not been paid by Debtor, IRM had last done work for Debtor in March 1987. In November 1987 IRM sued in the Circuit Court for Anne Arundel[***3] County to recover the balance due on invoices for services rendered for Debtor at a number of job sites in Maryland, the District of Columbia, and Virginia, including work for Debtor at Fort Belvoir, Virginia. 

n1 Debtor was incorporated in Pennsylvania on March 22, 1983, as Diversified Energy Group, Inc., and it changed its name to Diversified Environmental Group, Inc. on September 12, 1986.

   Facts - Issue I

   When IRM brought suit it named as defendants the Trade Name and the Debtor. A private process server returned service on the Trade Name by personal delivery to F. Thomas Young at the Rockville address. n2 

n2 One of IRM's exhibits to its complaint was a letter on the letterhead of Desco Insulation Company. At the foot of the stationery was printed, "Division of Diversified Environmental Group, Inc.," with a Pennsylvania address and telephone number. The letter on that stationery was signed "F. Thomas Young, Branch Manager."

[***4]

   IRM undertook to serve process on Debtor by certified mail. See Maryland Code (1974, 1995 Repl. Vol.), §§ 6-103 and 6-304 of the Courts and Judicial Proceedings Article and Maryland Rules 2-121 and 2-124. Attached to the affidavit of service filed in the circuit court by IRM is the certified mail return receipt. It reflects that the United States Postal Service was to "show to whom delivered, date, and addressee's address." The sender also requested "Restricted Delivery." The mail was addressed to "Anthony J. Dintino, Controller, Diversified Environmental Group, 30 Great Valley Parkway, Malvern, Pennsylvania 19355." In block "5. Signature - Addressee" the return receipt is signed, as we read it, "Karen L. Reserdiz." Immediately below that signature, in [*439] the block on the receipt designated "6. Signature - Agent," the word "Agent" is circled. The date of delivery was November 25, 1987, and the addressee's address, written in longhand abbreviations, is 30 Great Valley Parkway. The return receipt form contains the following preprinted instruction to the letter carrier: "Always obtain signature of addressee or agent and DATE DELIVERED."

   The Debtor did not appear in response to[***5] the complaint, either in its true corporate name or under its trade name. In May 1988 Judge Robert H. Heller, Jr. entered an order of default, but he specifically limited the order submitted by counsel for IRM to the Trade Name only. In an accompanying note Judge Heller expressed the view that the indication on the return receipt of service on an agent was "not satisfactory to comply with Md. Rule 2-124(c)." The cited rule provides in relevant part:
 
"Rule 2-124. Process - Persons to be Served.

   ....

   "(c) Corporation. -- Service is made upon a corporation ... by serving its resident agent, president, secretary, or treasurer. If the corporation ... has no resident agent or if a good faith attempt to serve the resident agent, president, secretary, or treasurer has failed, service may [**672] be made by serving the manager, any director, vice president, assistant secretary, assistant treasurer, or other person expressly or impliedly authorized to receive service of process."
 
The docket in this action, immediately following entry of the order of default, reflects: "(Copies mailed to ... Mr. Young for Desco Insulation Company and Mr. Anthony Dintino for Diversified Environmental[***6] Group, Inc. on 5/23/88)." n3 

n3 Maryland Rule 2-613, "Default Judgment," provides in subsection (b), in relevant part, as follows:
 
"Notice. -- Promptly upon entry of an order of default, the clerk shall issue a notice informing the defendant that the order of default has been entered and that the defendant may move to vacate the order within 30 days after its entry. The notice shall be mailed to the defendant at the address stated in the request and to the defendant's attorney of record, if any."

[*440]

    In August 1988 the matter again came before Judge Heller for the entry of judgment on the order of default. No representative of the Trade Name or Debtor was present. Counsel for IRM told the court that she had communicated, by telephone, the date for the hearing to a named attorney at a named Philadelphia law firm which was counsel for the Trade Name and Debtor. IRM's counsel further represented to the court that that Pennsylvania lawyer had indicated that he probably would not appear at the hearing and[***7] that "his clients had served him with notice of the proceeding and the papers--the complaint copies."

   The president of IRM testified that, in March 1987, IRM had stopped doing work for Trade Name due to non-payment and that, as the situation worsened, IRM had spoken with Debtor. The court noted that, in early April 1987, Debtor had written to IRM seeking a written confirmation of Debtor's liability to IRM. The court thereupon entered judgment in favor of IRM against both Debtor and the Trade Name. The judgment was for the principal balance of $78,204, prejudgment interest of $10,763.05, and court costs.

   Facts - Issue II

   In March 1989 IRM caused writs of garnishment to be issued on its judgment and directed service on Diversified Environmental Corporation (DEC) and LVI Environmental Services, Inc. at the Rockville address. They are the same corporation. DEC was incorporated under Pennsylvania law on June 25, 1987, and, on February 1, 1988, it changed its name to LVI Environmental Services, Inc. We shall refer to this Pennsylvania corporation, the respondent in this Court, as DEC or Garnishee. Garnishee, in the latter half of 1987, had acquired the former assets of Debtor. [***8] How that came about requires the review of a number of transactions. [*441]

   Debtor had financed its operations by borrowing from three different lenders, Crouse Group, Inc. (Crouse), Meridian Bank (Meridian), and Bell Savings & Loan Association (Bell). Debtor had effected a revolving loan agreement with Bell in July 1984 for a line of credit secured by assignments of Debtor's rights in customer contracts acceptable to Bell and by personal guarantees. The maximum outstanding balance at any one time under the line of credit was the lesser of $1 million or ninety percent of the balance to be paid on assigned customer contracts. Debtor had a similar arrangement with Meridian. That agreement originated in August 1985 and involved a line of credit up to the lesser of $500,000 (later $600,000) or eighty percent of balances on assigned customer contracts. Meridian's security agreement also included Debtor's office furniture and equipment.

   Debtor's borrowings from Crouse began as early as May 1985 and were secured by contract rights, accounts receivable, and personal guarantees.

   By June 10, 1987, the original principal amount of notes issued by Debtor to Crouse totalled $3,680,209.41. This[***9] included $1,019,091.04 (including prepaid interest) that Debtor had borrowed from Crouse on November 19, 1986, secured by anticipated proceeds of $1,094,612.10 under a contract with the Department of the Army involving asbestos rehabilitation work at Fort Belvoir.

   In or about April 1987 Debtor lost Crouse as a source of financing when Crouse became [**673] involved in reorganization proceedings under Chapter 11 of the Bankruptcy Code in the United States Bankruptcy Court for the Eastern District of Pennsylvania. That change in Debtor's circumstances, coupled with its failure to remit payments from customers on assigned contracts, caused Meridian to call its loan. Debtor then negotiated an agreement of June 10, 1987, with representatives of Crouse. Under that agreement Debtor's obligation to Crouse, and the personal guarantees of Debtor's principals, would be satisfied by the payment of $1,995,084, and Crouse's security interest in the assets of Debtor would be terminated. [*442] The agreement also included payment by a Debtor-related company of an additional $983,200.98 in satisfaction of that other company's indebtedness to Crouse. Conditions precedent to the agreement included the production[***10] by Debtor and the related company of a commitment to fund $2,300,000.

   Debtor had been unable to secure the financing when its representatives approached representatives of NICO, Inc. (NICO) about the possible acquisition by the latter of Debtor. NICO was a wholly owned subsidiary of LVI Group, Inc., a publicly traded, nationally listed corporation. NICO, in turn, owned all of the stock of LVI Environmental Services Group, Inc. The latter engaged in asbestos abatement contracting in a number of areas in the United States through wholly owned, direct subsidiaries, respectively incorporated in different states. Almost all of these subsidiaries were named LVI Environmental Services, Inc.

   NICO was interested in entering the asbestos removal contracting field in the area in which Debtor was doing business, but NICO was not in the least interested in assuming Debtor's liabilities. Nevertheless, an agreement was reached, dated August 6, 1987, under which NICO would purchase Crouse's position as Debtor's secured creditor for the same amount, $1,995,084, for which Crouse was willing to release Debtor. NICO also effected agreements for the purchase from Meridian and from Bell of their secured[***11] positions vis-a-vis Debtor. NICO's objective was to obtain Debtor's assets, particularly Debtor's contracts for work not yet in progress. Inasmuch as Debtor would not be able to pay its obligations to Crouse, Meridian, and Bell, NICO, standing in the shoes of those secured creditors, would obtain the assets of Debtor through a friendly foreclosure. NICO could then expand the geographical area and volume of its business through its newly created sub-subsidiary, DEC. n4 

n4 Although there was no fact-finding on this point by the circuit court, there is the strong suggestion in the record that the benefit to Debtor's principals in this arrangement was that the personal liabilities of the guarantors, at least with respect to the Crouse loan, were extinguished. In addition, two individuals who had been officers of Debtor respectively became president and executive vice president of DEC when it was incorporated in June 1987.

[*443]

   The August 6 agreement with Crouse et al. was approved by the bankruptcy court on[***12] August 13, 1987. Also, on August 6, 1987, an agreement was reached whereby, for $500,000 paid by NICO to Bell, Bell would sell to NICO Debtor's $961,840.21 obligation and its security. NICO effected a similar arrangement with Meridian by an agreement of September 14, 1987. NICO agreed to pay $345,000 to acquire all of Meridian's interests in loan documents evidencing Debtor's principal obligation to Meridian of $359,746.42, plus interest of $9,212.94 as of September 1, 1987, together with Debtor's principals' personal obligations to Meridian as of that date of $80,411.94, plus $2,047.15 interest.

   Thus, NICO paid approximately $2,840,000 to acquire Debtor's obligations to the three lenders and their security interests in Debtor's assets. Then, by an agreement dated November 18, 1987, Debtor and its related companies, acknowledging their default, agreed to convey the security to NICO's assignee in lieu of foreclosure, and the parties agreed on a method for crediting amounts to be realized on the security against Debtor's obligation. In that agreement Debtor also acknowledged the accuracy of the description of the collateral to be conveyed as "all of the contract rights, assets, [***13] accounts receivable and other tangible and intangible property of DEBTOR." (Emphasis added). On December 1, 1987, Debtor confirmed the transfer of Debtor's [**674] interest in its former contracts to DEC, the Garnishee in these proceedings, as assignee of the rights of NICO under the November 18 agreement.
 
By at least September 1987, if not earlier, DEC began doing asbestos removal business for former customers of Debtor and used Debtor's Trade Name, former employees, and equipment. In Rockville, DEC operated out of the Debtor's former leased premises under an assignment of the lease. DEC installed a new manager there. An estimator, who had left [*444] Debtor's employ at the Rockville office in June 1987 because the business was not successful, returned in September 1987 as an employee of DEC. The estimator testified that, over a period of time, the Trade Name was used less and less while the new name, LVI, was being introduced to the customers.

   Procedural History
 
IRM issued the writ of garnishment in March 1989. Garnishee answered and denied holding any property of the judgment debtor. After IRM had changed counsel to its present attorneys, the garnishment came on for hearing[***14] in September 1994 before Judge Eugene M. Lerner. The circuit court concluded that Garnishee was directly liable to IRM as the successor of Debtor. Judgment was entered against Garnishee for $89,092.05, with interest from August 16, 1988.

   Garnishee appealed to the Court of Special Appeals, which reversed the judgment. LVI Envtl. Servs., Inc. v. Academy of IRM, 106 Md. App. 699, 666 A.2d 899 (1995). The Court of Special Appeals held that Garnishee, by answering the writ of garnishment without raising any jurisdictional issues, had waived Garnishee's contention that personal service had never been effected on the Debtor. That court also held, inter alia, that "IRM could not transform the garnishment proceeding into a direct cause of action against [Garnishee] and proceed on a theory of successor corporation liability." Id. at 709, 666 A.2d at 904.

   I

   Garnishee asserts that the circuit court never obtained in personam jurisdiction over Debtor so that the judgment against Debtor is subject to collateral attack. On this issue Garnishee relies solely on the initial ruling by the circuit court when it declined to enter an order for default against Debtor. [*445] Garnishee[***15] further submits that a trade name is not a legal entity. Without citation of any authority, Garnishee asserts that a judgment entered against a trade name is a nullity. n5 In opposition to Garnishee's contentions, IRM advances a number of arguments, including the lack of any jurisdictional defect in the service of process on Debtor. n6 

n5 Maryland Code (1957, 1996 Repl. Vol.), Art. 2, § 20 provides for the entry of judgment against trade names under the circumstances therein provided. 

n6 IRM contends that Garnishee failed conditionally to cross petition from the denial by the Court of Special Appeals of Garnishee's collateral attack on the judgment against Debtor. We note, however, that Garnishee stated in its answer to IRM's petition for certiorari that the alleged lack of personal jurisdiction would be raised if the petition for certiorari were granted.

   We choose to decide the jurisdictional issue because it is of broader public importance than whether there was a waiver in this particular case. In so doing, we intimate no opinion on the correctness of the waiver holding by the Court of Special Appeals.

[***16]

   A

   Critical to determining the efficacy, at least facially, of the service of process on Debtor is the interpretation of the certified mail return receipt filed by IRM. The certified mail was directed to "Anthony J. Dintino, Controller" of Debtor. We interpret "controller" to be the equivalent of "treasurer" as the latter term is used in Md. Rule 2-124(c). n7 Thus, IRM undertook to effect service on the foreign corporation by targeting the registered mail to one of the corporate representatives who was within the first priority [**675] grouping under Md. Rule 2-124(c). Consequently, signing of the receipt, "Karen L. Reserdiz" as "agent," indicated an agency to receive certified mail restricted for delivery to "Anthony J. Dintino, Controller" and not an agency to accept the service of process [*446] on behalf of Debtor. n8 

n7 The Pennsylvania corporation law, 15 Pa. C.S. § 1732(A) (1996), requires a corporation to have "a president, a secretary and a treasurer, or persons who shall act as such, regardless of the name or title by which they may be designated, elected or appointed ...." Garnishee has not shown that Debtor had both a treasurer and a controller.

[***17] 

 n8 IRM relies on Steed Mortgage Co. v. Arthur, 37 Md. App. 592, 378 A.2d 690 (1977), but that decision presents a different issue. In that case the return stated that service on a corporate garnishee had been made by personally serving a vice president of the corporation. Vice presidents are not within the first priority class of corporate representatives for service of process under Md. Rule 2-124(c). After concluding that there was no due process violation because the corporation had actual notice of the proceedings, the Court of Special Appeals stated that "in any event, the service upon one in a secondary category without an attempt to serve a priority class is procedural rather than jurisdictional." Id. at 604, 378 A.2d at 698. We intimate no opinion on this analysis.

   We hold that the return of service on Debtor, with its accompanying return receipt, prima facie evidences service of process on Debtor in the underlying action, by service on Debtor's "treasurer." The provision in Md. Rule 2-121(a) for service by certified mail with "Restricted Delivery" necessarily contemplates deliveries[***18] that are consistent with the requirements and practices of the United States Postal Service for that type of mail. The Domestic Return Receipt, Postal Service Form 3811 of February 1986 that was filed in this case, directs the letter carrier "always [to] obtain signature of addressee or agent ...."

   The instruction on the return receipt form is further explained by United States Postal Service, Domestic Mail Manual, Issue 49, S916.3.1, at S-33 (Sept. 1, 1995), dealing with restricted delivery. That subsection provides:
 
"Mail marked 'Restricted Delivery' is delivered only to the addressee or to the person authorized in writing as the addressee's agent to receive the mail, subject to D042 and to these exceptions:

   "a. Mail for famous personalities and executives of large organizations is normally delivered to an agent authorized to sign for such mail."
 
Thus, an exception to the requirement of an authorization in writing exists with respect to restricted deliveries to executives of large organizations. This is entirely consistent with general business practices. The corporate officers on whom Rule 2-124(c) directs service on a corporation first to be [*447] attempted are the class[***19] of officers least likely to interrupt their business activities to sign for registered mail. Further, these corporate officials are most likely to have authorized, expressly or impliedly, some responsible person at the corporate place of business to sign for registered mail that is directed to that specific officer. Similarly, this Court, in the exercise of its rulemaking power, did not intend to construct so unrealistic a method of service of process as to require Postal Service letter carriers, or even personal delivery process servers, to pursue corporate executives into their inner sancta in order to obtain personal signatures on restricted delivery mail receipts. In a particular case, it may become a question of fact whether the person who signed the return receipt was an agent for accepting the delivery of certified mail on behalf of the corporate officer to whom delivery was restricted.

   In the instant matter, there is no direct evidence bearing on who Karen L. Reserdiz is, or what her actual authority might have been to sign for restricted mail addressed to Anthony J. Dintino. Nevertheless, the inference from the fact that she was at Dintino's office is that she was so[***20] authorized. Here, the burden was on Garnishee to demonstrate that service had never been effected on Debtor by certified mail.

   Simply because delivery was made to a person other than the officer identified on the receipt or in the summons does not mean that service was invalid and personal jurisdiction was lacking. A line of New York cases, led by Fashion Page, Ltd. v. Zurich Ins. Co., 50 N.Y.2d 265, 428 N.Y.S.2d 890, 406 N.E.2d 747 (1980), gives appropriate weight to the internal practices of particular business organizations. In Fashion Page a process server had been instructed to serve the defendant insurance company. A receptionist at the defendant's offices directed the [**676] process server down a corridor to where a woman was seated at a desk. That woman accepted the papers after having been told that they were a summons and complaint. "When [the process server] asked her if she [*448] was authorized 'to accept this', she stated 'I can take it.'" 406 N.E.2d at 749. In upholding the validity of the service of process, the court stated:

   "Thus a corporation may assign the task of accepting process and may establish procedures for insuring that the papers are directed to those [***21]ultimately responsible for defending its interests. A process server may, of course, always serve the corporate personnel specifically identified in the statute. The corporation however cannot escape the consequences of establishing alternative procedures which it may prefer. In such a case the process server cannot be expected to know the corporation's internal practices. Reliance may be based on the corporate employees to identify the proper person to accept service. In such circumstances, if service is made in a manner which, objectively viewed, is calculated to give the corporation fair notice, the service should be sustained.

   "In evaluating whether service is to be sustained, the circumstances of the particular case must be weighed. Delivering the summons to a building receptionist, not employed by the defendant, without any inquiry as to whether she is a company employee, would not be sufficient. Such service cannot be upheld even though the receptionist may later deliver the summons to the proper party. 'To sustain such service would encourage carelessness, or worse, thus increasing the risk of default by parties who in fact fail to receive the summons.' Nor is it always reasonable, [***22] under all circumstances, for the process server to rely on claims of authority made by the defendant's employees. For instance, a remark made by an employee, temporarily visiting the State, that he represents the corporation has been held insufficient to establish his authority to accept process on its behalf. But when the corporation is regularly doing business in the State, it generally cannot be heard to complain that the summons was delivered to the wrong person when the process server has gone to its offices, made proper [*449] inquiry of the defendant's own employees, and delivered the summons according to their directions."
 
Id. at 751 (citations omitted).
 
   The New York cases applying Fashion Page are reviewed in Melkaz Int'l Inc. v. Flavor Innovation Inc., 167 F.R.D. 634 (E.D.N.Y. 1996). See also Nationwide Mut. Ins. Co. v. Kaufman, 896 F. Supp. 104 (E.D.N.Y. 1995); Seward & Kissel v. Smith Wilson Co., 814 F. Supp. 370 (S.D.N.Y. 1993); Carlin v. Crum & Forster Ins. Co., 170 A.D.2d 251, 565 N.Y.S.2d 519 (1991); Von Thaden v. S.J. Groves & Sons Co., 97 A.D.2d 677, 469 N.Y.S.2d 172 (1983); Conroy v. International Terminal Operating Co., 87 A.D.2d[***23] 858, 449 N.Y.S.2d 294 (1982); De Vore v. Osborne, 78 A.D.2d 915, 432 N.Y.S.2d 919 (1980); Kuhlik v. Atlantic Corp., 112 F.R.D. 146 (S.D.N.Y. 1986); Leo v. General Elec. Co., 111 F.R.D. 407 (E.D.N.Y. 1986). But see Hemmerich Indus., Inc. v. Moss Brown & Co., 114 F.R.D. 31 (E.D. Pa. 1987) (applying Pennsylvania law).

   From the standpoint of the efficacy of personal service, we see no substantial difference between the above-cited cases, where a process server is attempting to identify a person who is authorized to receive service of process within an organization, and cases in which a letter carrier is attempting to find either the restricted addressee or someone who is authorized to sign for that restricted addressee.

   Poole v. Hanover Brook, Inc., 34 N.C. App. 550, 239 S.E.2d 479 (1977), cert. denied, 294 N.C. 183, 241 S.E.2d 518 (1978), is on point. In that case, certified mail for service on the defendant corporation in Chicago, Illinois was restricted to the corporation's president, but the return receipt was signed by another person as "Authorized Agent." 239 S.E.2d at 480. The court held it to be a reasonable inference that the person signing received[***24] the summons and complaint on behalf of the corporate president and "was a person of reasonable age and discretion authorized to receive registered mail and sign the receipt [**677] for the addressee." Id. at 482. This created "a rebuttable presumption of valid service," which the defendant in that case did not attempt to rebut. Id. See also Beck v. [*450] Atlantic Contracting Co., 157 F.R.D. 61, 64 (D. Kan. 1994) ("The court believes that even where the process is not delivered to the agent in hand, if it is accepted as special, certified mail by an employee at the agent's place of business, it is highly likely that the agent will get the notice and will take the appropriate steps to initiate the corporation's response."); Evans v. Advance Schools, Inc., 70 Ill. App. 3d 947, 388 N.E.2d 1003, 27 Ill. Dec. 40 (1979) (want of jurisdiction does not affirmatively appear on the face of the record from the presence of a return receipt signed by person other than the person to be served).

   In the instant matter Garnishee did not produce any evidence that contradicts the prima facie validity of the service of process on Debtor. Consequently, Garnishee's contention that in personam jurisdiction was[***25] never acquired over Debtor fails.

   B

   Once in personam jurisdiction had been acquired over Debtor, it was no longer necessary for further notices in the proceeding to be served on Debtor in the manner required for the service of original process. Consequently, when notice of the order for default was mailed by the circuit court clerk to the Pennsylvania address at which service had been effected, that notice complied with Md. Rule 2-613(b). Further, notice that an order for default had been entered against Trade Name was notice to Debtor that an order for default had been entered against it, since Trade Name was simply another name by which Debtor was known, at least in the Washington, D.C. metropolitan area.

   In any event, entry of the order for default against the Trade Name, and use of the Trade Name in the notice of that order, are at most misnomers which had no effect on the personal jurisdiction of the Circuit Court for Anne Arundel County over Debtor in the underlying action. [*451]

   II

   IRM's judgment against Debtor represented work done by IRM for Debtor prior to April 1987, approximately three months or more before Garnishee was incorporated. The circuit court did not find that[***26] the writ of garnishment reached property or credits of Debtor in the hands of Garnishee. The circuit court imposed liability on Garnishee for Debtor's pre-existing obligation to IRM based on the following rationale:
 
"I find that there really was a continuation of the business. It's the same business. It's operated in the same place. [DEC] has the same employees. [DEC] has the same trucks, the same [asbestos removal contractor] numbers."
 
The "general or traditional rule" is that a "'corporation which acquires all or part of the assets of another corporation does not acquire the liabilities and debts of the predecessor, unless: ... (3) the successor entity is a mere continuation or reincarnation of the predecessor entity ....'" Nissen Corp. v. Miller, 323 Md. 613, 617, 594 A.2d 564, 565-66 (1991) (quoting 1 American Law of Products Liability 3d § 7:1, at 10-12 (Travers, rev. ed. 1990)). It is that third exception to the general rule that the circuit court undertook, we think erroneously, to apply to the facts of the instant matter. n9 

n9 Garnishee contends that successor liability may not be asserted in a garnishment proceeding and that a new action would have to be filed which, in the instant matter, would be barred by limitations. Garnishee further asserts that, even if successor liability is cognizable in a garnishment proceeding, IRM never amended to assert a claim on that theory. The Court of Special Appeals agreed that the action could not be so transformed. LVI Envtl. Servs., Inc. v. Academy of IRM, 106 Md. App. 699, 709, 666 A.2d 899, 904 (1995). We shall assume, arguendo, that successor liability has been properly raised, and we shall address the merits.

[***27]

   Successor liability predicated on continuity of the entity is to be distinguished from continuity of the enterprise. This Court in Nissen Corp. refused to adopt continuity of the enterprise as a basis for successor liability. "The mere continuation or continuity of entity exception applies where 'there is a continuation of directors and management, [**678] shareholder interest [*452] and, in some cases, inadequate consideration. The gravamen of the traditional "mere continuation" exception is the continuation of the corporate entity rather than continuation of the business operation.'" Id. at 620, 594 A.2d at 567 (quoting 1 L. Frumer & M. Friedman, Products Liability § 2.06[2][c], at 2-182 to 2-183 (1989)). "'[A] continuity of enterprise analysis seeks to establish whether there is substantial continuity of pretransaction and posttransaction business activities resulting from the use of the acquired assets ....'" Id. at n.1 (quoting 1 American Law of Products Liability 3d § 7:20, at 37 (Travers, rev. ed. 1990)). In the instant case, the circuit court's focus on the Garnishee's performance of asbestos removal, operating out of the Debtor's old site and using the[***28] Debtor's former employees and equipment, emphasized the continuation of the enterprise, without examining whether there was a continuation of the entity.

   Three factual aspects of Garnishee's activities merit special attention: its use of the Trade Name, its Maryland license for asbestos removal/encapsulation, and its work on the Fort Belvoir contract. DEC used the Trade Name in some aspects of its business for an undefined period, which the circuit court recognized to be the period of transition and which may have run from September 1987 until sometime in 1988. DEC takes the position that the Trade Name is one of the intangible assets of Debtor that DEC acquired by foreclosing the security interests. In Nissen Corp. the sale of assets included the seller's trade name, and the buyer also obtained covenants prohibiting the seller and its shareholders from using the trade name, although the seller, under a name change, would continue in business for five years. Id. at 615-16, 594 A.2d at 565. It was argued that "because Nissen [the buyer] enjoyed [the predecessor's] goodwill and held itself out as the effective continuation of [the predecessor]," Nissen was liable to the[***29] plaintiff.  Id. at 621, 594 A.2d at 568. That use of the seller's goodwill was not sufficient to give rise to continuation of the entity liability or to persuade this Court to recognize continuation of the enterprise as a basis of liability. Id. at 625-26, 632-33, 594 A.2d at 570, 573-74. [*453]

   In the case sub judice, the circuit court also relied on the "same numbers" on state licenses for asbestos removal. In the spring of 1987 Debtor's license, issued to Trade Name, was to expire June 9, 1987, and application for renewal was to be made by the end of May. The license was renewed June 10, 1987, to expire June 9, 1988, with two certificates issued, one to Debtor at the Rockville address and one to Trade Name at its Pennsylvania address. The next year a license was issued June 10, 1988, to expire June 9, 1989, with the same license number as on those previously issued to Debtor, but the holder of the new license was identified as LVI Environmental Services, Inc., i.e., DEC after its name change.

   IRM also called as a witness a civilian contract-specialist with the Army Corps of Engineers (the Corps) who had reviewed files concerning the contract or contracts for asbestos[***30] removal at Fort Belvoir. The witness had been asked to compile information relating to checks issued to Garnishee, apparently in connection with an IRM contention, not found by the trial court, that checks issued to Garnishee were the property of Debtor. The witness testified that there was no novation in the files by which DEC was substituted for Debtor, although on May 12, 1989, in response to an inquiry, the Corps had advised someone that a novation would be required "to change names."

   Whether Garnishee violated Maryland license requirements or the federal anti-assignment statute, 41 U.S.C. § 15 (1994), are not issues before us. In the face of the well documented and uncontradicted record, reviewed above, tracing the step-by-step acquisition by Garnishee of Debtor's assets, the inferences adverse to Garnishee from the somewhat sketchy evidence involving the work at Fort Belvoir and the Maryland licenses is legally insufficient to support imposition of the continuation of entity theory.

   That theory "'is designed to prevent a situation whereby the specific purpose of acquiring assets is to place those assets out of reach of the predecessor's creditors. In other words, the purchasing[***31] corporation [**679] maintains the same [*454] or similar management and ownership but wears a "new hat."'" Nissen Corp., 323 Md. at 618, 594 A.2d at 566 (quoting Baltimore Luggage Co. v. Holtzman, 80 Md. App. 282, 297, 562 A.2d 1286, 1293 (1989), cert. denied, 318 Md. 323, 568 A.2d 28 (1990)). Here, no former shareholder in Debtor holds any ownership of DEC, LVI Environmental Services Group, Inc., or NICO. No shareholder of Debtor is a director of DEC or its parent companies. The only transfusion from old to new was at the level of employees. Two officers of Debtor became officers of DEC.

   Moreover, the security interests taken by the three lenders were clearly bona fide, and the amounts paid by NICO to acquire those security interests were substantial. The largest of the transactions, NICO's purchase from Crouse, was approved for fairness by the bankruptcy court. In any event, IRM does not contend that the consideration was not fair, and the circuit court made no such finding. Further, there is no question but that Debtor was in default on the loans, and there is no finding by the circuit court that any aspect of the acquisition by DEC of the former assets of Debtor was fraudulent[***32] as to unsecured creditors. Under the facts of this case successor entity liability does not lie.

   The instant matter is not unlike that in State ex rel. Donahue v. Perkins & Will Architects, Inc., 90 Ill. App. 3d 349, 413 N.E.2d 29, 45 Ill. Dec. 696 (1980). There, the plaintiff, an unsecured creditor, had sold glass to the transferor, a manufacturer of insulated windows. Six lenders, who had joined in a substantial loan to the transferor, held a security interest in all of the transferor's assets. They also held all of the transferor's stock in a voting trust that was created as additional security by the transferor's sole shareholder. 413 N.E.2d at 30. The lenders ousted the sole stockholder as president and hired a new manager, but the business continued to decline. As a result, the lenders liquidated the transferor by an assignment for the benefit of creditors. The lenders then formed the buyer corporation which purchased the transferor's assets for $7,500, subject to the existing security interest. Id. at 31. [*455]

   The Illinois appellate court rejected the unsecured creditor's contention that continuation of the entity liability should have been imposed by the trial court. The court held[***33] that there was no continuity of shareholders in that "nothing in plaintiff's arguments persuades us that a security interest, or a security interest in combination with voting control, should create an interest equivalent to ownership of corporate stock." Id. at 32. The court applied the rule that "an involuntary reorganization, that is, one forced on the corporation by its creditors, usually taking the form of bankruptcy or foreclosure, ordinarily leaves unsecured creditors without recourse against the successor corporation." Id. The assignment for the benefit of creditors was the functional equivalent of foreclosure. The court further said:
 
 "Given the impending demise of [transferor], the lending group could have foreclosed on its security interest, in which event the unsecured creditors would have been left with little or nothing. Instead, the lenders caused a liquidation of [transferor's] assets through an assignment for benefit of creditors. This action enabled the lenders to preserve the value of [transferor's] assets by purchasing them in the name of a viable corporation. This method of involuntary reorganization was no more prejudicial to [transferor's] [***34] unsecured creditors than other available means. Under the circumstances, we find no reason to depart from the usual rule that involuntary reorganization extinguishes old debts."
 
Id. at 32-33. Compare Bennett Heating & Air Conditioning, Inc. v. NationsBank of Maryland, 342 Md. 169, 674 A.2d 534 (1996) (mortgage foreclosure sale not invalidated by pre-sale agreement between lender and ultimate foreclosure purchaser to use foreclosure for the purpose of wiping out junior liens).

   A case that emphasizes adequacy of consideration is Uni-Com Northwest, Ltd. v. Argus Publishing Co., 47 Wash. App. 787, 737 P.2d 304, rev. denied, 108 Wash. 2d 1032 (1987). There, the plaintiff was an unsecured creditor of a publishing corporation, Argus, [**680] that was wholly owned by one Murray. Printing for Argus was done by Murray Publishing Company [*456] (MPC), that was sixty percent owned by the same Murray. As Argus fell behind in its payments to MPC, MPC took a security interest in the assets of Argus. When the indebtedness of Argus to MPC exceeded $1,200,000, MPC decided to foreclose, and Argus "acquiesced." 737 P.2d at 307. MPC took over the Argus business, paid its current operating[***35] expenses, collected its remaining accounts receivable, credited them against the obligation of MPC, and took a bad debt deduction for the balance owed by Argus. The continuation of what had been the business of Argus represented about fifty percent of the total business of MPC. Id. at 311.

   The Washington court held that the continuation of entity exception to the non-liability of successors did not apply in the case because "[a] key element ... is insufficient consideration running to the seller from the purchaser corporation." Id. at 313. The plaintiff in that case cited Brockmann v. O'Neill, 565 S.W.2d 796 (Mo. Ct. App. 1978), and National Carloading Corp. v. Astro Van Lines, Inc., 593 F.2d 559 (4th Cir. 1979), both of which are relied upon by IRM in this Court. We agree with the distinction of these cases enunciated in Uni-Com, namely that "none of them involve a creditor taking over an insolvent debtor to collect a bona fide debt pursuant to a valid, perfected security interest. Nor do they involve a creditor ... who has substantial business interests in addition to those of the business assumed." Uni-Com, 737 P.2d at 313.

   IRM also relies upon [***36] H.J. Baker & Bros., Inc. v. Orgonics, Inc., 554 A.2d 196 (R.I. 1989). In that case, a corporation manufactured chemicals on leased premises. The corporation was in serious financial difficulties and had halted operations. Its largest shareholder, O'Donnell, bought up all the mortgage interests on the property that the corporation leased from the landlord, Fezido. O'Donnell then declared the mortgages in default, advertised the foreclosure, obtained a default judgment, and caused a sheriff's execution sale of the Fezido stock. Id. at 200. O'Donnell purchased the stock for $50 and "thus became the owner of Fezido Corporation, the real estate holding company, and therefore the owner of the [old corporation's] property." Id. [*457]
 
   The Supreme Court of Rhode Island found persuasive a test listing five criteria for imposing continuing entity liability that had been set forth in Jackson v. Diamond T. Trucking Co., 100 N.J. Super. 186, 196, 241 A.2d 471, 477 (1968). Applying those criteria to the facts before it, the Rhode Island court concluded that the unsecured creditor plaintiff was entitled to a new trial.

   The criteria listed by the Rhode Island court are:
 
"(1) [***37] there is a transfer of corporate assets; (2) there is less than adequate consideration; (3) the new company continues the business of the transferor; (4) both companies have at least one common officer or director who is instrumental in the transfer; and (5) the transfer renders the transferor incapable of paying its creditors because it is dissolved either in fact or by law."
 
H.J. Baker, 554 A.2d at 205.
 
We need not decide in this case whether we endorse the foregoing test. It is sufficient for present purposes to note that here there was adequate consideration paid by NICO. Further, IRM did not introduce any proof to show that either or both of the individuals who had been officers of Debtor and who became officers of DEC were "instrumental" in the transfer.

   The decision of the trial court was based either on a rule of law that is not part of Maryland law or on facts that are insufficient to support continuing entity liability. In either event the result is the same. The reversal of the circuit court judgment by the Court of Special Appeals should be affirmed.
 
JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED. COSTS TO BE PAID BY THE PETITIONER, ACADEMY [***38]  OF IRM.

                       
COMPTROLLER OF THE TREASURY v. MACK TRUCK, INC. 
No. 136, September Term, 1995
 
COURT OF APPEALS OF MARYLAND
 
343 Md. 606; 683 A.2d 777; 1996 Md. LEXIS 104

 October  11, 1996, Filed

   PRIOR HISTORY: [***1] Appeal from the Circuit Court for  Anne Arundel  County pursuant to certiorari to the Court of Special Appeals. Eugene M. Lerner, JUDGE. County Case # C-9413550 AA.

DISPOSITION: JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AFFIRMED. COSTS TO BE PAID BY THE COMPTROLLER OF THE TREASURY.

CORE TERMS:  refund, extension agreement, income tax, refund claim, incorporation, administrative interpretation, federal tax, administrative practice, federal statute, time limit, tax paid, expiration, audit, final adjustment, taxable income, claim filed, extending, regulation, dividend, expire, assess, legislative purpose, thoroughness, promulgated, contested, publicly, effected, breadth, unwary, trap

COUNSEL: ARGUED BY John K. Barry, Assistant Attorney General, (J. Joseph Curran, Jr., Attorney General; Gerald Langbaum, Assistant Attorney General, on brief) of Annapolis, MD, FOR APPELLANT.
 
ARGUED BY Herman B. Rosenthal of Baltimore, MD, FOR APPELLEE.

JUDGES: ARGUED BEFORE * Murphy, C.J.; Eldridge, Rodowsky, Chasanow, Karwacki, Bell, and Raker, JJ. Opinion by Rodowsky, J. 

* Murphy, C.J., now retired, participated in the hearing and conference of this case while an active member of this Court; after being recalled pursuant to the Constitution, Article IV, Section 3A, he also participated in the decision and the adoption of this opinion.

OPINIONBY: RODOWSKY

OPINION:  
[*607] [**777] Opinion by Rodowsky, [***2] J.
 
 This case involves the construction of the statute of limitations on claims for refund of Maryland income tax. Part of the Maryland statute incorporates by reference the section of the Internal Revenue Code (IRC) providing time limits on claims for refunds of federal taxes. The federal statute includes a special period of limitations where the Internal Revenue Service (IRS) and a taxpayer, pursuant to another section of the IRC, have agreed to extend the period for assessment of additional tax. The issue before us is whether a taxpayer, whose claim for refund of Maryland income tax is independent of any adjustments to the federal income tax return for the same year, obtains the benefit of the special time limit solely as a result of an extension agreement with the IRS, or whether the Comptroller of the Treasury (Comptroller) must also have sought and obtained an assessment extension agreement applicable to the same year.

   The taxpayer, Mack Truck, Inc. (Mack), overreported its income on its 1987 Maryland income tax return by one hundred million dollars ($100,000,000.00). The error involved one item, a dividend in that amount paid to Mack by a wholly owned, domestic subsidiary, [***3] Mack Financial Corporation. As the common parent company of an affiliated group, Mack filed a consolidated federal income tax return for 1987. Mack included the item in gross dividends received on its federal return, where it also later deducted the same item as an inter-company dividend. See IRC § 243(a)(3) (1986). Under Maryland income tax provisions, each member of an affiliated group of corporations is required to file a separate return. Maryland [*608] Code (1988), § 10-811 of the Tax-General Article, formerly Md. Code (1957, 1987 Cum. Supp.), [**778] Art. 81, § 295. n1 On its separate Maryland return Mack erroneously included the dividend, reporting its federal taxable income as $60,222,539. That Maryland return was timely filed on September 13, 1988. The effect of the error was that Mack overpaid its Maryland corporate income tax for 1987 by $936,763. 

n1 Unless otherwise noted, all statutory references are to Md. Code (1988, 1995 Supp.), Tax-General Article.

   On August 30, 1990, Mack entered into an agreement[***4] with the IRS under the provisions of IRC § 6501(c)(4) extending the period for assessment of federal income tax against Mack for 1987 to January 17, 1993. On March 16, 1993, Mack filed with the Comptroller an amended 1987 Maryland corporate income tax return, reducing its federal taxable income by the dividend received deduction and resulting in a loss of $39,777,461. Accompanying the amended return was a copy of Mack's extension agreement with the IRS and a request for refund in the principal amount of $936,763.

   The Comptroller rejected the claim, essentially because
 
"the State of Maryland did not request an extension of time within which to assess the taxpayer. Had such a request been made, and the taxpayer agreed, then pursuant to [IRC] § 6511, the statute of limitations would have been extended."

   Mack appealed to the Maryland Tax Court where the matter was heard on agreed exhibits, stipulated facts, and the testimony of an audit supervisor in the Comptroller's Office, described infra. The Tax Court ordered the refund. On judicial review of the Maryland Tax Court decision, the Circuit Court for Anne Arundel County affirmed. The Comptroller appealed to the Court[***5] of Special Appeals, and, prior to consideration of the matter by that court, we issued the writ of certiorari on our own motion. For the reasons hereinafter stated, we shall affirm the circuit court.

   [*609] The legal issue before us revolves around § 13-1104(c)(1) which we present below in relevant context.
 
" § 13-1104. Time for filing claims for refund.

   "(a) In general. -- Except as otherwise provided in this section, a claim for refund under this article may not be filed after 3 years from the date the tax, interest, or penalty was paid.

   ....

   "(c) Financial institution franchise tax and income tax. -- (1) Except as provided in paragraph (2) of this subsection, a claim for refund ... of ... income tax may not be filed after the periods of limitations for filing claims for refund ... set forth in § 6511 of the Internal Revenue Code.

   "(2) A claim for refund ... may not be filed later than 1 year from the date of:

   "(i) a final adjustment report of the Internal Revenue Service; or
 
"(ii) a final decision of the highest court of the United States to which an appeal of a final decision of the Internal Revenue Service is taken.

   "(3) Except as provided in paragraph[***6] (4) of this subsection, a refund ... allowed upon a claim filed under this subsection may not exceed the amount of the Maryland tax resulting from the application of the limits set forth in § 6511 of the Internal Revenue Code.

   "(4) A refund ... allowed upon a claim filed under paragraph (2) of this subsection shall be limited to the amount of the reduction in Maryland tax resulting from the federal income tax adjustment."

   The portions of the incorporated federal statute, IRC § 6511, that are most relevant to the issue before us read as follows:
 
"SEC. 6511. LIMITATIONS ON CREDIT OR REFUND.

   "(a) PERIOD OF LIMITATION ON FILING CLAIM.--Claim for ... refund ... of any tax ... in respect of which tax the [*610] taxpayer is required to file a return shall be filed by the taxpayer within 3 years from the time the return was filed or 2 years from the time the tax was paid, whichever of such periods expires the later ....

   [**779] "(b) LIMITATION ON ALLOWANCE OF CREDITS AND REFUNDS.--

    "(1) FILING OF CLAIM WITHIN PRESCRIBED PERIOD.--No ... refund shall be allowed ... after the expiration of the period of limitation prescribed in subsection (a) ... unless a claim for ... refund is filed by the taxpayer [***7]within such period.

   "(2) LIMIT ON AMOUNT OF CREDIT OR REFUND.--

   "(A) LIMIT WHERE CLAIM FILED WITHIN 3-YEAR PERIOD.--If the claim was filed by the taxpayer during the 3-year period prescribed in subsection (a), the amount of the ... refund shall not exceed the portion of the tax paid within the period, immediately preceding the filing of the claim, equal to 3 years plus the period of any extension of time for filing the return. ...

   ....

   "(c) SPECIAL RULES APPLICABLE IN CASE OF Extension OF TIME BY AGREEMENT.--If an agreement under the provisions of section 6501(c)(4) extending the period for assessment of a tax imposed by this title is made within the period prescribed in subsection (a) for the filing of a claim for ... refund--

   "(1) TIME FOR FILING CLAIM.--The period for filing claim for ... refund ... provided in subsections (a) and (b)(1), shall not expire prior to 6 months after the expiration of the period within which an assessment may be made pursuant to the agreement ... under section 6501(c)(4).

   "(2) LIMIT ON AMOUNT.--If a claim is filed ... after the execution of the agreement and within 6 months after the expiration of the period within which an assessment may be made[***8] pursuant to the agreement ..., the amount of the ... refund shall not exceed the portion of the tax paid after the execution of the agreement and before the filing of the claim [*611] ..., plus the portion of the tax paid within the period which would be applicable under subsection (b)(2) if a claim had been filed on the date the agreement was executed."

   The areas of agreement and dispute between the parties can be demonstrated by a walk through the statutory language. It is agreed that resolution of the dispute is determined by the construction of § 13-1104(c)(1) and that subsection (c)(3) is companion thereto with respect to the limit on the amount of refund. The parties also agree that if a final adjustment to a taxpayer's federal tax liability resulted in a reduction in Maryland tax, the time limit for the taxpayer's claim for a Maryland refund would be controlled by subsection (c)(2) and the amount of the refund would be limited by subsection (c)(4). In cases controlled by § 13-1104(c)(2) and (c)(4) it is undisputed that the taxpayer need not have alerted the Comptroller, prior to the final federal adjustment, that a refund of state taxes might result from ongoing activities involving[***9] the federal tax authorities. Those subsections, however, do not apply here because Mack's refund claim does not result from a federal adjustment.

   Section 13-1104(c)(1) incorporates IRC § 6511. The parties agree that the directly relevant portion of IRC § 6511 is subsection (c)(1). Mack submits that its agreement under the provisions of IRC § 6501(c)(4) with the IRS of August 30, 1990, extended the period for assessment of federal tax to January 17, 1993, and that, pursuant to incorporated IRC § 6511(c)(1), the period for filing claim for a Maryland refund did not expire until six months thereafter. Thus, Mack's claim for refund, accompanying its amended return filed March 6, 1993, was well within that six months.

   The Comptroller disputes Mack's reading of the effect of the incorporation by reference of IRC § 6511(c). The theme of the Comptroller's position is that incorporation by reference of the federal statute into the state statute incorporates only the federal rules, but not the particular federal events. For example, the Comptroller submits that the references in IRC [*612] § 6511(a) to "the time the return was filed" and to "the time the tax was paid" mean, after incorporation[***10] into § 13-1104, the filing of the Maryland return and the payment of the Maryland tax. The Comptroller argues that the timeliness of a claim for a very substantial refund must be determinable from facts or events that are part of the tax system from which the refund is sought. Consequently, submits the Comptroller, [**780] the reference in IRC § 6511(c) to an IRC § 6501(c)(4) extension agreement cannot be transported literally into § 13-1104(c)(1); rather, upon incorporation into the Maryland tax system, the federal agreement must be taken to mean an agreement with the Comptroller.

   Because there was no agreement between the Comptroller and Mack, the Comptroller says that incorporated IRC § 6511(c) does not apply. Accordingly, there is no special time limit applicable to Mack's refund claim, and the general rule stated in IRC § 6511(a) applies. Here, the longer period is three years from the filing of the 1987 Maryland return on September 13, 1988. Mack filed its claim on March 16, 1993, so that the refund was properly denied under the Comptroller's construction of IRC § 6511(c)(1).

   At oral argument Mack conceded that it was reasonable to construe IRC § 6511(a), when incorporated[***11] into § 13-1104, to refer to the Maryland return and the Maryland tax. IRC § 6511(a), however, is irrelevant, Mack submits, to its claim. That claim rises or falls on IRC § 6511(c), specifically addressing a federal assessment extension agreement.

   If Mack is correct concerning the effect under Maryland law of a federal agreement, then the parties agree that Mack is entitled to the full refund, with interest. It is agreed that under IRC § 6511(c)(2), and regulations interpreting it, the limit on the amount of Mack's refund claim would equal the total of the tax paid after execution of the federal agreement and the amount paid within three years immediately preceding execution of that agreement. Mack is well within that limitation [*613] inasmuch as its estimated tax payments in September and December of 1987 totaled $1,100,000.

   In their arguments the parties have addressed the construction of § 13-1104(c)(1) from the standpoint of (1) the language of the provision, read in light of the statute as a whole, (2) the legislative history and purpose, and (3) the administrative practice. We shall follow that outline as well.

   I

   Section 13-1104(c)(1) incorporates "the periods of limitations[***12] ... set forth in § 6511 of the Internal Revenue Code," including the special rule in IRC § 6511(c)(1) which measures the time limit from the expiration of an IRC § 6501(c)(4) extension agreement. Nothing in the Maryland statute expressly modifies the incorporated language making the federal agreement the trigger commencing the running of the period. An argument that, in the process of incorporation, one should substitute corresponding Maryland provisions for the federal provisions encounters the difficulty that there is no Maryland tax statute on the subject of agreements extending the time for assessing additional income tax. Nor is there any regulation or administrative release of the Comptroller alerting taxpayers to the necessity for an extension agreement with the Comptroller, in addition to an extension agreement with the IRS, in order to claim a refund on a ground other than one resulting from an adjustment of the taxpayer's federal return for the same period.

   The Comptroller recognizes that IRC § 6511(c)(1) "makes sense because of the natural possibility that the detailed examination of returns that is common to assessments can also lead to related examinations favorable[***13] to the taxpayer." Brief of Appellant at 12. It also "makes sense" to us that the detailed examination of returns that is prompted by a potential federal assessment can also lead to the discovery of errors that reduce only the Maryland tax. Under the Comptroller's construction, a taxpayer who wishes to preserve the contingent right to claim a refund can do so only by seeking an [*614]extension agreement from the Comptroller and thereby invite an assessment that the Comptroller had not contemplated making. Such a course of action is so contrary to human nature that the General Assembly seemingly would have set forth that requirement in clear language, had that been the intent.

   The Comptroller also argues that Mack's construction creates a one-sided situation "because a federal consent to assessment does not allow Maryland to assess additional [**781] tax for the same period." Brief of Appellant at 13. The difference is explained by the Maryland statutes concerning assessment, and the relatively heavy reliance of the Maryland income tax system on federal enforcement of the federal tax. The general statute of limitations on assessment of Maryland income tax is three years from the later of the[***14] filing of, or due date for, the return. § 13-1101(a). A taxpayer who enters into a federal assessment extension agreement is not required to notify the Comptroller of that fact at or about the time of the agreement. If the IRS issues a final determination that increases federal taxable income, a Maryland taxpayer, within ninety days after that determination, is obliged to submit to the Comptroller a report of the federal adjustment, including the amount of the increase. § 13-409; Md. Regs. Code tit. 3, § .04.02.11 (1992) (COMAR). If the taxpayer fails to report the federal adjustment within the ninety day period, the three year limit on assessment of income tax no longer applies, and the Comptroller may make an assessment at any time. § 13-1101(b). If the report of federal adjustment is timely filed, the Comptroller has one year following receipt of the report within which to assess additional tax. § 13-1101(c). Conversely, as we have seen above, if the final federal determination results in a decrease in Maryland tax, a refund is available without prior notice to the Comptroller. § 13-1104(c)(2) and (4). These provisions do not reflect any concern that the Comptroller be contemporaneously[***15] advised of a federal extension agreement, and they form no basis for reading a requirement [*615] for a Maryland extension agreement into § 13-1104(c)(1)'s incorporation of IRC § 6511(c)(1).

   II

   The circuit court and the Tax Court were particularly persuaded by the legislative history of § 13-1104(c), as are we. The present language of the section was enacted by Chapter 175 of the Acts of 1989. That enactment repealed the predecessor version of § 13-1104(c) of the Tax-General Article, which read as follows:

   "(1) Except as provided in paragraph (2) of this subsection, a claim for refund of ... income tax for a period may not be filed after 3 years from the date on which the return covering the period is due.

   "(2) If, within 3 years from the due date of a return for a taxable year, a person files a protective claim or otherwise gives the tax collector notice of a pending federal audit or federal claim for refund with respect to that year, a claim for refund for that year, based on a federal adjustment or federal claim for refund, may be filed at any time."

   The present statute was a departmental bill of the Comptroller's Office, House Bill 225. As introduced, H.B. 225 would have replaced[***16] the then existing system that required the filing of protective claims. The original version of H.B. 225 would have permitted refunds to be claimed within varying periods of limitations, one of which was two years from the date of the final adjustment report of the IRS. House Bill 225 was amended, after introduction, to the form of present § 13-1104(c). The amendments were prepared by counsel to the Comptroller. The purposes of the amendments were described in a memorandum from the draftsperson to the Director of the Income Tax Division of the Comptroller's Office dated January 27, 1989. That memorandum was included within the bill file of the Department of Legislative Reference on H.B. 225. Those purposes were to:

   "1. Carry through the original concept of H.B. 225 of expanding the permitted time for filing of claims for refund;

   [*616] "2. Increase the conformity of the Maryland Income Tax Law to Federal Income Tax Law by adopting Federal law with respect to claims for refunds; and
 
"3. Simplify and/or eliminate the more complex features of the original H.B. 225."

   The further explanation of the draftsperson included the following:

   "The original concept for H.B. 225 remains unchanged. [***17] Under current Maryland law, unless a taxpayer files a protective refund claim (which very few do), the taxpayer is not entitled to any refund unless the claim for refund is filed within three years of the due date of the return. [**782] This provision is more strict than the corresponding provision of the Internal Revenue Code, (Section 6511) and often operates to the detriment of Maryland taxpayers who choose to pay a tax that is being tested (to avoid additional interest), only to find, after prevailing, that they are not entitled to refund of that tax if their refund claim was not filed within three years of the due date of the return.

   "The amendment that I have drafted eliminates this problem by specifically incorporating the refund provisions of Section 6511 of the Internal Revenue Code into the Maryland law. The amendment adding new paragraph 1 to subsection C incorporates Section 6511 with respect to the time within which the refund claim must be filed, and the amendment adding new paragraph 3 to subsection C incorporates the provisions of Section 6511 with respect to limitations on the amount of the refund that may be allowed."
 
In the case before us the Comptroller seeks a construction[***18] of § 13-1104(c)(1), with incorporated IRC § 6511(c)(1), that conditions the right to a refund on an implied requirement that the taxpayer and Comptroller have effected an extension agreement for the assessment of Maryland taxes. That construction inserts an unarticulated trap for the unwary into the statute, one primary purpose of which was to eliminate an articulated trap for the unwary. Thus, the [*617] construction for which the Comptroller contends violates one of the cardinal principles of statutory construction, namely, to construe statutes so as to effectuate the legislative purpose. See Prince George's County v. Vieira, 340 Md. 651, 658, 667 A.2d 898, 901 (1995); City of Baltimore v. Cassidy, 338 Md. 88, 93-94, 656 A.2d 757, 760 (1995); Kaczorowski v. City of Baltimore, 309 Md. 505, 513-14, 525 A.2d 628, 632 (1987).

   III

   The Comptroller also relies on agency interpretation or administrative practice as described in the testimony before the Tax Court of Joseph Parran (Parran), an audit supervisor for the Comptroller's Office whose experience with refund claims started primarily in January 1993. Parran testified that the Comptroller's Office had "consistently" interpreted[***19] § 13-1104 to mean that any agreement between a taxpayer and the IRS to extend the federal statute of limitations would not extend the period for a Maryland assessment, or for filing a Maryland refund claim. Parran stated that the Comptroller's Office did not monitor activities concerning the limitations period for federal assessments. He testified that the Comptroller's interpretation was that an extension of the time for making an assessment of Maryland tax automatically extended the time for filing a refund claim for the same year.

   On cross-examination, Parran acknowledged that extension agreements between the State and taxpayers have been effected only when the Comptroller is conducting an audit of a taxpayer. Further, to his knowledge, the Comptroller's interpretation has been asserted only as to two other taxpayers, in addition to Mack. Both instances arose in 1993. The record is unclear whether the two other applications of the interpretation antedated or post-dated the rejection of Mack's refund claim.

   Judge Davidson, writing for the Court in Comptroller v. John C. Louis Co., 285 Md. 527, 404 A.2d 1045 (1979), reviewed [*618] some of the rules relating to the use of administrative[***20] interpretation or practice in the construction of statutes.

   "In determining the proper weight to be accorded an administrative interpretation or practice, various factors must be taken into account. One of these factors is the consistency of the administrative interpretation or practice with the purposes of the statute. Still another is the thoroughness, breadth, and validity of the considerations underlying the administrative interpretation or practice. The method by which the agency established its interpretation or practice reflects varying degrees of study and evaluation of the particularized problem. Certain methods indicate less thoroughness and breadth than others. Thus, if an administrative interpretation has not resulted from a contested adversary proceeding, or from a promulgated administrative decision, rule, regulation, or departmental [**783] statement, it is entitled to relatively little weight. Similarly, if the administrative practice has not been publicly established, it is not entitled to substantial weight."
 
Id. at 544, 404 A.2d at 1055-56 (citations omitted).
 
In the instant matter the evidence of administrative practice is modest indeed, apparently consisting[***21] at best of two other applications of the interpretation. It is an interpretation which has never been publicly promulgated. It is at odds with the legislative purpose reviewed in Part II, supra, and it falls far short of demonstrating legislative acquiescence in a long-standing administrative construction. See Maryland Classified Employees Ass'n v. Governor, 325 Md. 19, 33, 599 A.2d 91, 98 (1991), cert. denied, 502 U.S. 1090, 112 S. Ct. 1160, 117 L. Ed. 2d 407 (1992); Sinai Hosp. v. Department of Employment & Training, 309 Md. 28, 46, 522 A.2d 382, 391 (1987) (published agency decisions in contested cases); Washington Suburban Sanitary Comm'n v. Mitchell & Best Co., 303 Md. 544, 559, 495 A.2d 30, 37 (1985) (interpretation originating in 1926 with subsequent re-enactment of applicable statutes).

   For all of the foregoing reasons the judgment of the Circuit Court for Anne Arundel County is affirmed.
 
[*619] JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AFFIRMED. COSTS TO BE PAID BY THE COMPTROLLER OF THE TREASURY. 

SAMUEL JONES, JR. v. STATE OF MARYLAND 
NO. 54, SEPTEMBER TERM, 1995
 
COURT OF APPEALS OF MARYLAND
 
343 Md. 448; 682 A.2d 248; 1996 Md. LEXIS 97

 September  12, 1996, FILED

   PRIOR HISTORY: [***1]

   Certiorari to the Court of Special Appeals (Circuit Court for  Anne Arundel  County). Raymond G. Thieme, Jr., JUDGE.

DISPOSITION: JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED. CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO AFFIRM THE JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY. COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID BY ANNE ARUNDEL COUNTY.

CORE TERMS:  crack cocaine, pocket, bulge, probable cause, readily apparent, credibility, touch, arrest, jeep, suspicion, seized, expert opinion, contraband, rock-like, trier of fact, expert witness, suppression hearing, pants pocket, seizure, motion to suppress, fact-finding, favorable, training, clearly erroneous, conjecture, suspicious, captain, immediately apparent, consent to search, subjective belief

COUNSEL: ARGUED BY Nancy S. Forster, Assistant Public Defender, (Stephen E. Harris, Public Defender, on brief) of Baltimore, MD, FOR PETITIONER.
 
ARGUED BY Kathryn Grill Graeff, Assistant Attorney General, (J. Joseph Curran, Jr., Attorney General, on brief) of Baltimore, MD, FOR RESPONDENT.

JUDGES: ARGUED BEFORE Murphy, C. J.; Eldridge, Rodowsky, Chasanow, Karwacki, Bell, and Raker, JJ. OPINION BY BELL, J.

OPINIONBY: BELL

OPINION:  
[*451] [**250] OPINION BY BELL, J.
 
FILED: September 12, 1996

   Samuel Jones, Jr., the petitioner, was charged with possessing with intent to distribute crack cocaine seized from his person during a search conducted on December 16, 1993. He moved to suppress the evidence. A hearing on that motion was held in the Circuit Court for Anne Arundel County. After that hearing, the matter having been held sub curia, the court granted the motion. Pursuant [***2]to Maryland Code (1974, 1995 Repl. Vol.) § 12-302(c)(3)(i) of the Courts and Judicial Proceedings Article n1, the State appealed that decision to the Court of Special Appeals. That court reversed and remanded the case for trial. State v. Jones, 103 Md. App. 548, 653 A.2d 1040 (1995). This Court, on the petitioner's request, issued the writ of certiorari to review the propriety of the judgment granting the motion to suppress. We shall reverse the judgment of the intermediate appellate court.

n1 That section provides:
 
In a case involving a crime of violence as defined in § 643B of Article 27, and in cases under §§ 286 and 286A of Article 27, the State may appeal from a decision of a trial court that excludes evidence offered by the State or requires the return of property alleged to have been seized in violation of the Constitution of the United States, the Constitution of Maryland, or the Maryland Declaration of Rights. 

   [*452] I.
 
The motions court accepted the suppression hearing testimony[***3] of Officer Sean W. Ottey as to the events leading to the petitioner's arrest. n2 Consequently, we will set out only Officer Ottey's version of the facts. n3 

n2 Officer Ottey's testimony was corroborated by that of Officer Thomas Rice, who, in a separate vehicle, was patrolling the same area of Annapolis at the same time. He testified that he accompanied Officer Ottey when he went to investigate the situation.

n3 The petitioner testified that he had not consented to being patted down and that he was not arrested until five months later. The motions court obviously did not believe the petitioner with respect to the former.

   While patrolling an area of Annapolis known for its high level of drug activity, an "open air drug market," Officer Ottey and Officer Rice noticed the petitioner and another man standing by themselves on the sidewalk near the intersection of Carver Street and Dorsey Avenue. After observing them briefly, the uniformed officers approached the two men, Officer Ottey taking the petitioner[***4] and Officer Rice the other individual. Officer Ottey informed the petitioner that he was in a known drug area and asked him why he was there. Without waiting for a reply, Officer Ottey then inquired whether the petitioner had any drugs or guns on him, to which the petitioner answered "no." At that point, Officer Ottey requested permission to "check" the petitioner and petitioner consented to be searched.

   Proceeding to pat the petitioner down, Officer Ottey felt a bulge when he reached the petitioner's left front pants pocket and he asked the petitioner what it was. Instead of responding to the question, the petitioner revoked his consent to search. Notwithstanding that revocation, Officer Ottey reached into the Petitioner's pocket and removed the source of the bulge, a package containing a substance which Officer Ottey recognized as crack cocaine. Officer Ottey retained custody of the substance, which, as later analysis confirmed, was crack cocaine, but he did not arrest the petitioner at that time. That occurred several months later.

   [*453] Focusing on his state of mind prior to the seizure, particularly as relates to the bulge he felt in the petitioner's pocket, the State asked Officer[***5] Ottey what his perception of the bulge was at that time. Officer Ottey had earlier testified that he was familiar with [**251] how crack cocaine is packaged for street-level sales and that he had conducted pat-downs in the past in which he had recovered crack cocaine. He had also testified that he had been involved in 20 drug arrests that year, 90% of which involved crack cocaine. Specifically, the State wanted to know, "What did you think it was?" Officer Ottey responded, "When I squeezed it, prior to him revoking consent, I could feel the numerous rock-like substances in there, and I knew right then and there that I had crack cocaine or ... in his pocket."(Emphasis added). The State continued the inquiry: "Based on your training and experience, was it readily apparent what it was, the nature of the substance?" In response, Officer Ottey said that it was, that, indeed, it was readily apparent to him that the substance was crack cocaine. Except for asking on redirect examination whether Officer Ottey had felt crack cocaine before, the State did not further delve into the basis for Officer Ottey's assertion of knowledge and certainty. On cross-examination, defense counsel sought to undermine[***6] Officer Ottey's testimony regarding his ability to identify crack cocaine by touch. n4 Inquiring into the grounds for Officer Ottey's asserted belief that the substance he felt in the Petitioner's pants pocket was crack cocaine, he asked, "If ..., for example, Judge Thieme was standing in the hall, and he [*454] ... provided you consent to search him, and you had felt in his pocket a similar item, would you have ... drawn ... the conclusion at that point that it was crack cocaine?" Officer Ottey replied, "Yes, sir." Moreover, although he also conceded that "being in an open-air drug market did add to [the] conclusion [he] had drawn based on touch ... the feeling that I observed," Officer Ottey left no doubt that location was not a critical factor in his identification. Responding to the question, "what is it about the object ... that led you to the conclusion that it was crack cocaine?," he said, "the texture of it, the way it felt." Having reminded the officer that he had neither smelled nor seen the substance, the petitioner asked if there were other criteria that led him to conclude that it was crack cocaine. Officer Ottey indicated that it was "just the way it felt," nothing else. [***7] 

n4 In Dickerson v. Minnesota, 508 U.S. 366, 375-76, 113 S. Ct. 2130, 2137, 124 L. Ed. 2d 334, 346 (1993), the Supreme Court held:
 
If a police officer lawfully pats down a suspect's outer clothing and feels an object whose contour or mass makes its identify immediately apparent, there has been no invasion of the suspect's privacy beyond that already authorized by the officer's search for weapons; if the object is contraband, its warrantless seizure would be justified by the same practical considerations that inhere in the plain view context. 
 
We have not addressed this issue. The parties and the trial court proceeded on the assumption that the "plain feel" doctrine was applicable in the case sub judice. We shall indulge the same assumption.

   At the conclusion of the hearing, the motions judge held the matter sub curia in order more carefully to read Dickerson v. Minnesota, 508 U.S. 366, 113 S. Ct. 2130, 124 L. Ed. 2d 334 (1993), the "plain feel" case, upon which the State relied. When[***8] he reconvened the hearing, he granted the petitioner's motion to suppress, explaining:
 
On December the sixteenth, nineteen ninety-three, Officer Ottey of the Annapolis City Police Department was on routine patrol in an area known as an open air drug market. And these are facts that I'm accepting. Officer Ottey approached the Defendant, asked him if he had any drugs or weapons, the Defendant replied that he did not. Ottey then asked if he could check. The Defendant replied that he could. Ottey then patted down the Defendant. In the Defendant's [left] pants pocket Officer Ottey felt a bulge. At this point, the Defendant requested the Officer to stop. 

   Officer Ottey testified, and I'm quoting, he immediately recognized [the bulge] to be crack cocaine. Despite the request that Officer Ottey cease, he seized the substance from the Defendant's pocket. The Defendant was not arrested at the time. 

   Now, there's no question, and the State concedes that the basis for the seizure was the probable cause issue not as [*455] any [**252] Terry type of situation[ n5 ] or anything else under the ... plain feel doctrine....

n5 Officer Ottey interpreted the petitioner's consent to being checked out as a consent to a frisk, even though the request itself was not expressly so limited. And the issue in this case is presented in that context. Consequently, we do not undertake to define in this case the scope of a consensual search and, in particular, whether, under the circumstances herein presented, a consensual search must be confined to the same limits as a frisk under Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).

[***9] 

   Now, the problem is, and the Officer testified as an expert, and I accept him as an expert, but ... it's not just a question of being an expert and coming in and saying the magic words like it was readily apparent would be the words from the Supreme Court .... I have to make my determination as to whether I'm going to accept the expert's opinion based upon the facts upon which his opinion was based. And there are insufficient facts for me to accept that opinion [in] the record. 

   For that reason, the Court will grant the Motion to Suppress. 

   II
 
The Court of Special Appeals, in a 2-1 decision, reversed the trial court's judgment. The majority reasoned: 
 
The issue decided was the existence ... of probable cause on the part of the officer. The appellate review of such an issue calls for our own independent de novo determination of whether Officer Ottey had enough data to permit him reasonably to conclude that he had probable cause. 

   In that regard, the historic fact of Officer Ottey's conclusion, even if not its accuracy, is before us for our review. It is our independent determination that 1) the presence of Jones on a corner in an "open air[***10] drug market"; 2) the detection of rock-like substances in Jones's pocket; 3) the officer's expert ability, based on his training and expertise, to recognize the feel of crack cocaine; and 4) the officer's conclusion that the rock-like substance he felt was crack [*456] cocaine was a legally sufficient basis to support the officer's probable cause determination.

   Since the officer's subsequent warrantless seizure of the crack cocaine was reasonable, the evidence should not have been suppressed.
 
Jones, 103 Md. App. at 615, 653 A.2d at 1073-74.

   The dissenting judge perceived the issue to be an entirely different one:
 
Although he accepted Officer Ottey as an expert witness, i.e., one who by training and experience is able to recognize crack cocaine by sight and by touch, Judge Thieme concluded that there had been presented insufficient evidence as to the extent of the officer's training, experience or tactile acuity to persuade him, as trier of fact, that it was "readily apparent" to the officer that what he felt in Jones's pocket while "patting him down" was crack cocaine. Certainly, that determination was first level fact-finding, which, not being clearly erroneous, [***11] is binding on us. Md. Rule 8-131(c). 
 
 Id. at 617, 653 A.2d at 1074 (Bloom, J. dissenting). Interpreting the motions court as ruling that the State had not established the basis for Officer Ottey's expert witness opinion, it concluded:
 
What this case boils down to, once we defer to Judge Thieme's finding that he does not accept the Officer's assertion that it was readily apparent to him that what he felt was crack cocaine, is that the Officer's seizure of the substance from appellee's pocket was based on suspicion, not probable cause. An experienced police Officer observed two men conversing on a street corner in a residential neighborhood, where drugs are sold with some degree of frequency. One of these men had something in his pants pocket that could have been crack cocaine. Because of the neighborhood, the Officer perhaps reasonably, suspected that the substance was crack cocaine, and based on that suspicion, which does not amount to probable cause, he seized the substance.
 
[*457] Id. at 619, 653 A.2d at 1075. The dissent pointed out that deference to the trial court's factual determination required that the trial [**253] court's ruling on the motion to suppress[***12] be upheld.

   The State's brief in this Court adopts the Court of Special Appeals' approach, de novo review of the trial court's ruling. The State acknowledged, however, that the appropriate standard of review depends upon whether the motions judge found: (1) that, when Officer Ottey felt the substance in the petitioner's pocket, he had no actual subjective belief that the substance was contraband or (2) that, while Officer Ottey did have a subjective belief that the substance was contraband, objectively, that belief did not amount to probable cause.

   The petitioner also offers two possible, though somewhat related, interpretations of what the motions judge did. First, he suggests that the motions judge determined, as a matter of credibility, that Officer Ottey only had a suspicion, not amounting to probable cause, regarding what was in the petitioner's pocket. The petitioner also asserts that the motions judge rejected Officer Ottey's expert opinion because it was not supported by the reasons upon which it was based - the State failed to provide sufficient facts as a foundation for Officer Ottey's testimony. Therefore, in the petitioner's view, the Court of Special Appeals erred[***13] by not deferring to the motions court's evidentiary findings.
 
III.

   When the question is whether a constitutional right, such as, as here, a defendant's right to be free from unreasonable searches and seizures, has been violated, the reviewing court makes its own independent constitutional appraisal, by reviewing the law and applying it to the peculiar facts of the particular case. Riddick v. State, 319 Md. 180, 183, 571 A.2d 1239, 1240 (1990) (citing State v. Gee, 298 Md. 565, 571, 471 A.2d 712, cert. denied, 467 U.S. 1244, 104 S. Ct. 3519, 82 L. Ed. 2d 827 (1984)). When the facts are in dispute, deference is paid to the trial court, that is, its findings of fact are [*458]accepted unless they are clearly erroneous. In making the latter determination, the court must give "due regard to the opportunity of the trial court to judge the credibility of the witnesses." Maryland Rule 8-131(c). n6 When the motion to suppress has been denied, the only relevant facts "are ... those produced at the suppression hearing, see Trusty v. State, 308 Md. 658, 521 A.2d 749 (1987), which are most favorable to the State as the prevailing party on the motion." Simpler v. State,[***14] 318 Md. 311, 312, 568 A.2d 22 (1990). On the other hand, when the motion is granted, the evidence produced at the suppression hearing must be considered in the light most favorable to the defendant. 

n6 Maryland Rule 8-131(c), Action Tried Without a Jury, provides: 
 
When an action has been tried without a jury, the appellate court will review the case on both the law and the evidence. It will not set aside the judgment of the trial court on the evidence unless clearly erroneous, and will give due regard to the opportunity of the trial court to judge the credibility of the witnesses.

   Accepting these principles, the State submits that the motions judge, by applying the law of probable cause to the facts of this case, determined, as a matter of law, that Officer Ottey did not have probable cause to seize the crack cocaine from the petitioner's pocket. It argues, therefore, that the Court of Special Appeals properly conducted de novo review of that ruling. n7 

n7 For this argument to succeed, the State has to establish that the ruling of the motions court was that Officer Ottey did not have probable cause to seize the cocaine, rather than being based on its fact-finding or credibility determination. In an effort to refute the latter possibilities, the State maintains that both the motions court and defense counsel believed that Officer Ottey had a subjective belief that the substance was contraband, citing as an example the court's use of the word, "suspicious," to describe Officer Ottey's level of certainty. Probable cause is defined as "a fair probability that contraband or evidence of a crime will be found in a particular place." Malcolm v. State, 314 Md. 221, 222, 550 A.2d 670, 673 (1988),(quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332, 76 L. Ed. 2d 527, 548 (1983) (citations omitted). As such, it requires less evidence than would justify conviction, but more evidence than mere suspicion. Edwardsen v. State, 243 Md. 131, 136, 220 A.2d 547, 550 (1966). Conceding, therefore, that the motions court believed that Officer Ottey was subjectively suspicious, that does not necessarily mean that it accepted Officer Ottey's testimony that he subjectively believed that what he felt was contraband and that that was immediately apparent prior to the petitioner revoking consent to search. In short, what the State points to simply does not establish the point for which it is offered.

   Other testimony by Officer Ottey also weighs against the State's argument because it provides a clear basis upon which the motions court could have disbelieved Officer Ottey. See discussion, Part V. infra.

[***15]

   [*459] [**254] In order for this argument to succeed, however, the State must demonstrate that the motions judge actually made a probable cause determination and did not, as the dissenting opinion in the intermediate appellate court opined, reject Officer Ottey's testimony because the facts the State adduced failed to substantiate his opinion. The approach of the Court of Special Appeals' majority was to label illogical both the motions judge's analysis and the result he reached thereby. It reasoned:
 
Judge Thieme ... seemed to accept the truth of all of the premises that went into the building of a syllogism and then, inexplicably, found the conclusion invalid. He accepted fully the credibility of Officer Ottey. He accepted the historic facts of the "open-air drug market" and of the detection of the rock-like substance in Jones's pocket by Officer Ottey. He accepted Officer Ottey as an expert on the feel of crack cocaine, for that was the only issue on which Officer Ottey's expertise had any possible relevance. He accepted the fact that Officer Ottey concluded that what he felt was crack cocaine. Judge Thieme simply declined to accept the validity of Officer Ottey's conclusion.

[***16]

   In effect the decision was, 'I accept the officer's expert ability to recognize crack cocaine when he felt it. He said that what he felt was crack cocaine, but I don't buy it.'[ n8 ]

n8 The State conceded at oral argument that the trial court can accept the expert as an expert but reject the expert's conclusion on probable cause.

 
Under this approach, a motions court that finds a witness, whom it has also accepted as an expert, credible with regard to the facts, necessarily must accept whatever conclusion that witness may draw from those facts.

   [*460] In performing its fact-finding role, the trier of fact decides which evidence to accept and which to reject. Therefore, in that regard, it is not required to assess the believability of a witness's testimony on an all or nothing basis; it may choose to believe only part, albeit the greatest part, of a particular witness's testimony, and disbelieve the remainder. Muir v. State, 64 Md. App. 648, 654, 498 A.2d 666 (1985), aff'd, 308 Md. 208, 517 A.2d 1105 [***17](1986). Moreover, it is the trier of fact that decides to what, if any, weight the evidence adduced is entitled. And, having accepted a witness's testimony as to the facts, it is the trier of fact that must draw the inferences reasonably deducible therefrom. McMillian v. State, 325 Md. 272, 290, 600 A.2d 430 (1992). Consequently, absent clear error in its fact-finding, an appellate court is required, in deference to the trial court, to accept those findings of fact. Maryland Rule 8-131(c). Furthermore, Rule 8-131 (c) and its predecessors were "only intended to prevent manifest error;" they were not "intended, and will not be construed to permit [an appellate court] to reverse judgments merely because [its] conclusion on the record is different from that of the trial judge." Lambert v. State, 196 Md. 57, 68, 75 A.2d 327, 332 (1950).

   As already indicated, the evidence adduced at the motions hearing is to be viewed in the light most favorable to the petitioner. So viewed, there are two interpretations of the trial court's decision that establish that it is not clearly erroneous or founded on a faulty premise. First, the evidence supports the motions court's conclusion that[***18] Officer Ottey did not provide any, not to mention an adequate, predicate as to how, or why, he was able to identify the substance in the petitioner's pocket as crack cocaine. Second, based on the evidence before it, the motions court could have disbelieved Officer Ottey's statement of his ability to identify crack cocaine on the basis of feel alone, i.e., it did not believe that what he felt in the petitioner's pocket was readily apparent to the officer. We shall address each of these possible interpretations in turn.

   [*461] IV.
 
Concluding his oral opinion, the motions judge stated, "There are insufficient [**255]facts for me to accept [Officer Ottey's] opinion [in] the record." Thus, the motions judge seemed to determine that the evidence was insufficient, that the basis for the officer's conclusion was inadequate. This was an evidentiary determination of the kind covered by Rule 8-131(c). The State had the burden of proof, including offering a sufficient evidentiary predicate for any opinion or conclusion that one of its witnesses might draw. Where the testimony of an expert witness is at issue, unless the motions court is satisfied that the State has provided a basis for the conclusions[***19] that expert draws and that determination is not clearly erroneous, it is free to reject the expert's opinion.

   Under Maryland law,
 
an expert must testify to the basis of his or her opinion before the expert may testify to the opinion. If the basis is one of first-hand knowledge, the expert must testify to the gaining of that knowledge .... The expert's opinion is of no greater value than the soundness of the reasons given for it will warrant. If no adequate basis for the opinion is shown, the opinion should not be admitted or, if already admitted, should be stricken. 
 
L. McLain, Maryland Evidence § 705.1 (1987). Moreover, as we have held: 
 
"An expert opinion 'derives its probative force from the facts on which it is predicated, and these must be legally sufficient to sustain the opinion of the expert.' Specifically, ...: 

The premises of fact must disclose that the expert is sufficiently familiar with the subject matter under investigation to elevate his opinion above the realm of conjecture and speculation, for no matter how highly qualified the expert may be in his field, his opinion has no probative force unless a sufficient basis to support[***20] a rational conclusion is shown. State, Use of Stickley v. Critzer, 230 Md. 286, 186 A.2d 586, and cases cited therein; Hammaker v. [*462]Schleigh, 157 Md. 652, 147 A. 790. The opinion of an expert, therefore, must be based on facts, proved or assumed, sufficient to form a basis for an opinion, and cannot be invoked to supply the substantial facts necessary to support such conclusion. The facts upon which an expert bases his opinion must permit reasonably accurate conclusions as distinguished from mere conjecture or guess. Marshall v. Sellers, 188 Md. 508, 53 A.2d 5.
 
Beatty v. Trailmaster, 330 Md. 726, 741, 625 A.2d 1005, 1011-1013 (1993)(emphasis added)(quoting State Department of Health, et al. v. Walker, 238 Md. 512, 520, 209 A.2d 555, 559-60 (1964)). See also Evans v. State, 322 Md. 24, 34-5, 585 A.2d 204, 208-09 (1991); Bohnert v. State, 312 Md. 266, 274-75, 539 A.2d 657, 661 (1988).

   In Beatty, this Court held that the opinion given by the plaintiff's expert "is insufficient evidence to survive summary judgment particularly when the expert [does not] cite[] ... sound data to buttress his opinion." 330 Md. at 740, 625 A.2d at 1013 (1993).[***21] In that case, the status of the witness as an expert was not challenged. Id. at 740-744, 625 A.2d at 1012-14. Thus, Beatty demonstrates the principle that the mere recognition of a witness as an expert does not guarantee the acceptance of his or her expert opinion. An expert's opinion may be the basis for the trier of fact's conclusion and, so, should be considered, only if an adequate predicate for that opinion is shown; otherwise, it should be stricken. Whether a proper foundation for the opinion has been laid is a matter to be determined by the motions judge and, absent manifest error, is not reversible by an appellate court. Md. Rule 8-131(c); State v. Raines, 326 Md. 582, 590, 606 A.2d 265, 268 (1992); Wilson v. State, 319 Md. 530, 535, 573 A.2d 831, 833 (1990).

   These principles were applied in State, Use of Stickley, et al. v. Critzer, 230 Md. 286, 186 A.2d 586 (1962). There, the widow of the deceased sued Critzer for pecuniary loss caused by his negligent operation of a Jeep in which her husband was a passenger. In defense, Critzer testified that the deceased [*463]was the driver of the Jeep and, in support of that testimony, called a police captain as its expert[***22] on automobile crashes. Although the captain's testimony revealed that he had viewed only photographs of the jeep taken at the scene of the accident, the Jeep having been moved before he inspected it, he proposed [**256] to give an expert opinion as to who was driving the jeep at the time of the accident. The trial judge refused to allow the captain to state that opinion, explaining: 
 
The Captain did not point out what he saw in the photographs or in his examination of the Jeep that enabled him, as an expert, to arrive at a conclusion of who was its driver. ... With the record in this state, it is obvious that the opinion would have been based largely, if not wholly, upon conjecture.
 
Id. at 290-91, 186 A.2d at 588.

   Unlike Critzer, in this case, Officer Ottey gave his expert opinion, without objection. Nevertheless, when the trier of fact is the court, the issue is the same: is there a sufficient factual basis for that opinion? In this case, just as in Critzer, having decided that insufficient facts had been produced in justification, the motions judge could quite properly disregard Officer Ottey's opinion.
 
   To testify that one knows what a particular substance[***23] is solely from touch is not irrefutable proof of the accuracy of that assertion. If it were, all the proof that would be necessary would be the incantation of "the magic words." That, as the motions judge stated is not enough. Instead, the conclusion must flow logically from the facts.

   Analysis of the record reveals that the evidence the State elicited did not necessarily provide an adequate foundation for Officer Ottey's opinion. Indeed, the total evidence relevant to Officer Ottey's being able to identify crack cocaine by touch consisted of the following. n9 Officer Ottey testified that he: [*464] had made five arrests in that area in the past; had executed search warrants in that area; had made a total of twenty drug arrests in 1993, 90% of which involved crack cocaine; knew how crack cocaine typically was packaged; and had felt crack cocaine numerous times. He further stated that the bulge felt like it contained "numerous rock-like substances."

n9 The State's evidence established that the intersection in question was in the midst of a high drug area, as we have seen. Ordinarily, this would be relevant to the identification of the seized substance. Officer Ottey, however, undermined and, at the very least, confused its probative value when he denied that his perception of the nature of the substance in the petitioner's pocket was affected by the location. In fact, he stated that if he had felt something in the motions judge's pocket that provided his fingers with the same sensation, he would conclude that the substance was crack cocaine even if that occurred in the courthouse.

[***24]

   To be sure, Officer Ottey's testimony provided a general description of his experience in conducting drug searches. It did not disclose, however, the number of times Officer Ottey had identified crack cocaine through a layer of clothing during previous pat-down searches or describe how crack cocaine feels to the touch. That testimony, thus, did not tend to explain how Officer Ottey was able to identify crack cocaine by touch; it did not shed any light on the reliability of his opinion in that regard. In fact, aside from the opinion, the only other evidence of the officer's tactile acuity was his affirmative response to the question whether, in the past, he had found crack cocaine on defendants while patting them down.

   The State also elicited from Officer Ottey testimony regarding how crack cocaine typically is packaged, but, having done so, did not further attempt to connect that testimony to the search in question. In short, Officer Ottey's suppression hearing testimony that it was immediately apparent to him that what he felt was crack cocaine was nothing more than a conclusion and, as such, could be rejected. L. McLain, Maryland Evidence § 705.1. n10 After hearing Officer [***25]Ottey's testimony, [*465] the motions judge described Officer Ottey's level of certainty as a "suspicion" and commented, "It could be many things there that could give that same sense of touch. That's the troubling aspect of it." It is clear, [**257] therefore, that the motions judge was not convinced that this difficult identification was justified on the basis of the evidence before him. 

n10 By way of contrast, in the District Court, albeit on cross-examination, Officer Ottey went to some pains to describe exactly how crack cocaine feels to the touch. The defense attorney had attempted to discredit the officer's testimony that he had immediately recognized that the substance in the bulge as crack cocaine; however, his questioning seemed only to substantiate the Officer's ability to identify crack cocaine by "plain feel" through a pants pocket. Perhaps that explains why defense counsel did not pursue this line of questioning at the circuit court suppression hearing.

   V.

   The result reached by the motions judge is sustainable[***26] on an alternative ground: the motions judge simply did not find Officer Ottey credible when Officer Ottey said that the nature of the substance was readily apparent to him when he felt it.

   Determining the credibility of witnesses and the weight of the evidence produced at trial are not matters entrusted to the appellate courts. State v. Raines, 326 Md. at 590, 606 A.2d at 268; Wilson v. State, 319 Md. at 535, 573 A.2d at 833-34. Credibility is defined as "worthiness of belief; that quality in a witness which renders his evidence worthy of belief." Black's Law Dictionary 255 (6th ed. 1991). Credibility is also defined as "the quality or power of inspiring belief." Webster's Third international Dictionary of the English Language Unabridged 532 (1981). Aspects of Officer Ottey's testimony could have undermined the motions judge's confidence in his credibility. Officer Ottey's testimony that he knew immediately upon feeling and manipulating the bulge that it was crack cocaine seemed to have been contradicted by the following testimony: (1) Upon feeling the bulge, Officer Ottey asked the petitioner what the bulge contained n11; (2) responding to the inquiry, "what did[***27] you think it was?, Officer Ottey stated that the "rock-like" substance in the petitioner's pocket was "crack cocaine or ...," pausing before [*466] continuing to the end of his thought; (3) despite testifying to being certain that he had seized crack cocaine from the petitioner's pocket, Officer Ottey did not then arrest the petitioner. That Officer Ottey explained why he had not arrested the petitioner, and the motions judge was privy to that explanation, did not obligate the court to draw the inference favorable to the State; it well could have concluded that Officer Ottey was merely suspicious, but not to the extent required for probable cause that the substance in the petitioner's pocket was crack cocaine. n12

n11 A reasonable trier of fact could infer from what then occurred that the revocation of consent had the effect of solidifying the officer's suspicion.

 

n12 The motions judge had before him Officer Ottey's "Application for Statement of Charges/Statement of Probable Cause," which was completed December 17, 1993, the day after the seizure. In that document, Officer Ottey wrote: 
 
I was unsure of my search and in lieu of arresting I had a MD Photo I.D. with the defendant's, Samuel Jones, Jr., information. I obtained this information knowing that I could apply for a warrant after conferring with narcotics.

   I went to A.P.D. (Annapolis Police Department) and spoke with Sgt. Groh of narcotics. He told me I had a good search and to apply for a warrant. 
 
Defense counsel also introduced into evidence a transcript of the officer's testimony at the Preliminary Hearing.

   In District Court, Officer Ottey testified that, when the petitioner revoked his consent to be searched, it was readily apparent to him that the bulge contained crack cocaine. He explained that he had proceeded to seize the substance based on his vague knowledge of Minnesota v. Dickerson, 508 U.S. 366, 113 S. Ct. 2130, 124 L. Ed. 2d 334 (1993). The vagueness of his knowledge, he said, also caused him to think it wiser not to arrest the petitioner immediately and to get a second opinion regarding the legality of his actions.

[***28] 
 
JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED. CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO AFFIRM THE JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY. COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID BY ANNE ARUNDEL COUNTY.

                       
KAREN M. LAWHORNE et vir. v. EMPLOYERS INSURANCE COMPANY OFWAUSAU 
No. 78, September Term, 1995
 
COURT OF APPEALS OF MARYLAND
 
343 Md. 111; 680 A.2d 518; 1996 Md. LEXIS 74

 August  2, 1996, Filed

   PRIOR HISTORY: [***1]

   Certiorari to the Court of Special Appeals (Circuit Court for  Anne Arundel  Co.). Bruce C. Williams, JUDGE.

DISPOSITION: JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED. COSTS TO BE PAID BY THE PETITIONERS.

CORE TERMS:  interpleader, claimant, deposit, insurer, prejudgment interest, insured, interpleader action, stakeholder, pie-slicing, settlement, deposited, negotiations, directing, coverage, tortfeasor, liability insurance, bankruptcy estate, automobile policy, unnecessary delay, liability policy, bodily injury, pickup truck, liquidated, registry, lifting, Maryland Rule, liability insurer, personal injury, direct action, instituted

COUNSEL: ARGUED BY Robert O. Johnston (Johnston, Rivlin & Foley, L.L.P. on brief) of Washington, DC, FOR PETITIONER.
 
ARGUED BY Michael S. DeBaugh (George L. Huber, Lord & Whip, P.A., on brief) of Baltimore, MD, FOR RESPONDENT.

JUDGES: ARGUED BEFORE Murphy, C.J.; Eldridge, Rodowsky, Chasanow, Karwacki, Bell, and Raker, JJ.

OPINIONBY: Rodowsky

OPINION: [*113] [**519] Opinion by Rodowsky, J.

   Presented here is an interpleader action brought by an automobile liability insurer faced with multiple claims against an insured that exceeded the limits of the insured's coverage. The issue is whether the claimants are entitled to interest on $849,680.16 for the period of more than two years that elapsed from the filing of the interpleader action to the payment of that sum into court, a delay principally caused by the bankruptcy of the [**520] insured. The circuit court would not order prejudgment interest, and the Court of Special Appeals affirmed in an unreported opinion by a divided panel. We granted the claimants' petition for[***2] certiorari in order to consider this issue.

   The insurer and original plaintiff in interpleader is the respondent, Employers Insurance Company of Wausau (Employers). [*114] The automobile accident underlying the interpleader action occurred on November 27, 1984. For a period encompassing that date Employers had issued a business automobile policy to Beltran Corporation (Beltran) of Acton, Massachusetts and to its subsidiaries, including Acton Foodservices Corporation (Acton), as additional named insureds. The accident occurred in Cecil County, Maryland when a tractor trailer truck, operated on behalf of Acton by its employee, Louis Wallace Powell (Powell), pulled into the roadway of U.S. Route 301 at its then foggy intersection with Route 299. A pickup truck, towing a horse trailer with two horses and proceeding on U.S. Route 301, crashed into the tractor trailer. Petitioner Karen M. Lawhorne, then wife of petitioner Darrell F. Lawhorne, was a passenger in the pickup truck. Mrs. Lawhorne suffered totally disabling injuries as a result of the accident. n1 Two other persons in the pickup truck suffered bodily injuries in the accident, the operator, Kelley Ann Corrigan, and her mother, Mary[***3] Anna Corrigan.

n1 We were advised at oral argument that Mrs. Lawhorne died after the parties' briefs were filed in this Court. Although we find no indication that a person has been substituted for Mrs. Lawhorne as a party, see Maryland Rules 8-401(b) and 2-241, Mr. Lawhorne, one of the petitioners, has standing in his own right, as an original defendant in the interpleader action, to pursue the appeal.

   In this opinion we shall refer to the applicants for review in this Court, as "the petitioners" or "the Lawhornes."

   The Lawhornes sued Acton and Powell in December 1985 in the Circuit Court for Anne Arundel County. Employers undertook defense. Unknown to the Lawhornes and to Employers, Acton had filed a petition for bankruptcy in Massachusetts in June 1985.

   The record is unclear as to whether Acton was the subject of one, or more than one, bankruptcy proceeding and, if more than one, precisely when any earlier proceeding terminated and any later proceeding commenced. It is clear, however, that on or about April[***4] 17, 1986, Beltran and various of its subsidiaries filed petitions under the Bankruptcy Code which were consolidated in the District of Massachusetts and that [*115] the consolidated proceedings included Acton. There is also an evidentiary conflict over the earliest date as of which Employers was on notice that Acton was in bankruptcy. Imprecision and conflicts on these aspects of the matter before us are immaterial, in view of our ground of decision, explained below.

   Employers filed the subject interpleader in the Circuit Court for Anne Arundel County on April 27, 1987. It named as defendants Employers' insureds, the bodily injury claimants, and property damage claimants, including a subrogated insurer. The complaint alleged that Employers "will pay into the registry of this Court the sum of $1,000,000.00, less credit for payments heretofore made ...." The relief requested by the complaint included a court order "directing and authorizing [Employers] to deposit with the Clerk of this Court the sum of $1,000,000, less credit for amounts previously paid ... and, upon such payment, [discharging Employers] from any and all further obligations under the terms of its policy of insurance." [***5] n2 Employers requested that the defendants be ordered to "interplead and settle among themselves their rights and claims" to the amount payable under the liability policy, and that the defendants be enjoined from instituting or further prosecuting actions arising out of the accident.

n2 Part IV.A.2 of the Employers policy in part states: "Our payment of the LIABILITY INSURANCE limit ends our duty to defend or settle." This aspect of interpleader actions filed by liability insurers is not involved in the issue before us, and we intimate no opinion thereon. Some of the legal problems involved in interpleaders brought by liability insurers are discussed in Morris, The Use of an Interpleader Action to Resolve Multiple Claims from One Accident, 51 Ins. Council J. 99 (Jan. 1984).

   Answering the complaint for interpleader in June 1987, the Lawhornes raised no objection [**521] to the use of interpleader and requested that the "appropriate sum" be paid into court and invested in an interest-bearing account(s). Employers[***6] did not deposit the balance of the liability coverage with the court, and no party at that time sought a court order requiring the deposit.

   [*116] Almost two years later, on May 30, 1989, the Lawhornes moved for an order directing Employers to deposit the balance of the policy limits in court. By an order of June 29, 1989, the circuit court directed Employers to deposit that balance, namely, $849,680.16. During the pendency of the interpleader Employers had settled the property damage claims and had advanced $81,324.31 for the care of Mrs. Lawhorne. The order directing deposit of the balance further directed the court clerk to make a distribution of that balance to the bodily injury claimants in specified amounts upon which they obviously had agreed. Employers paid the balance into court on the day immediately following passage of the order to deposit. The Lawhornes and their counsel received $712,180.16.

   During the period between the filing of the interpleader and the deposit of the funds, the parties to the interpleader, and others, were occupied in efforts to settle the tort claims. These settlement negotiations involved the trustee in bankruptcy of Acton because, as explained below, [***7] the amount available under a policy of liability insurance issued to a debtor against whom tort claims are asserted is an asset of the debtor's bankruptcy estate. Further, inasmuch as Employers was willing to pay policy limits, Employers advised the Lawhornes to negotiate with Acton's excess liability carrier, Mission Insurance Company (Mission), a California-based insurer. In late 1986 or early 1987 Mission was placed in liquidation in California. Consequently, the settlement negotiations expanded beyond the parties to the interpleader action and Acton's trustee in bankruptcy to include the liquidator of Mission and the Massachusetts Insurance Insolvency Fund (MIIF).

   The lengthy negotiations led to a structured settlement under which Employers' contribution was to be an annuity for Mrs. Lawhorne purchased from an affiliate of Employers. When the settlement agreement was circulated for signature, however, the Acton trustee concluded, after analyzing claims and assets of the bankruptcy estate, that Acton could not fund its portion of the settlement. In addition, MIIF advised that [*117] it did not provide the level of coverage that had been anticipated. The long awaited settlement fell through. [***8]

   The Lawhornes then concentrated their efforts on lifting the bankruptcy stay. It was lifted by the Bankruptcy Court on May 15, 1989. There followed in this interpleader action the Lawhornes' motion for an order directing the deposit of funds, described above, and a counterclaim by the Lawhornes seeking interest on the net of the liability policy limits. That counterclaim was decided favorably to Employers on its motion for summary judgment. That interest issue, however, was not resolved until May 1994, for reasons that are not relevant to the instant matter.

   Petitioners contend that prejudgment interest is awardable in this case under: (1) the law governing interpleader actions; (2) Maryland Code (1974, 1995 Repl. Vol.), § 11-301 of the Courts and Judicial Proceedings Article (CJ); and (3) the law governing constructive trusts.

   Petitioners give the following explanation of their first theory for prejudgment interest:
 
"The requested award does not derive from the mere act of filing the interpleader action. Nor do the Lawhornes seek an award of interest based on an obligation to pay interest, such as that created by a note or a loan. Rather it is simply bedrock logic that[***9] leads to the conclusion that the stakeholder should pay interest, where it would be inequitable not to make it do so.
 
Appellants' Brief at 14. In support of this position petitioners cite decisions from federal courts. Analysis of petitioners' argument begins with some background on interpleader in Maryland and in federal practice.

   Chief Judge Murphy, writing for this Court in Farmers & Mechanics Nat'l Bank v. Walser, 316 Md. 366, 558 A.2d 1208 (1989), [**522] reviewed the evolution of modern interpleader. It "is derived from the chancery practices of the eighteenth and nineteenth centuries ...." Id. at 372, 558 A.2d at 1211. During [*118]the nineteenth century, due to the work by Professor Pomeroy, courts rather rigidly considered that there were four requirements for a strict bill of interpleader. Id. at 373, 558 A.2d at 1211. In addition to a res claimed by two or more parties that was held by a stakeholder who had no interest in the res nor any independent liability to the claimants, "'all [the claimants'] adverse titles or claims must be dependent, or be derived from [a common] source." Id. (quoting 4 J. Pomeroy, Equity Jurisprudence § 1322, at[***10] 906 (5th ed. 1941)). In Farmers & Mechanics Nat'l Bank, we further explained how "the viability of the classic interpleader requirements was further eroded" by Fed. R. Civ. P. 22 governing interpleaders. 316 Md. at 375, 558 A.2d at 1212. That federal rule in part provides that "it is not ground for objection to the joinder that the claims of the several claimants or the titles on which their claims depend do not have a common origin or are not identical but are adverse to and independent of one another ...." Fed. R. Civ. P. 22. We then pointed out that, in 1961 when this Court adopted former Subtitle BU, "Interpleader," of the Maryland Rules of Procedure dealing with Special Proceedings, the "rules established a procedure for interpleader which was closely analogous to the federal practice, drawing upon both the federal rule's language and the case law which arose from it." 316 Md. at 379-80, 558 A.2d at 1214. Interpleader in Maryland courts is now governed by Maryland Rule 2-221.

   Rule 2-221(a) in part provides that "an action for interpleader or in the nature of interpleader may be brought against two or more adverse claimants who claim or may claim to be entitled to property." [***11] An interpleader complaint "shall specify the nature and value of the property and may be accompanied by payment or tender into court of the property." Id. "After the defendants have had an opportunity to answer the complaint and oppose the request for interpleader," the court is to schedule a hearing. Rule 2-221(b). Following the hearing the court is authorized to enter an order with a variety of provisions, among which is one directing[*119] 
 
"the original plaintiff (the party bringing the interpleader action) to deposit the property or the value of the property into court to abide the judgment of the court or to file a bond with such surety as the court deems proper, conditioned upon compliance by the plaintiff with the future order or judgment of the court with respect to the property[.]"
 
Rule 2-221(b)(3).

   There is authority from nineteenth century chancery practice under which the plaintiff in interpleader "must bring the money or thing claimed into Court, so that he cannot be benefitted by the delay of payment, which may result from the filing of his bill." Atkinson v. Manks & Holroyd, 1 Cow. 691, 704 (N.Y. 1823), an appeal from the Court of Chancery. Maryland[***12] Rule 2-221 changes that practice. Employers was not required to deposit the net available insurance until ordered to do so by the court.

   Neither Md. Rule 2-221 nor Fed. R. Civ. P. 22 requires that the res be deposited upon institution of a complaint for interpleader. On the other hand, one of the conditions for the conferral of jurisdiction on United States District Courts under the Federal Interpleader Act is that the plaintiff have deposited the money or property in the registry of the court, or have given bond. 28 U.S.C. § 1335(a)(2). n3 Commentators on federal practice have pointed out that, as a result of this difference "it may be to the advantage of the stakeholder to bring suit under Rule 22(1) ...." 7 C. Wright, A. Miller & M. [**523]Kane, Federal Practice and Procedure § 1703, at 499 (2d [*120] ed. 1986). Because of this difference, "it is possible that the stakeholder could have the use of all or part of the disputed fund or property for a longer period of time if he proceeds under Rule 22(1) rather than the statute." Id. n4

n3 Two of the major differences between rule and statutory interpleader in the federal courts are in the areas of subject matter and in personam jurisdiction. Subject matter jurisdiction in rule interpleader cases is based on the general federal question and diversity of citizenship grants of jurisdiction. Statutory interpleader requires only a stake of $500 and diversity of citizenship between two or more of the adverse claimants. Further, personal jurisdiction in a rule interpleader case is circumscribed by the territorial limits in Fed. R. Civ. P. 4, while nationwide service of process is available in statutory interpleader. See 7 C. Wright, A. Miller & M. Kane, Federal Practice and Procedure  § 1703 (2d ed. 1986).

[***13] 

n4 "The provision for payment into the registry of the court has been included in each of the [federal] interpleader acts since 1917 ...." 3A J. Moore, Moore's Federal Practice P 22.10, at 22-91 (2d ed. 1995).

   By way of further background, we note that the type of interpleader presented here differs from strict nineteenth century interpleader in that the adverse claims do not rest on a common title. The classical model may be illustrated by the life insurer which initiates an interpleader over the death benefits payable on the death of the insured, naming as defendants the originally designated beneficiary and one designated in a change of beneficiary that the original beneficiary challenges. In the illustration, the claims are mutually exclusive, so that if the insurer pays the wrong claimant, it may be required to pay the same obligation twice.

   Justification for the type of interpleader utilized by Employers in the instant matter is explained by Hazard & Moskovitz, An Historical and Critical Analysis of interpleader, 52 Cal. L. Rev. 706 (1964). The authors state:
 
"A more[***14] complicated but modernly more important type of case is where a liability insurance carrier is confronted with claims against its insured that exceed the limits of the policy. In this type of case, the middleman does not face the risk of paying twice, for he is acquitted upon payment. There is a risk, however, that the members of the group may be treated disproportionately, for if the first to come forward is fully served, there may be nothing left for the tail-enders. It is unfair that a group similarly situated be treated dissimilarly, and especially that preference among them be shown to the hoggish. There is still more at stake in the typical case of the liability policy, for the claims in such a situation, being personal injury claims, are indeterminate in amount in advance of settlement or adjudication. Because settling one share cuts down the pie available for [*121] another, the settlement process easily breaks down into a circular interdependency. Interpleader invites supervision of settlement, and enhances the possibility that trials may be avoided to fix the shares."
 
Id. at 759 (footnotes omitted).

    This type of interpleader has been described as involving "pie-slicing" [***15]adversity. Note, Can Statutory Interpleader Be Used As A Remedy By the Tortfeasor In Mass Tort Litigation?, 90 Dick. L. Rev. 439, 445 (1985). n5 The Court of Special Appeals has recognized the use of pie-slicing interpleader by an officers and directors liability insurer that was faced with a number of suits against its insureds following the collapse of a savings and loan association. See Faulkner v. American Casualty Co., 85 Md. App. 595, 619-25, 584 A.2d 734, 746-48, cert. denied, 323 Md. 1, 590 A.2d 158 (1991).

n5 One federal court rejected the argument that pie-slicing interpleader would not lie because the claimants did not have adverse claims to each other, by observing as follows:
 
"It might, by the same reasoning, be said that 100 persons adrift in the ocean with but one small lifeboat in sight were not adverse to each other. We fear, however, that the concept of non-adversity would dwindle in direct proportion to the number of swimmers reaching the boat."
 
Commercial Union Ins. Co. v. Adams, 231 F. Supp. 860, 863 (S.D. Ind. 1964).

[***16]

   Inasmuch as pie-slicing interpleader is recognized, not to protect the insurer from double liability on the same claim, but to attempt to avoid a multiplicity of suits, the question arises whether pie-slicing interpleader may be invoked by a liability insurer in a state that does not recognize direct actions by tort claimants against the tortfeasor's liability insurer. That question was answered for the federal courts by State Farm Fire & Casualty Co. v. Tashire, 386 U.S. 523, 87 S. Ct. 1199, 18 L. Ed. 2d 270 (1967). State Farm had coverage of $20,000 per occurrence on a pickup truck that had collided in California with a Greyhound bus, resulting in the deaths of two persons and bodily injuries to thirty-five persons in addition [**524] to the operator of the truck. The insurer filed in [*122] Oregon under the federal interpleader statute. The United States Court of Appeals vacated an injunction issued by the trial court because Oregon did not permit direct actions against insurance companies until judgments were obtained against the insureds. Id. at 528, 87 S. Ct. at 1202. The Supreme Court reversed, holding that, under the language of the statute in effect since 1948, interpleader would[***17] lie "where adverse claimants 'may claim' benefits as well as where they 'are claiming' them." Id. at 532, 87 S. Ct. at 1204.

   Maryland, like Oregon, is not a direct action state. Washington Metropolitan Area Transit Auth. v. Queen, 324 Md. 326, 331, 597 A.2d 423, 425 (1991). Indeed, since Chapter 204 of the Acts of 1924, the Maryland Insurance Code has provided that
 
"if an execution upon any final judgment against the assured is returned unsatisfied ... in an action brought by the injured ... then an action may be maintained by the injured ... against the insurer under the terms of the policy for the amount of any judgment recovered in such action, not exceeding the amount of the policy ...."
 
Md. Code (1957, 1994 Repl. Vol.), Art. 48A, § 481. The statute has been interpreted to permit a direct action "once there is a verdict or judgment in the tort action." Queen, 324 Md. at 332, 597 A.2d at 426; see Allstate Ins. Co. v. Atwood, 319 Md. 247, 257, 572 A.2d 154, 159 (1990). See also Bass v. Standard Accident Ins. Co., 70 F.2d 86, 87-88 (4th Cir. 1934).

   Further, Md. Rule 2-221, like 28 U.S.C. § 1335 (but unlike the text of Fed. R. Civ. P. 22(1)), [***18] permits interpleader against "adverse claimants who claim or may claim to be entitled to property." This inclusion of the "may claim" language in Rule 2-221 produces the result approved in State Farm v. Tashire, supra. Interpleader in Maryland includes pie-slicing adversity between claimants for personal injury damages.

   The foregoing analysis highlights the inconsistency between petitioners' claim for prejudgment interest and the Maryland law governing the award of prejudgment interest. [*123] A claim against the tortfeasor's insurer would not even be recognized prior to judgment and outside of interpleader, because of the direct action bar. In addition, the claim of one claimant may be contingent as to liability, if another claimant, seeking an increase in that claimant's share of the pie, demonstrates that the stakeholder's insured is not liable to the first claimant. Most important, where, as here, the adverse claims are based on personal injuries, the claims are unliquidated. Maryland law does not recognize prejudgment interest on tort claims for personal injuries, and it is not assessed at the time the claims are liquidated by judgment.

   In Taylor v. Wahby, 271 Md. 101, 314[***19] A.2d 100 (1974), we recognized "that the usual tort rule in regard to unliquidated claims for damages [is] that interest runs from the time of the verdict." Id. at 113, 314 A.2d at 106. Taylor was an action by a real estate broker who successfully claimed tortious interference with his listing contract, and the tort damages included the amount of lost commission on which the trial court allowed prejudgment interest. Because the "claim was unliquidated and not reasonably ascertainable until the verdict," this Court applied the usual tort rule and reversed the award of prejudgment interest. Id. See also I.W. Berman Properties v. Porter Bros., 276 Md. 1, 16, 344 A.2d 65, 74-75 (1975) (recognizing general tort rule); 4 Restatement (Second) of Torts § 913(2) (1979) ("Interest is not allowed upon an amount found due for bodily harm, for emotional distress or for injury to reputation, but the time that has elapsed between the harm and the trial can be considered in determining the amount of damages."); 1 D. Dobbs, Law of Remedies § 3.6(1), at 336 (2d ed. 1993) ("The general rule ... apart from statute, [is that] prejudgment interest is not recoverable on claims that [***20]are neither liquidated as a dollar sum nor ascertainable by fixed standards.").

   Pie-slicing interpleader, involving adverse personal injury claimants, merely anticipates judgments in favor of those claimants against the tortfeasor, and anticipates that claims on those judgments will then be asserted against the stakeholder. That is not a basis for permitting the recovery in interpleader [*124]of [**525] a form of damages, i.e., prejudgment interest, that the claimants could not recover at the conclusion of the underlying tort claims.

   Further, absent a right, absolute or discretionary, to recover prejudgment interest on the underlying tort claim, we are unable to discern any basis for the obligation, claimed by the petitioners, of the stakeholder to pay prejudgment interest. If the adverse claimants to the insurance fund were unable to get service on Acton or Powell, they would not even be able to reach the insurance fund by an attachment on original process. Belcher v. Government Employees Ins. Co., 282 Md. 718, 387 A.2d 770 (1978). By initiating an interpleader over the fund, Employers acknowledged that it would pay the policy limits, and that it would deposit the fund when it was required[***21] to do so under Md. Rule 2-221, i.e., when the court ordered the deposit to be made. Requiring the stakeholder to pay interest on the policy limits for a period prior to the court ordered deposit may, depending on the terms of the policy, require the insurer to pay more than it has promised to pay on behalf of the insured.

   In Nationwide Mut. Ins. Co. v. Mabe, 342 N.C. 482, 467 S.E.2d 34 (1996), the claimants in a pie-slicing interpleader sought prejudgment interest, but the policy defined damages to include prejudgment interest awarded against the insured. 467 S.E.2d at 38-39. The effect was that prejudgment interest was subject to the cap of the policy limits. Id. at 40. Alternatively, the court considered prejudgment interest to be, independently of the contract, a part of tort damages and subject to the policy limits. Id.

   In the policy that Employers issued to Beltran and its subsidiaries the relevant promise of Employers is as follows:
 
"In addition to our limit of liability, we will pay for the insured:

   ....

   "5. All interest accruing after the entry of the judgment in a suit we defend. Our duty to pay interest ends when we pay or tender our limit of liability."
[***22]
 
[*125] In other words, Employers promises to pay post-judgment interest in excess of limits, but only up to the date when the policy limits are paid or tendered. The interest claim in the instant matter seeks more than the policy provides.

   If the adverse claimants in this interpleader action had pursued their claims against the tortfeasors to judgment and then brought an action against Employers for the amount of the judgment recovered in the tort action, the recovery against Employers could "not exceed[] the amount of the policy." Art. 48, § 481. Consequently, it would also be inconsistent with § 481 for us to require prejudgment interest here.

   We glean from petitioners' arguments the contention that the entire unpaid balance of the policy limits should be considered as a fund in gross, that liability on the insurer's part to pay the fund is admitted by the filing of the interpleader, and that the fund in gross is a liquidated amount, so that interest in gross for the period from the institution of the interpleader to the making of the deposit should be included in the deposit, to be thereafter distributed in accordance with the shares determined in phase two of the interpleader[***23] proceeding. n6 This argument by petitioners is inconsistent with the analysis set forth above. It is also inconsistent with Md. Rule 2-221. Requiring interest from the date of filing is the same as treating the owners in gross as the owners of the fund from the time the interpleader is instituted. Maryland Rule 2-221 allows deferral of the deposit until the court has determined that the case is an appropriate one for interpleader and directs that the action proceed to phase two. There is no assurance that, simply because the stakeholder files an interpleader, the adverse claimants and the court will agree that the procedure is appropriate. In addition, petitioners' argument is contrary to one of the few liability insurance, pie-slicing [*126] interpleader, bodily injury claimants' cases that considers prejudgment interest. In Canal Ins. Co. v. Pizer, 183 Ariz. 162, 901 [**526] P.2d 1192 (1995), the court rejected the "in gross" analysis because a court could find that the individual claims, once liquidated, did not exhaust the policy limits.

n6 Of course, once an interpleaded fund has been deposited, "the usual and general rule is that any interest on [it] follows the principal and is to be allocated to those who are ultimately to be the owners of that principal." Webb's Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 162, 101 S. Ct. 446, 451, 66 L. Ed. 2d 358, 365 (1980).

[***24]

   The only decision disclosed by our research that directly supports petitioners' position is First of Georgia Ins. Co. v. Riggle, 540 So. 2d 766 (Ala. App. 1989). That court reasoned that, "once the company pledged to deposit the stake with the court and disavowed any rights in the stake, the interest earned thereon became the property of the claimants." Id. at 768. For all the reasons heretofore set forth, we are not persuaded by that analysis.

   Nor are we persuaded by the three federal cases cited to us by petitioners. Two of them do not involve liability insurers or pie-slicing adversity. Amoco Transport Co. v. Dietze, Inc., 582 F. Supp. 804 (S.D.N.Y. 1984), involved the amount of $470,728.84 in freight charges that the stakeholder had incurred in one month. Three groups of claimants were joined. One group did not appear, the second was a broker whose commission was deducted from the fund, and the balance was awarded to the third claimant, with prejudgment interest on the principal amount of the bond that the stakeholder had filed under 28 U.S.C. § 1335. 582 F. Supp. at 805. Gelfgren v. Republic Nat'l Life Ins. Co., 680 F.2d 79 (9th Cir. 1982), involved the sum[***25] of $30,000 in death benefits under a union welfare fund in a Rule 22(1), federal question, interpleader. Prejudgment interest was awarded. Neither of these cases involved underlying tort claims for personal injuries. We do not have before us the question of whether, under Maryland interpleader practice, a liquidated claim, that could support prejudgment interest when asserted independently by the claimant, continues to bear that characteristic when the claim is joined in an interpleader proceeding. 

   The third case relied upon by petitioners is Unigard Mut. Ins. Co. v. Abbott, 732 F.2d 1414 (9th Cir. 1984). Primary and excess liability insurers deposited the limits of their comprehensive [*127] general liability policies with the court when they brought an interpleader action under the federal statute. Id. at 1416. Because of the facts surrounding the accident, the claimants successfully contended that the automobile liability policies issued by the same insurers to the same insured also covered the occurrence so that there was available to the claimants double the amount of insurance deposited. Id. at 1418. There was also evidence that, at the time of the institution of the interpleader, [***26] the insurers were aware of the possibility of additional coverage under the automobile policy. Id. When the claimants raised the possibility of additional coverage under the automobile policy, the court ordered the insurers to post a bond in the amount of the automobile policy limits. Id. at 1416. After trial the court also awarded interest in an amount equal to the amount earned in interest on the deposit of the comprehensive liability policy limits. Id. at 1418. The court reasoned that the insurers were obligated by 28 U.S.C. § 1335 to post a bond or deposit when the interpleader was instituted, id., and the relief granted seems to have been a remedy for that violation. In any event, under Md. Rule 2-221 there is no similar requirement for deposit or bond when the interpleader is filed.

   Accordingly, petitioners' claim for prejudgment interest cannot be founded on the Maryland law of interpleader.

   II

   The General Assembly has responded to the problem of delay in the payment of automobile liability claims by CJ § 11-301 under which the court may assess prejudgment interest for unnecessary delay. n7 [**527] Petitioners assert that their [*128] claims were unnecessarily delayed, [***27] but the circuit court concluded that the petitioners' contention could not withstand summary judgment, and the Court of Special Appeals agreed. We agree with the lower courts.

n7 CJ § 11-301 reads:

   "(a) Defendant causing unnecessary delay. -- In an action for bodily injury arising from the operation of a motor vehicle in which a money judgment is entered in favor of the plaintiff, the court may assess interest against the defendant at the rate of not more than 10 percent per annum on the amount of the judgment from a time not earlier than the time the action was filed if it finds that the defendant caused unnecessary delay in having the action ready or set for trial.

   "(b) Delay caused by defendant's insurer or counsel. -- For the purposes of this section, a delay caused by the defendant's insurer or counsel is deemed an unnecessary delay caused by the defendant."

   Petitioners' contention faces the insuperable hurdle that Acton's bankruptcy stayed the interpleader action. The Federal Bankruptcy[***28] Code provides that the filing of a bankruptcy petition "operates as a stay, applicable to all entities, of -- (3) any act to obtain possession of property of the estate or of property from the estate or to exercise control over property of the estate[.]" 11 U.S.C. § 362(a)(3). Property of the bankruptcy estate includes "all legal or equitable interests of the debtor in property as of the commencement of the case." Id. § 541(a)(1). Both the First Circuit, where Acton's bankruptcy case was filed, and the Fourth Circuit, hold that a liability insurance policy of a debtor/insured and the policy proceeds are property of the debtor/insured's bankruptcy estate. Tringali v. Hathaway Mach. Co., 796 F.2d 553, 560 (1st Cir. 1986); A.H. Robins Co. v. Piccinin, 788 F.2d 994, 1001 (4th Cir.), cert. denied, 479 U.S. 876, 107 S. Ct. 251, 93 L. Ed. 2d 177 (1986). Accordingly, because Acton's bankruptcy petition predated Employers' filing of the interpleader action, Employers could not have legally paid the funds into the court, even if it had elected to do so, without an order from the bankruptcy court in Massachusetts lifting the automatic stay.

   In their answer to the interpleader[***29] complaint petitioners asked that Employers be ordered either to pay the funds into the registry of the court or to place them with a trustee for investment in an interest bearing account(s). The automatic stay removed the court's power to order Employers to do so. 11 U.S.C. § 362(a)(3). Petitioners' only recourse was to seek a lift of the stay, see Tringali, 796 F.2d at 563, which they did some six months after the interpleader was instituted. Petitioners [*129] bore the burden of proving cause for lifting the stay or that Acton did not have equity in the proceeds and that the proceeds were not necessary to Acton's effective reorganization. 11 U.S.C. § 362(d).

   After Acton's trustee opposed lifting of the stay, the Lawhornes agreed to postpone a hearing on their motion to lift the stay because settlement negotiations were in progress. Although those negotiations dragged on for more than one and one-half years, the attorney for the Lawhornes stated in a deposition that he was unaware of any action taken by Employers that "would constitute less than best faith efforts to effectuate the contemplated settlement."

   There was insufficient evidence of unreasonable delay on the part of the [***30]stakeholder.

   III

   The remaining contention is that Employers was unjustly enriched by the amount of interest earned on the net policy proceeds in the period between commencement of the interpleader and the deposit of the funds. Using the label, "constructive trust," petitioners seek a restitutionary remedy.

   The argument rests on a theory that there is a conversion, in equity, of the ownership of the fund in gross immediately upon the filing of the interpleader action. For the reasons stated in Part I, we have held that that theory is not part of the Maryland law of interpleader. Consequently, there has been no unjust enrichment.
 
JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED. COSTS TO BE PAID BY THE PETITIONERS.

                       
SCOTLAND EUGENE WILLIAMS v. STATE OF MARYLAND 
No. 89, September Term, 1995
 
COURT OF APPEALS OF MARYLAND
 
342 Md. 724; 679 A.2d 1106; 1996 Md. LEXIS 75

 July  30, 1996, Filed

   PRIOR HISTORY: [***1] No. 89. Review of Death Penalty (Circuit Court for  Anne Arundel  County). Eugene Lerner, JUDGE.

DISPOSITION: JUDGMENTS REVERSED AND CASE REMANDED TO THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY FOR NEW TRIAL. COSTS TO BE PAID BY ANNE ARUNDEL COUNTY.

CORE TERMS:  contamination, testing, allele, crow, murder, defense counsel, mace, cross-examination, admissible, laboratory, seized, breaking, juvenile, gene, victim impact statement, victim impact, bag, credibility, probation, probative value, admissibility, arrest, death penalty, handcuffs, burglary, impeach, card, juvenile delinquency, crime scene, proficiency

COUNSEL:  
ARGUED BY Michael R. Braudes, Assistant Public Defender, (Stephen E. Harris, Public Defender; Sherrie B. Glasser, Margaret L. Lanier, Michele M. Nethercott, Assistant Public Defenders, on brief) of Baltimore, MD, FOR APPELLANT.
 
ARGUED BY Ann N. Bosse, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General; Kathryn Grill Graeff, Assistant Attorney General, on brief) of Baltimore, MD, FOR APPELLEE.

JUDGES: ARGUED BEFORE Murphy, C.J.; Eldridge, Rodowsky, Chasanow, Karwacki, Bell, and Raker, JJ. Opinion by Chasanow, J. Concurring opinion by Rodowsky, J. in which Bell, J., concurs in part.

OPINIONBY: CHASANOW

OPINION: [*731] [**1110] This direct appeal in a capital murder case raises several issues concerning the trial of and death sentence imposed upon the Appellant, Scotland Eugene Williams. Williams was convicted by a jury in the Circuit Court for Anne Arundel County of two counts of first degree murder, multiple counts of robbery with a deadly weapon, theft, [***2] burglary, and use of a handgun in the commission of a crime of violence. After a capital sentencing hearing conducted before Judge Eugene M. Lerner, Williams received the death penalty. This appeal is before us pursuant to Maryland Code (1957, 1992 Repl. Vol., 1995 Supp.), Article 27, § 414. For reasons which we shall explain, we must reverse Williams's convictions and sentence and remand the case for a new trial.

   I. FACTS

   The victims in this case, Jose Trias and his wife, Julie Gilbert, were successful attorneys who owned a weekend home in Annapolis, Maryland. On Monday, May 16, 1994, when Trias and Gilbert failed to arrive at work, their secretaries [*732] became concerned and tried to locate them. Gilbert's secretary contacted Ricky Cole, a carpenter who frequently worked on the couple's Annapolis home and had a key to the residence, and asked him to go to the house to check on the couple. Upon arriving at the house, Cole noticed that Gilbert's Acura Legend automobile was missing, and he found a note taped to the door that said "ON VACATION!  BE BACK 20 MAY." Cole went into the bedroom, where he found Gilbert and Trias lying prone on their bed. Each had been fatally shot in the [***3]back of the head at close range. Both victims had been dead approximately 24 to 48 hours prior to discovery.

   Among various items missing from the residence were automatic teller machine (ATM) cards belonging to Trias and Gilbert. During the period of May 15 to 17, 1994, several withdrawals and attempted withdrawals were made with the bank cards at various ATM locations. Security cameras at the ATM machines photographed Williams making some of these transactions, and photographed Williams in a car that appeared similar to [**1111] Gilbert's Acura Legend. Two witnesses also testified that they saw Williams ahead of them in line at ATM machines on May 17, 1994.

   Police arrested Williams on May 19, 1994, as he was leaving his mother's home in Arnold, Maryland. When arrested, Williams was carrying $2,160.85 in cash, most of it in $20 bills. He also had in his possession a brown bag containing, among other things, a canister of mace, a crow bar, a blue bandanna, and a gold watch. The watch was later identified as belonging to Gilbert. After the arrest, police searched the home of Williams's mother, where Williams had been living for about a month. During the search, police seized three small[***4] flashlights, two pair of handcuffs and a pair of binoculars.

   Various items of clothing seized from the Williams residence, as well as the clothing Williams was wearing when arrested, tested positive for blood, although the source of the blood could not be determined. Additionally, fibers from a pair of brown cotton gloves found in Williams's bedroom were [*733] consistent with fibers found on the tape securing the "on vacation" sign found at the murder scene. A handwriting expert testified that there were similarities between the handwriting on the note and Williams handwriting, but he could not reach an opinion on whether Williams wrote the note.

   At the Gilbert/Trias home, police found a drinking glass on the kitchen counter. Epithelial cells from a mucosal membrane, such as that on the inside of a person's mouth, were found on the glass. The cells were submitted to Cellmark Diagnostics, Inc. of Germantown, Maryland, for deoxyribonucleic acid (DNA) testing. At trial, a senior molecular biologist for Cellmark testified that test results obtained using a method called "polymerase chain reaction" showed that the types of DNA obtained from the epithelial cells on the glass were the same [***5]types as those found in the blood sample obtained from Williams. The biologist also testified that Gilbert and Trias were excluded by the tests as sources of the DNA.
 
   Hairs discovered in the Gilbert/Trias home were found to be consistent with hair samples taken from Williams, but the State's expert testified that the hair comparison could not provide positive identification. Additionally, a shoe print discovered in the kitchen was consistent with a photocopy of the soles of shoes stipulated to have been worn by Williams several months earlier. n1

n1 The photocopy of the soles of the shoes previously worn by Williams apparently was obtained by police as part of an unrelated investigation several months before the murders.

   At trial, a critical State's witness was Carl Spoone, who became acquainted with Williams when the two were incarcerated together at the Anne Arundel County Detention Center following Williams's arrest. Spoone testified that Williams made statements at the jail incriminating himself in the[***6] murders of Gilbert and Trias. Spoone testified that he and another inmate were discussing God, when Williams became defensive and told them "'how were them two ... them two lawyers prepared for God when I took the gun ... to the back of their head and blew their brains out?'" Spoone [*734] further stated that later on in the conversation, Williams said that "the only thing that he had done it for was the red Legend...." According to Spoone, Williams also said that "the only thing that they could get on him was stealing the car and using the ATM card."

   Additional facts relevant to the disposition of this appeal will be provided as necessary throughout this opinion.

   II. SUFFICIENCY OF EVIDENCE TO SUSTAIN BURGLARY CONVICTION

   First, we consider Williams's contention that the evidence presented at trial was insufficient to sustain his conviction for burglary. The test for evidentiary sufficiency in a criminal case is "'"whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt."'" Wiggins v. State, 324 Md. 551, 567, 597 A.2d 1359, 1366 (1991) (citations[***7] omitted), cert. [**1112] denied, 503 U.S. 1007, 112 S. Ct. 1765, 118 L. Ed. 2d 427 (1992).

   The essential elements of burglary are the breaking and entering of the dwelling of another at night with the intent to commit a felony. E.g.  Oken v. State, 327 Md. 628, 662, 612 A.2d 258, 274 (1992), cert. denied, 507 U.S. 931, 113 S. Ct. 1312, 122 L. Ed. 2d 700 (1993). The breaking element of burglary may be satisfied by evidence showing either an actual breaking, or a breaking accomplished constructively via artifice, fraud, conspiracy or threats. Id. Williams argues that there was no evidence of a breaking, either actual or constructive. Hence, Williams asserts that the trial court erred in not granting his motion for judgment of acquittal on the burglary charge. We agree.

   In Oken, this Court reversed a burglary conviction because we found insufficient evidence of a breaking. 327 Md. at 663, 612 A.2d at 275. In that case, we noted that the only evidence of an actual or constructive breaking was testimony from several witnesses who stated that on prior occasions the [*735]defendant had attempted to gain entry to homes by fraudulently representing that he needed to use the telephone, and[***8] on one occasion he attempted to stop a woman in her car by posing as a police officer. Based on this evidence, the State argued that the jury could have reasonably inferred that the defendant used a similar tactic to gain entry to the victim's home, where he committed murder. We reversed Oken's burglary conviction, explaining: 

   "While it is true that ... a conviction may rest on circumstantial evidence alone, we have also explained: 
 
'to ensure that the trier of fact bases a finding of guilt on the appropriate degree of certainty, ... a conviction [based] upon circumstantial evidence alone is not to be sustained unless the circumstances, taken together, are inconsistent with any reasonable hypothesis of innocence.'

   Here, aside from the evidence of ruses employed by Oken in connection with the entry or attempted entry of other residences in the neighborhood of the victim's apartment, the record is completely devoid of any evidence showing a breaking, either actual or constructive, of [the victim's] apartment. Consequently, we are not convinced that a jury could find such circumstantial evidence inconsistent with any reasonable hypothesis that the victim's[***9] apartment was entered by Oken without a constructive breaking. Therefore, we hold that Oken's conviction for burglary must be reversed." (Citations omitted). 

Oken, 327 Md. at 662-63, 612 A.2d at 275.

   In the instant case, the State concedes that there was no evidence of a forced entry into the Gilbert/Trias home. As evidence of a breaking, the State points to testimony indicating that Trias was security conscious and that the home was equipped with a security system. The State contends that the "jury could infer that this type of person would not leave his door open for a stranger to walk in off the street," and that entry into the home "was made by Williams's opening a door, threatening the victims, or obtaining entry by deceit." We hold that any such inference, without more, is insufficient to prove a breaking beyond a reasonable doubt. We agree with [*736] Williams that the evidence adduced at his trial to prove a breaking was even weaker than the evidence we found to be insufficient in Oken. Hence, we reverse Williams's burglary conviction. Because our reversal is based on a finding of insufficient evidence, Williams cannot be retried for burglary. See Oken, 327[***10] Md. at 663, 612 A.2d at 275.

   III. ADMISSION OF "BURGLARS' TOOLS" INTO EVIDENCE

   Next, we consider Williams's contention that the trial judge erred by admitting into evidence, over objection, several items taken from a bag that was in Williams's possession at the time of his arrest and from a briefcase seized from his residence. The items, some of which were characterized as "burglars' tools" by the State during closing arguments, included handcuffs, a pry bar, and a can of mace. Williams contends that these items lacked probative value because there was no evidence linking the tools to the murders or the other crimes with which he was charged. [**1113] Further, he asserts that the admission of the pry bar, handcuffs, and mace was highly prejudicial because the items gave the jury a basis from which to infer that Williams had a propensity to commit crimes, and that he may have used the items to commit unrelated crimes.

   In order for evidence to be admissible in a criminal case, that evidence must be relevant. n2 State v. Joynes, 314 Md. 113, 119, 549 A.2d 380, 383 (1988); Dorsey v. State, 276 Md. 638, 643, 350 A.2d 665, 669 (1976). Evidence is relevant when it tends to establish [***11] or disprove a fact at issue in the case.  Joynes, 314 Md. at 119, 549 A.2d at 383. As we explained in Joynes: 

   "There are two important components to relevant evidence: materiality and probative value. Materiality looks [*737] to the relation between the propositions for which the evidence is offered and the issues in the case. The second aspect of relevance is probative value, which is the tendency of evidence to establish the proposition that it is offered to prove. *** Evidence which is thus not probative of the proposition at which it is directed is deemed 'irrelevant.' The trial judge is usually in the best position to evaluate the probative value of the proffered evidence. Where evidence is utterly lacking in probative value, it may be condemned as 'remote' or 'speculative.'" (Citations omitted).

314 Md. at 119-20, 549 A.2d at 383. A trial judge's determination on relevance will not be reversed absent an abuse of discretion.  White v. State, 324 Md. 626, 637, 598 A.2d 187, 192 (1991). 

n2 The general principles governing relevancy and the admissibility of evidence are now contained in Maryland Rules 5-401, 5-402, 5-403. The offenses for which Williams was charged occurred prior to July 1, 1994, the day the Maryland Rules of Evidence took effect. Although the rules do not apply in this case, we note that our holding would be the same under the rules in any event.

[***12]

   A finding by the trial judge that a particular piece of evidence is relevant, however, does not mean that evidence is automatically admissible. Even relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.  Hunt v. State, 321 Md. 387, 425, 583 A.2d 218, 236 (1990), cert. denied, 502 U.S. 835, 112 S. Ct. 117, 116 L. Ed. 2d 86 (1991); 5 LYNN MCLAIN, MARYLAND EVIDENCE § 403.1, at 297 (1987). As with the trial court's relevancy determination, a decision to admit relevant evidence over an objection that the evidence is unfairly prejudicial will not be reversed absent an abuse of discretion.  Hunt, 321 Md. at 425, 583 A.2d at 236.

   Applying these principals to the instant case, we conclude that the judge abused his discretion in admitting the crow bar and can of mace found in Williams's possession at the time of his arrest. The State contends that the crow bar and mace were offered to prove "that Williams had the ability to burglarize the victims' home and subdue its occupants." According to the State, the crow bar and mace were relevant to connect Williams to the burglary of the Gilbert/Trias home because the "items[***13] were found in his possession soon after the crime was committed," and "the jury could infer that Williams was attempting to flee, with evidence of the crimes, after [*738] seeing" news broadcasts indicating he was a suspect. We find these connections to the charged crimes to be highly remote and speculative.

   There is simply no evidence in the record establishing any connection between the crow bar and mace and the crimes with which Williams was charged. As we discussed, in section II, supra, there was insufficient evidence adduced at trial to support a finding that Williams broke into the house. There was no indication that the crow bar was used to gain entry into the house, and the State conceded in its brief and during oral argument that there were no signs of forced entry into the home. There is no indication that Williams even had the crow bar and/or mace in his possession at the time he allegedly committed the murders and other crimes. Contrary to the State's contention that the items were seized "soon after" the crimes, the crow bar and mace were not taken from Williams until the day of his arrest, approximately four days after the [**1114]murder and robbery of Gilbert and Trias. Since[***14] there is no evidence establishing a connection between the crow bar and mace and the crimes, the probative value of the items was virtually nil.

   Furthermore, the danger of unfair prejudice in admitting the crow bar and mace substantially outweighed any minimal probative value. The admission of the items gave the jury a basis from which to conclude that Williams had a propensity to commit crimes, especially burglary. This danger was acute given the State's Attorney's reference to the items as "burglars' tools" during closing arguments. This Court has made clear that evidence tending to link a defendant to uncharged, unrelated criminal conduct is generally inadmissible. n3 See, e.g, Ross v. State, 276 Md. 664, 669, 350 A.2d 680, 684 (1976). The purpose of this rule is to prevent the jury from convicting a defendant on the basis that the defendant is a person of general criminal character, rather than a finding that the [*739] defendant committed the specific crimes charged. See id.; 5 MARYLAND EVIDENCE § 404.5, at 352. See also Ayers v. State, 335 Md. 602, 631 n.8, 645 A.2d 22, 36 n.8 (1994) (other crimes evidence is excluded because "it is generally too prejudicial"), cert. [***15]  denied, 513 U.S. 1130, 115 S. Ct. 942, 130 L. Ed. 2d 886 (1995). 

n3 There are several important exceptions to this rule, see Ross v. State, 276 Md. 664, 669-70, 350 A.2d 680, 684. (1976), but none are applicable in the instant case. See also Md. Rule 5-404(b).

   Since there was no evidence linking the crow bar or mace to the crimes with which Williams was charged, there is a strong probability that the jury may have inferred from the evidence that Williams was a person of general criminal character. The danger of this kind of unfair prejudice substantially outweighed any minimal probative value of the crow bar and the mace. See State v. Acklin, 171 Conn. 105, 368 A.2d 212, 216-17 (Conn. 1976) (holding that admission of masks and ropes seized from defendants at time of arrest was error because there was no evidence linking the articles to the robbery with which the defendants were charged). We hold that the trial judge erred in admitting the crow bar and mace.

   Williams also objects to the admission[***16] of the two pair of handcuffs seized from a briefcase found during a search of his room. Williams contends that "only speculation" connected the handcuffs to the murders. We disagree. The evidence established that the bodies of Gilbert and Trias were found face down on their bed with their hands behind their backs in an unnatural position. Hence, it would be logical for the jury to infer that the victims' hands were bound behind their backs before they were shot. Further, there was no evidence of ligature marks on the victims' hands or wrists which might have indicated that rope was used. Thus, it might also be reasonable to infer that handcuffs were used in the murders. Therefore, the probative value of the handcuffs outweighed any prejudicial effect. We agree with the State that the trial judge did not abuse his discretion in admitting the handcuffs.

   IV. IMPEACHMENT OF DEFENSE WITNESS WITH JUVENILE DELINQUENCY ADJUDICATIONS

   The next issue raised by Williams concerns the ruling of the trial judge allowing the State to impeach a key defense [*740] witness using several of the witness's juvenile delinquency adjudications. The defense witness was another fellow inmate of Williams who testified[***17] that a vital State's witness, inmate Carl Spoone, was lying when he testified that Williams had confessed to the murders during a jailhouse conversation about God. The second inmate, Mark Wheelton, stated that he remembered being present during the conversation, and that Williams had not joined in the discussion. Wheelton further testified that he knew Williams for approximately three months while the two were incarcerated together, and that Williams never discussed the charges against him.

   Before Wheelton took the stand, defense counsel asked the court to rule on the question of whether the State would be allowed to impeach Wheelton with his recent murder conviction and with several juvenile delinquency adjudications. After discussion with lawyers for both sides, the court ruled that the State could not use Wheelton's murder [**1115] conviction as impeachment evidence because the deadline for Wheelton to file an appeal from the conviction had not expired. n4 As to Wheelton's juvenile delinquency adjudications, the court ruled that under the holding of Davis v. Alaska, 415 U.S. 308, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974), the State could use the juvenile records to impeach Wheelton. As[***18] a result, the following cross-examination occurred: 
 
"[STATE'S ATTORNEY]: Prior to ... being in the detention center you had in 1991 been found delinquent on three counts of breaking and entry, hadn't you?
 
[WHEELTON]: Yes.
 
[DEFENSE COUNSEL]: Your Honor, may I have a continuing objection?
 
[*741] THE COURT: You have a continuing objection.
  
[DEFENSE COUNSEL]: Thank you, Your Honor.
 
[STATE'S ATTORNEY]: And also in 1991 you were found to have been delinquent in regard to larceny and breaking and entry?
 
[WHEELTON]: Yes.
 
[STATE'S ATTORNEY]: And in 1992 you were found delinquent regarding breaking and entry and theft?
 
[WHEELTON]: Yes.
 
[STATE'S ATTORNEY]: And again, in 1992 you were found, uh, delinquent regarding daytime housebreaking?
 
[WHEELTON]: Yes.

n4 The court did allow the State to impeach Wheelton with the fact that he had confessed to the murder, apparently on the theory that the killing was a prior bad act within the meaning of Md. Rule 5-608(b). Williams did not object to the impeachment of Wheelton with his confession to murder. Hence, we need not decide whether Wheelton's statement was a prior bad act that is "probative of a character trait of untruthfulness." See Maryland Rule 5-608(b). We in no way express approval, however, for the ruling of the trial judge.

[***19]

   Williams contends that the trial judge erred in allowing the State to impeach Wheelton with the juvenile adjudications. We agree. A juvenile delinquency adjudication is not a criminal conviction. Md. Code (1974, 1995 Repl. Vol.), Courts & Judicial Proceedings Art., § 3-824(a)(1). Hence, the rule is clear in Maryland that it is impermissible for the State to attack the credibility of a defense witness by directly asking him about his past record of juvenile offenses. n5 See Westfall v. State, 243 Md. 413, 423, 221 A.2d 646, 652 (1966). In Lancaster v. State, 86 Md. App. 74, 585 A.2d 274 (1991), aff'd on other grounds, 332 Md. 385, 631 A.2d 453 (1993), the Court of Special Appeals stated: 

   "The law is perfectly clear that it is 'impermissible to attack the credibility of a witness by asking him about his past record of juvenile offenses, directly, or indirectly.' Indeed, any inquiry, 'whether by record or by cross-examination, [*742] of determinations of prior juvenile delinquency is impermissible in any adjudicatory hearing.'" (Citations omitted).

86 Md. App. at 86, 585 A.2d at 280. This rule is designed to protect the confidentiality of juvenile proceedings. [***20] See Md. Code (1974, 1995 Repl. Vol.), Courts & Judicial Proceedings Art., §§ 3-824(b) and (c). See also 1 MCCORMICK ON EVIDENCE § 42, at 147 (John W. Strong ed., 4th ed. 1992) ("In statutes relating to proceedings in juvenile courts it is frequently provided that an adjudication of delinquency shall not be used in evidence against the child in any other court and shall not be deemed a 'conviction.' These statutes are usually construed as precluding the finding from being used as a conviction to impeach credibility."). 

n5 We point out that our holding would be the same under Maryland Rule 5-609, which does not provide for impeachment of witnesses using juvenile adjudications. See LYNN MCLAIN, MARYLAND RULES OF EVIDENCE § 2.609.3(5), at 155 (1994)("The federal rule provides for the admissibility of juvenile adjudications ... in certain circumstances. The Maryland Rule does not."). See also Committee Note to Md. Rule 5-609 (noting that evidence of juvenile adjudications is restricted, but that a defendant may have a right to impeach a State's witness under the Confrontation Clause pursuant to Davis v. Alaska, 415 U.S. 308, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974)).

[***21]

   The trial judge's reliance upon Davis, supra, was plainly misplaced. Davis involved a defendant's constitutional right under the Sixth Amendment to confront a State's witness with his prior juvenile record to show bias on the part of the witness.  Davis, 415 U.S. at 318-19, [**1116] 94 S. Ct. at 1111-12, 39 L. Ed. 2d at 355. Davis is not authority for allowing the State to violate the confidentiality of juvenile records through its cross-examination of a defense witness. Davis was based on a defendant's right to effective cross-examination under the Confrontation Clause of the Sixth Amendment to the federal Constitution. The State has no constitutional rights under the Sixth Amendment. Hence, Davis is inapposite.

   Furthermore, even if we were to interpret Davis as applying to both State and defense witnesses, it would still be inapplicable in the instant case. Davis involved particular narrow factual circumstances in which the defendant was attempting to demonstrate that a State's witness's status as a juvenile offender on probation may have biased his testimony against the defendant. Under such circumstances, the Supreme Court found that the[***22] State's interest in protecting the anonymity of juvenile offenders was outweighed by a defendant's right to effective cross-examination directed at possible bias of the witness related to the witness's status as a juvenile delinquent.  Davis, 415 U.S. at 319-20, 94 S. Ct. at 1111-12, 39 [*743] L. Ed. 2d at 355-56. Davis does not stand for the proposition that a witness's general credibility may be impeached with juvenile adjudications. See Davis, 415 U.S. at 321, 94 S. Ct. at 1112-13, 39 L. Ed. 2d at 356 (Stewart, J., concurring).

   In the instant case, there was no allegation that Wheelton may have been biased in favor of Williams and against the State, or any indication that Wheelton's juvenile delinquency adjudications may have somehow motivated his testimony. In fact, the record makes clear that the trial judge's ruling was based on his belief that the juvenile adjudications were relevant to Wheelton's credibility, not bias: 
  
"[DEFENSE COUNSEL]: Your Honor, may I -- may I just say that -- that this is really not an issue of bias, it's an issue of credibility. ***
 
THE COURT: Well, isn't bias credibility?
 
[DEFENSE COUNSEL]: No, I think they're very[***23] different. *** Credibility is, one, the ability to tell the truth. Bias is having an interest in the outcome.

   They can certainly question him on whether or not he had an interest in the outcome....
 
THE COURT: Well, but the problem is -- the problem comes down, here's a man that has been convicted of -- of things that would tend to show he's not -- he wouldn't tell the truth. It seems to me that's absolutely pertinent.
 
[DEFENSE COUNSEL]: Again, I would call the court's attention that these are not convictions.
 
THE COURT: Oh, I understand it clearly says that, it clearly says that. *** But I do think it tends to show his credibility. And I'm -- I'm inclined to allow him to ask about that."

The cross-examination of Wheelton was not directed at possible bias, but rather his general credibility. Hence, Davis is inapposite. See Committee Note to Md. Rule 5-609 (noting that evidence of juvenile adjudications is restricted, but that they may be used by a defendant to show bias pursuant to Davis). We agree with Williams that the trial judge erred in allowing the State to impeach Wheelton's general credibility with the juvenile delinquency adjudications. [***24]

   [*744] V. OBJECTIONS RELATED TO DNA EVIDENCE
 
A. Restriction of cross-examination of State's expert witness

   We next consider Williams's contention that the trial judge improperly restricted his cross-examination of an expert witness who testified for the State regarding the DNA testing that linked Williams to the crime scene. The DNA evidence, produced by Cellmark Diagnostics, Inc. of Germantown, Maryland, consisted of test results comparing the DNA from a sample of Williams's blood to that in epithelial cells found on a drinking glass in the kitchen of the Gilbert/Trias home. Melissa Weber, the senior molecular biologist at Cellmark who performed the tests, testified that the test results showed that the types of DNA obtained from the glass were the same types as those found in the blood sample obtained from Williams. Weber also testified that Gilbert [**1117] and Trias were excluded by the tests as sources of the DNA.

   Weber testified that the DNA evidence was obtained using a DNA testing procedure called "polymerase chain reaction" (PCR). PCR testing differs from a more established form of DNA testing, known as "restriction fragment length polymorphism" (RFLP). Weber stated that while[***25] RFLP testing can provide a "very specific match between two samples," PCR testing can only "narrow down a potential number of donors to a certain group." She explained that while RFLP testing requires a large sample of material, PCR testing can be done on much smaller samples because it isolates and then replicates the DNA before typing it. n6

n6 The "polymerase chain reaction" (PCR) process, like the "restriction fragment length polymorphism" (RFLP) process, is designed to identify which forms of a particular gene are contained in a given sample. As we explained in Armstead v. State, 342 Md. 38, 673 A.2d 221 (1996): 

   "For each genetic characteristic, there may be two or more variations or forms of the controlling gene, which are called alleles. Each parent contributes one copy of each gene, so every individual has two copies or alleles of each gene. For two-allele genes, i.e., genes with only a 'form A' and a 'form B,' an individual may end up with one of three possible combinations: AA, AB, or BB. Each combination of alleles is known as a genotype." (Citations omitted).

342 Md. at 67, 673 A.2d at 235. For forensic identification, PCR is used to identify the alleles contained in a crime scene sample and to compare this information with a sample taken from the suspect.

   PCR involves three basic steps. See COMMITTEE ON DNA TECHNOLOGY IN FORENSIC SCIENCE, NATIONAL RESEARCH COUNCIL, DNA TECHNOLOGY IN FORENSIC SCIENCE, at 40-44 (1992) (NRC REPORT). First, the DNA must be extracted from the crime scene sample and purified. In some instances, suspect and victim DNA are identified and separated; however, separation is only possible with sperm samples, and can not be used in the case of saliva or blood. NRC REPORT, at 65-66. Next, the DNA sample is heated so that the two intertwined strands that make up the DNA helix are "unraveled," and separated. NRC REPORT, at 40. Chemical substances known as "primers" are then attached to the DNA strands to "block off" the segments of the strand that contain the specific alleles to be identified. NRC REPORT, at 40-41 (Fig. 1-6).

   The second step in the process is amplification. Using a process similar to the cell's own mechanism for producing DNA, the small DNA sample retrieved from the crime scene is copied a number of times to generate a larger sample for further testing.

   Finally, the third step in the process is identification. This may be accomplished in several ways, but the most common method is known as "reverse dot blotting." NRC REPORT, at 42. In this procedure, the amplified DNA sample is washed over a membrane or a test strip embedded with chemical probes designed to bond with particular alleles. If the sample of DNA taken from the crime scene includes an allele that matches the probe embedded at a particular location on the test strip, a colored dot will appear at that location on the strip. When the DNA sample is washed over a test strip embedded with probes for every possible allele of a given gene, a pattern of blue dots will appear.

   Because each person possesses two alleles for each gene, only one or two dots, indicating a match, should appear on the strip. If only one dot appears, that indicates that the sample contains two copies of the same allele (i.e., "AA" or "BB"). Samples with two copies of the same allele are termed "homozygous." If two dots appear, then the sample likely contains two different alleles (i.e., "AB"), although this result may also indicate contamination of a homozygous sample. NRC REPORT, at 68. Samples with two different alleles are termed "heterozygous." Furthermore, if more than two dots appear, this may indicate a contamination problem. Id.

   To illustrate this process, one commercial PCR test kit identifies the alleles of the HLA gene (the HLA-DQ alpha test). See Henry C. Lee et al., DNA Typing in Forensic Science, 15 AM. J. MED. & PATHOLOGY 269, 277-78 (1994). There are six alleles or forms of this gene, which are denoted 1.1, 1.2, 1.3, 2, 3, and 4. There are twenty-one possible combinations of these six alleles. Because some alleles are more common than others, the likelihood of possessing a particular combination of alleles is not simply 1/21. Instead, the likelihood of possessing a particular combination of alleles of the HLA gene is determined by evaluating the frequency of occurrence of that combination in the population. See 15 AM. J. MED. & PATHOLOGY, at 278.

   In addition to the HLA-DQ alpha test, there are now a number of other recently introduced commercial kits. Id. Some of these new kits test more than one gene. For example, the Polymarker kit tests five additional genes. Id. Using both the HLA-DQ alpha test and the Polymarker test substantially increases the discriminating power of PCR testing for forensic identification. Id. Both the HLA-DQ alpha and the Polymarker tests were used in this case.

[***26]

   [*746] Before trial, Williams moved to exclude the PCR test results. A two-day hearing was held during which the court heard expert testimony concerning PCR testing and whether it had attained general acceptance in the scientific community. See Reed v. State, 283 Md. 374, 381, 391 A.2d 364, 368 (1978). [**1118] After the hearing, the trial judge denied Williams's motion to exclude the DNA evidence, concluding "there is a general acceptance in the relevant scientific community as to the reliability of PCR...." Before addressing Williams's challenge to the admissibility of the PCR evidence, see Section V(B), infra, we shall consider his contention that the trial judge improperly restricted his attempts to cross-examine Weber concerning the frequency of errors and contamination occurring during PCR testing at Cellmark.

   On direct-examination, Weber was asked by the State to describe the procedures for PCR testing, and the steps taken to ensure that technicians at Cellmark properly perform the tests. Weber explained that Cellmark technicians undergo blind "proficiency tests" given by independent forensic associations to determine if the lab's procedures are working properly. Weber testified [***27]that Cellmark had no errors in any of the PCR proficiency tests the laboratory performed.

   During cross-examination, defense counsel asked Weber about testing errors and incidents of contamination that occurred apart from the proficiency tests. Specifically, defense counsel queried whether any tests at Cellmark ever had been contaminated from testing solution accidentally spilling over onto a sample and polluting it. Weber acknowledged that she could think of at least one occasion where such spill-over [*747] contamination of a sample had occurred while she was performing a test. Defense counsel then sought to ask Weber how often such errors occurred at Cellmark generally, and the State objected on the ground that the question was irrelevant. At a bench conference, the following colloquy ensued: 
 
"COURT: Okay. What's your proffer?
 
[DEFENSE COUNSEL]: Your Honor, it's the same issue that I dealt with earlier. I think that in order to make an assessment about the effect of contamination in the laboratory, I am entitled to find out how often it happened, if it happened very often with this technician, if it was discussed in the lab, if the lab took steps to deal appropriately[***28] with it.

   * * *
 
[STATE'S ATTORNEY]: It does not matter if fifty percent of their cases were contaminated. What matters is this one.

   * * *
 
COURT: Okay. I thought you were going to ask her, because you had some contamination in one instance, does it carry over to all the rest of them. That's what I thought you were going to ask her. Now, you're going back and rehashing the whole thing over again. I mean, I don't mind you asking her ... if the fact that she had a contamination before, does it carry over to everything they do.
 
[DEFENSE COUNSEL]: [We] also want[] to ask her about incidents of contamination in the lab by other technicians. She was allowed to testify about proficiency tests by other technicians. *** So she ought to be able to be allowed ... to testify to other incidents of contamination.

   * * *
 
[STATE'S ATTORNEY]: Your honor, what is the relevance of other cases?
 
COURT: Yeah, I --
 
[STATE'S ATTORNEY]: It's just not relevant.

   * * *
 
[DEFENSE COUNSEL]: Your Honor, there's a more general issue here. When a witness says, I've never made [*748] an error, certainly I can ... I don't think I'm confined to simply saying well, what[***29] proficiency tests have you done. Obviously, I have to -- I have to be able to cross-examine on the basis --
 
COURT: Well, what do you want to ask her about the proficiency test?
 
[DEFENSE COUNSEL]: About how many times these errors have occurred.
 
COURT: To her.
 
 [DEFENSE COUNSEL]: About how many times contaminations occurred, yes.
 
COURT: To her.
 
[STATE'S ATTORNEY]: Only to her.
 
COURT: She's -- that's what she answered. She's the one that answered.
 
[STATE'S ATTORNEY]: She can't speak for other technicians anyway.
 
[**1119] COURT: Yeah.

   * * *
 
[DEFENSE COUNSEL]: Your Honor, with all due respect, she already has testified as to the proficiency testing of all the other technicians at Cellmark. So why shouldn't she be able to be asked about contaminations by other --
 
COURT: Well, maybe she doesn't know.
 
[DEFENSE COUNSEL]: Maybe she does though. Let us ask the question.

   * * *
 
[STATE'S ATTORNEY]: Nobody else touched this case, so what difference does it make?"

At that point, the trial judge asked Weber whether she knew when other technicians in the lab made mistakes, and Weber responded that she did [***30]not. Because the question occurred at the bench conference, the jury did not hear the question or Weber's response. After Weber answered the question, the [*749] judge ended the line of inquiry, and defense counsel objected to not being allowed to further pursue the line of questioning.

   Our review of the trial transcript convinces us that the trial judge erred in restricting defense counsel from cross-examining Weber concerning the frequency of contamination during PCR testing at Cellmark. Williams should have been allowed to fully pursue questions regarding testing errors and possible spill-over contamination in the lab.

   As a general rule, great latitude should be allowed in the cross-examination of expert witnesses. 3 CHARLES E. TORCIA, WHARTON'S CRIMINAL EVIDENCE § 601, at 160 (13th ed. 1973). See also 2 SPENCER A. GARD, JONES ON EVIDENCE § 14:30, at 665-67 (6th ed. 1972). Thus, as a general matter, when DNA evidence is admitted against an accused in a criminal trial, questions on cross-examination regarding how that specific DNA evidence was obtained, and the laboratory conditions under which the DNA tests in that case were conducted, should be allowed. See United States v. [***31]  Bonds, 12 F.3d 540, 563 (6th Cir. 1993) (noting that "'vigorous cross-examination of the government's experts'" assists the jury in determining how much weight to give DNA evidence) (citation omitted); State v. Cauthron, 120 Wash. 2d 879, 846 P.2d 502, 512 (Wash. 1993) (noting that thorough cross-examination of State's experts on the possibility of error in the laboratory and errors in the proficiency test allowed the jury to get "a balanced picture" of the DNA evidence).

   Furthermore, cross-examination about incidents of spill-over errors and other contamination was especially pertinent in the instant case given that the test results were obtained using PCR testing. Possible contamination of samples is a major concern with the reliability of forensic use of PCR testing: 
 
"The extraordinary sensitivity of PCR is known to make it susceptible to contamination and may, therefore, be its Achilles heel. Contamination of the PCR reaction in a forensic laboratory with even the smallest trace amounts of DNA from another individual could produce a misidentification. [*750] Although this is likely to be rare, there is no way to demonstrate whether cross-contamination has or has not occurred. Cross-contamination[***32] occasionally occurs in molecular biology laboratories, and has been a concern with respect to the use of PCR in medical research. Hence, PCR requires extraordinarily tight quality control assurances." (Footnotes omitted).

William C. Thompson and Simon Ford, DNA Typing: Acceptance and Weight of the New Genetic Identification Tests, 75 VA. LAW REV. 45, 77-78 (1989). See also Note, Janet C. Hoeffel, The Dark Side of DNA Profiling: Unreliable Scientific Evidence Meets the Criminal Defendant, 42 STAN. L. REV. 465, 482 (1990)("The PCR technique ... is particularly susceptible to contamination...."). A 1992 report on DNA testing produced by a committee of leading forensic scientists stressed the importance of preventing contamination problems in laboratories where PCR testing is performed: 

   "One of the most serious concerns regarding PCR-based typing is contamination of evidence samples with other human DNA. PCR is not discriminating as to the source of the DNA it amplifies, and it can be exceedingly sensitive. Potentially, amplification [**1120] of contaminant DNA could lead to spurious typing results."

COMMITTEE ON DNA TECHNOLOGY IN FORENSIC SCIENCE, NATIONAL[***33] RESEARCH COUNCIL, DNA TECHNOLOGY IN FORENSIC SCIENCE, at 65 (1992). n7

n7 The NCR REPORT suggested three possible types of contamination that could affect PCR results: 
 
1. mixed samples (i.e., of suspect and victim DNA, or of multiple suspects);
 
2. contamination from handling in the field and in the laboratory; and
 
3. "carryover contamination" from one PCR test to another.

NCR REPORT, at 65-66.

   Although laboratories have implemented a variety of experimental controls to identify potential contamination in the PCR laboratory, these controls may not identify pre-existing contamination that occurs at the crime scene or in handling prior to arrival at the testing laboratory. As the NRC REPORT indicates, "even the simple act of flipping the top of a plastic tube might aerosolize enough DNA to pose a problem." NCR REPORT, at 66.

   Furthermore, even if there is no indication of contamination of the suspect's PCR test, it is important to consider both systemic contamination problems in the laboratory, as well as isolated, unrelated instances of contamination that occurred close in time to testing of the suspect's DNA, because: 
 
"it should be remembered that the controls are useful for monitoring general contamination in the laboratory, not the accuracy of a particular experiment. If a blank control is positive in one experiment, it indicates a potential problem not just for that experiment, but for any experiment performed at about the same time--even in a laboratory contaminated with PCR carryover, blank controls do not necessarily become contaminated on every occasion." (Emphasis added).

NCR REPORT, at 67.

   While we concluded in Armstead that "the better approach is generally to treat individualized errors in application of the DNA technique as matters of weight" rather than admissibility, we observed that some errors, including contamination or degradation of the DNA sample, might warrant exclusion.  342 Md. at 64 & n.18, 673 A.2d at 234 & n.18. Evidence of contamination of the suspect's test or of a systemic contamination problem in the laboratory may justify exclusion of the PCR results. Therefore, the trial judge should permit full exploration of any potential contamination to determine whether the DNA evidence is admissible.

   In addition, we reject the State's contention that "it does not matter if fifty percent of their cases were contaminated. What matters is this one." Although a scientific test need not be infallible to satisfy the due process requirement of "fundamental fairness," due process precludes the use of scientific test results that are grossly inaccurate.  Armstead, 342 Md. at 84-85, 673 A.2d at 244.

[***34]

   [*751] In the instant case, Williams sought through the proffered line of questioning to cast doubts on the reliability of the testing procedures used by Cellmark. This was a legitimate method of responding to the DNA evidence, especially considering the well-recognized effects of contamination on PCR test results. Cross-examination of Weber regarding the frequency of spill-over errors and contamination in the laboratory could have been vital to the jury's determination of how much weight to give to the PCR test results. See Armstead v. State, 342 Md. 38, 66, 673 A.2d 221, 235 (1996) (noting that "case-specific challenges to the manner in which a particular [DNA] test was conducted" ordinarily go to the weight of the evidence). Therefore, we hold that the trial judge erred in restricting Williams from fully cross-examining Weber concerning [*752] the prevalence of testing errors and contamination during PCR testing at Cellmark.

    B. Objection to admissibility of DNA evidence obtained via the PCR testing method

   Williams also contends that the PCR test results themselves should not have been admitted at trial. In Armstead, our most recent case dealing with the admissibility of DNA[***35] evidence, we delineated the general principles governing the admissibility of scientific evidence in Maryland courts: 
 
"Novel scientific evidence may become admissible in one of several ways. First, the evidence may be admitted by statute, if a relevant statute exists. See 5 MCLAIN, MARYLAND EVIDENCE § 401.4(c), at 277-78 (1987). Second, the proponent can prove that the evidence meets the Reed standard of "general acceptance" in the relevant scientific community.  Reed v. State, 283 Md. 374, 381, 391 A.2d 364, 368 (1978) (quoting Frye v. United States, 54 App. D.C. 46, 293 F. 1013, 1014 (D.C. Cir. 1923))."

342 Md. at 54, 673 A.2d at 228-29. DNA evidence obtained using RFLP testing is admissible in Maryland pursuant to statute. [**1121] See Md. Code (1974, 1995 Repl. Vol.), Courts & Judicial Proceedings Art., § 10-915. The statute does not apply to DNA evidence obtained using PCR testing, and this Court has not passed on the question of whether the PCR method meets the Frye-Reed test.

   Because we reverse Williams's convictions on other grounds, we need not decide whether the PCR method of DNA testing is admissible under the Frye-Reed standard. Further, given the[***36] rapidly developing scientific data on the reliability of the PCR method of DNA testing, we believe it might be premature to pass on the question based on the record from the initial Frye-Reed hearing in the instant case, which is more than a year old. Therefore, should the State seek to admit the PCR evidence at Williams's second trial, the trial court should consider conducting a new Frye-Reed hearing on the question of whether PCR testing results are admissible.

   [*753] VI. HARMLESS ERROR

   The State contends that even if errors were made during Williams's trial, reversal is not required because the errors were harmless. The State argues that the impact of the errors we have outlined was "insignificant" in the face of the "overwhelming evidence against Williams." The State points to the various circumstantial and forensic evidence linking Williams to the crime scene, including the hair comparison, the shoeprint evidence and the similarity of his handwriting to that on the "on vacation" sign, and to the evidence showing that Williams used the victims' ATM bank cards in the days after the murders.

   In Dorsey, supra, this Court laid down the standard for determining whether an[***37] error in a criminal case can be deemed "harmless:" 
 
"When an appellant, in a criminal case, establishes error, unless a reviewing court, upon its own independent review of the record, is able to declare a belief, beyond a reasonable doubt, that the error in no way influenced the verdict, such error cannot be deemed 'harmless' and reversal is mandated."

276 Md. at 659, 350 A.2d at 678. In the instant case, we are unable to conclude that the several errors committed in the trial court were harmless beyond a reasonable doubt.

   Initially, we point out that much of the evidence linking Williams to the crime was not conclusive. For example, although fibers from the brown cotton gloves found in Williams's bedroom were consistent with those found on the tape securing the "on vacation" sign at the murder scene, the State's expert witness could not rule out the possibility that the fibers on the tape could have come from another pair of cotton gloves. Further, the handwriting expert called by the State testified that he could not give an opinion on whether the "on vacation" sign was in Williams's handwriting. Hairs discovered in the home were found to be consistent with hair[***38] samples taken from Williams, but again the State's expert testified that the hair comparison was "not a basis for positive [*754] personal identification." In addition, although some items of clothing seized from Williams's room and his person tested positive for blood, the source of the blood could not be determined. Finally, while the shoe print discovered in the kitchen was consistent with a photocopy of shoes worn by Williams months earlier, an expert witness acknowledged that he could not make a positive identification.

   At the same time, several of the errors committed at trial were highly prejudicial. For example, the improper use of juvenile delinquency adjudications to impeach defense witness Mark Wheelton impacted the credibility of a critical defense witness. While substantial circumstantial evidence was produced at trial linking Williams to the crimes, the only direct evidence establishing Williams's guilt was Carl Spoone's testimony that Williams had confessed to the murders during a jailhouse conversation about God. Wheelton's testimony directly rebutted Spoone's version of events. Hence, Wheelton's credibility as a witness was vital to Williams's defense.

   Additionally, [***39] as we have explained, the trial court's restriction of Williams's cross-examination of the State's DNA expert, Melissa [**1122] Weber, was prejudicial. Refusing to allow Williams to question Weber about general problems of contamination of PCR samples at Cellmark deprived Williams of the full opportunity to cast doubt on the reliability of the DNA evidence. Further, as we discussed in section III, supra, the trial judge erred in admitting into evidence a crow bar and mace seized from Williams at the time of his arrest. There was no evidence linking either item to the crimes with which Williams was charged, and the admission of the items was unduly prejudicial. The significance of this error was compounded by the trial judge's ruling denying Williams's motion for a judgment of acquittal on the burglary charge, because it would have been fair for the jury to infer that the burglar and murderer were the same person. As we explained in section II, supra, the charge of burglary against Williams should never have been sent to the jury because there was no evidence of a breaking.

   [*755] Given the cumulative effect of these errors, we cannot conclude beyond a reasonable doubt that the jury's verdict[***40] was not influenced. Thus, we must reverse Williams's convictions and remand this case for a new trial.

   VII. OTHER ALLEGATIONS OF ERROR

   Because the State will undoubtedly seek to retry Williams for the murders of Gilbert and Trias, we will take this opportunity to provide guidance on several other issues raised on appeal that will very likely arise again in a second trial.

   A. Motion to suppress physical evidence

   First, we will consider Williams's motion to suppress physical evidence on the ground that it was seized in violation of the Fourth Amendment's prohibition of unreasonable searches and seizures. Williams moved before trial to suppress several items seized during searches of his room and of the brown bag in his possession at the time of his arrest. Both the bag and the room were searched pursuant to a warrant. n8 Several items, including the crow bar, mace, handcuffs and Gilbert's gold watch, were seized. After a pre-trial suppression hearing, the trial judge denied Williams's motion to suppress the physical evidence. 

n8 Police obtained a search warrant after arresting Williams that provided for a search of Williams's mother's house and "one brown bag...."

[***41]

   1. Probable cause underlying the search warrant

   First, Williams attacks the magistrate's determination that probable cause existed to issue the warrant. The Fourth Amendment of the United States Constitution and Article 26 of the Maryland Declaration of Rights require that no search warrant shall issue without probable cause.  State v. Lee, 330 Md. 320, 326, 624 A.2d 492, 494-95 (1993). Probable cause means a "'fair probability that contraband or evidence of a crime will be found in a particular place.'" Lee, 330 Md. at 326, 624 A.2d at 495 (citation omitted). Appellate review of [*756]a magistrate's probable cause determination is limited to whether the magistrate had "'a "substantial basis for ... concluding" that a search would uncover evidence of wrongdoing....'" Potts v. State, 300 Md. 567, 571, 479 A.2d 1335, 1337 (1984) (citation omitted).

   Williams argues that the probable cause determination for the search warrants was invalid because the warrants authorized the police to seize clothing, including "boots and or shoes" and "hooded jackets, sweat shirts and coats," even though the clothing worn by the perpetrator of the crime was unknown at the time. We find no merit[***42] in this contention. The full description of the items to be seized under the warrants authorized the police to seize "any and all boots and or shoes, eyeglasses, bandannas, hooded jackets, sweat shirts and coats." There was a more than adequate basis in the affidavit for the magistrate to include these items in the warrant. The affidavit described photographs taken by bank security cameras at the time cash was withdrawn from ATM machines using the bank cards belonging to Gilbert and Trias. One photograph, which was attached to the affidavit as an exhibit, showed a man wearing a bandanna, glasses [**1123] and some type of jacket or coat making the ATM withdrawal. We conclude that the magistrate had a substantial basis from which to find that the items of clothing listed could have linked Williams to the crimes.
 
   2. Items from brown bag

   Williams also contends that certain items seized from the brown bag should have been suppressed because they did not fit within the description in the warrant of items to be seized. The Fourth Amendment requires that search warrants particularly describe the place to be searched and the things to be seized. U.S. CONST. amend. IV. Williams argues that the several[***43] items seized from the brown bag were outside the scope of the warrant, and therefore should have been suppressed. Specifically, Williams points to the following items seized from the brown bag: (1) the crow bar; (2) a pair of shorts; (3) two store receipts; (4) cigarettes; and (5) a jar [*757] of Vaseline. Although only the crow bar and the receipts were actually admitted as evidence at trial, we cannot anticipate whether the State will seek to admit other items seized from the bag at a second trial. Hence, we will briefly consider Williams's objections to all five items. n9

n9 Williams does not argue that other items seized from the bag, including the gold watch and mace, should have been suppressed.

   Even assuming Williams is correct that none of the five items fits within the description of items to be seized in the warrant, several of the items were clearly within the scope of the plain view doctrine, and thus not subject to suppression. As we explained in Livingston v. State, 317 Md. 408, 564 A.2d 414 (1989):[***44] 

   "The plain view doctrine 'serves to supplement a previously justified intrusion, ... and permits a warrantless seizure.' State v. Wilson, 279 Md. 189, 194, 367 A.2d 1223, 1227 (1977). Therefore, when the police (1) have a prior justification for their intrusion; (2) inadvertently discover evidence which is in plain view; and (3) immediately perceive that what they have discovered is evidence, they are permitted to seize that evidence."

317 Md. at 412, 564 A.2d at 416-17. Here, there is no question that police were justified in searching the brown bag pursuant to a valid warrant, and that the items were discovered inadvertently during the search. The only question is whether the police had probable cause to believe the items were incriminating. See Livingston, 317 Md. at 412 n.5, 564 A.2d at 417 n.5.

   We believe the police had probable cause to seize the store receipts, which provided police with vital evidence of Williams's location and activity after the murders. The receipts also provided police with evidence that Williams had spent money, which was significant because police had evidence that Williams had withdrawn money using the victims' ATM cards. Further, [***45] one of the receipts had a Baltimore address, and police knew that Gilbert's Acura Legend had [*758] been discovered in Baltimore. The fact that the officer who seized the receipts may have had to peruse them to some extent before ascertaining that they potentially linked Williams to the crimes does not take the seizure outside the scope of the plain view exception. The warrant authorized police to seize various documents and receipts from the bag, including "any and all documents, papers, [or] writings" belonging to Gilbert or Trias, or any documents tending to show a connection between Williams and Gilbert and Trias. Thus, the police were entitled to peruse the receipts to determine whether they were within the scope of the warrant. See U.S. v. Menon, 24 F.3d 550, 563 (3rd Cir. 1994) (recognizing that when a search warrant authorizes the seizure of documents, police are entitled to glance at each document to determine whether it is within the scope of the warrant); see also United States v. Slocum, 708 F.2d 587, 604 (11th Cir. 1983). In the course of lawfully examining these receipts, the police obtained probable cause to seize them under the plain view exception.

   Police also[***46] had probable cause to seize the cigarettes, because officers had observed a cigarette butt at the crime scene. Police had probable cause to seize the crow [**1124] bar, which they could have believed at that time may have been used to gain entry to the house. n10 There was no testimony at the suppression hearing as to the evidentiary significance of the jar of Vaseline or the shorts, both of which Williams now complains were improperly seized. Hence, we cannot conclude they were within the plain view exception. 

n10 Although we held in section III, supra, that the crow bar should not have been admissible at trial on relevancy grounds, we merely note here that the trial judge did not err in refusing to suppress it because of a Fourth Amendment violation.

   B. Motion to suppress statements to police

   Williams also contends that the trial judge erred in denying his motion to suppress statements he made to police following [*759] his arrest. According to testimony from the suppression hearing, Williams was taken to the police [***47]station after his arrest and placed in an interview room, where he waited for approximately 15 minutes. When police Detectives Tim Zywiolek and Keith Williams entered the room and identified themselves, Williams asked why he was being detained. The officers informed Williams that he was under arrest for a double murder. One of the officers then showed Williams a photograph portraying Williams using one of the victims' ATM cards. According to Detective Zywiolek, Williams stated "'yeah, that's me'" upon seeing the photograph. Following that statement, Williams was given his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

   After receiving his Miranda warning, Williams indicated to police that he did not want to answer further questions and indicated he wanted an attorney. As the officers began to gather their papers, one of the officers told Williams to remove his earring and Williams mumbled under his breath, "you can't get me. I'll just say a girl gave me the card." After this second statement, Detective Zywiolek testified that he commented that "this is going to work" and reiterated to Williams that he was being charged with the[***48] murders of Gilbert and Trias. At that point, Williams made a third statement: "'I know I'm never getting out.'" Detective Zywiolek testified that Williams was not looking at police when he made the second and third statements, but rather seemed to be "in his own little world."

   The trial judge suppressed the first statement by Williams "yeah that's me," because it was made before Williams had received his Miranda warning. The judge denied Williams's motion to suppress the second and third statements to the detectives. Williams contends that the second and third statements, made after the Miranda warning and after Williams [*760] requested an attorney, also should have been suppressed. n11 We disagree. 

n11 The question of whether the trial judge was correct in suppressing Williams's first statement to police, made before the Miranda warning, is not before us on this appeal. Hence, we must assume, for purposes of our analysis of the subsequent statements, that the trial judge's ruling was correct.

   It is[***49] established law that once a defendant, "detained in a custodial setting, has asserted his right to counsel, all interrogation must cease until an attorney has been furnished to consult with him or he initiates further communication, exchange or conversations." State v. Conover, 312 Md. 33, 38, 537 A.2d 1167, 1169 (1988) (citing, inter alia, Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S. Ct. 1880, 1884-85, 68 L. Ed. 2d 378, 386-87 (1981)). Hence, the question before us is whether the police continued to interrogate Williams after he invoked his right to remain silent and requested an attorney. The Supreme Court has made clear that, after a suspect has requested an attorney, "interrogation" includes more than direct questioning: 
 
"'Interrogation' under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect." (Footnote omitted).

[**1125] Rhode Island v. Innis, 446 U.S. 291, 301, 100 S. Ct. 1682, 1689-90, 64 L. Ed. 2d 297, 308 (1980). See also Conover,[***50] 312 Md. at 38-39, 537 A.2d at 1169-70.

   Thus, we must decide whether the words and actions of the detectives were reasonably likely to elicit incriminating responses from Williams. We conclude that they were not. The testimony from the suppression hearing reveals that Williams made the second statement, "you can't get me. I'll just say a girl gave me the card," as the police officers began to gather their papers and told Williams to remove his earring. These were routine procedures that the [*761]officers could hardly be expected to anticipate would prompt an incriminating statement. Williams made the third statement, "I know I'm never getting out," after one of the officers commented that "this is going to work" and reiterated to Williams that he was being charged with two murders. These comments simply advised Williams that police had evidence they believed established Williams's guilt in a double homicide, and as a result he was being charged with murder. We cannot conclude that the trial judge erred in finding that these innocuous comments were not reasonably likely to elicit an incriminating response from Williams. See U.S. v. Payne, 954 F.2d 199, 202 (4th Cir.) ("The Innis[***51] definition of interrogation is not so broad as to capture within Miranda's reach all declaratory statements by police officers concerning the nature of the charges against the suspect and the evidence relating to those charges."), cert. denied, 503 U.S. 988, 112 S. Ct. 1680, 118 L. Ed. 2d 396 (1992); Conover, 312 Md. at 42-45, 537 A.2d at 1171-72 (finding no interrogation where police provided defendant with statement of charges explaining evidence against him). Thus, we find that Williams's statements were not the result of police interrogation.

   We also reject Williams's contention that the "illegality" of the first, pre-Miranda statement "tainted" the second and third statements. Assuming the first statement was obtained in violation of Miranda, it was not coerced or involuntarily made. Since the second and third statements were made voluntarily after Williams received a Miranda warning, any "illegality" did not taint those subsequent statements. See Oregon v. Elstad, 470 U.S. 298, 318, 105 S. Ct. 1285, 1298, 84 L. Ed. 2d 222, 237-38 (1985). We find no error in the trial judge's ruling that the second and third statements by Williams were not subject to suppression. [***52]

   C. Objection to victim impact statements

   The final issue we shall consider is whether the trial judge erred in admitting certain victim impact statements at the sentencing hearing. At the hearing, the judge admitted, over objection, two "victim impact" statements written by a friend [*762] of Gilbert and a colleague of Trias. Williams contends the admission of the written statements was improper. We agree.

   The admissibility of victim impact statements in cases in which the State seeks the death penalty or imprisonment for life without parole is governed by Md. Code (1957, 1993 Repl. Vol.), Art. 41, § 4-609(d), n12 which provides: 

   "In any case in which the death penalty or imprisonment for life without the possibility of parole is requested under Article 27, § 412, a presentence investigation, including a victim impact statement, shall be completed by the Division of Parole and Probation, and shall be considered by the court or jury before whom the separate sentencing proceeding is conducted under Article 27, § 412 or § 413."

The plain language of the statute makes the preparation of a presentence investigation (PSI) report by the Division of Parole and Probation[***53] mandatory in a death penalty case, and requires that a victim impact statement be included in or incorporated as part of the PSI. The PSI in the instant case was completed before trial and apparently did not include any victim impact statement as required by the statute. As a result, the State's Attorney independently offered two [**1126] written statements from friends of Gilbert and Trias, arguing that they were admissible as "victim impact" statements. The judge agreed and admitted the statements. 

n12 Unless otherwise provided, all statutory references hereinafter are to Maryland Code (1957, 1993 Repl. Vol.), Article 41.

   The State contends that the written statements were admissible under Art. 41, § 4-609(c)(2)(ii), which authorizes the State's Attorney to prepare and submit a victim impact statement for consideration in cases where the court does not order a PSI. We disagree with the State's contention. Section 4-609(c) is a general provision that applies prior to the circuit court sentencing a defendant to[***54] the jurisdiction of the Division of Correction. It provides the court with the discretion to order a PSI in felony and certain misdemeanor cases "if the court is satisfied that the investigation would help the sentencing [*763]process." Art. 41, § 4-609(c)(1). Section 4-609(c) does not apply in death penalty cases, which are specifically governed by § 4-609(d), and in which a PSI and victim impact statement are mandatory rather than discretionary. See Passnault v. Board of Admin. Appeals, 309 Md. 466, 475, 525 A.2d 222, 226 (1987) (noting that an applicable specific statute controls over a general statute). See also State v. Kennedy, 320 Md. 749, 755, 580 A.2d 193, 196 (1990). Hence, the State has no right in a death penalty case to admit its own written victim impact statements under § 4-609(c)(2)(ii). The only written victim impact statement admissible in a death penalty case is that contained in the PSI prepared by the Division of Parole and Probation and specifically authorized as well as required by § 4-609(d). Because the statements written by friends of Gilbert and Trias were not included in or incorporated as part of a PSI prepared pursuant to § 4-609(d), they[***55] should not have been admitted.

   We stress, however, that we do not mean to rule out the possibility that information from friends or colleagues of a victim might be considered in the sentencing phase of a death penalty case. Such information may well be admissible if it is included in or incorporated as part of the PSI report prepared by the Division of Parole and Probation, which has wide latitude in preparing such reports. Our interpretation of the statute is simply that the only written victim impact statements that are admissible in death penalty cases are those made part of a PSI prepared by the Division of Parole and Probation as authorized by Art. 41, § 4-609(d). n13

n13 In the instant case, Williams's objection was to the admissibility of the "victim impact" statements offered by the State's Attorney, rather than to the absence of the PSI required by Art. 41, § 4-609(d). We note that the unobjected to failure to prepare the PSI and victim impact statement may not be grounds for reversal.

 
   The State[***56] also argues that despite the unambiguous language of the PSI statute, the statements from the friends of Gilbert and Trias were admissible at sentencing under the holding of Reid v. State, 302 Md. 811, 490 A.2d 1289 (1985). In Reid, we held that the State could admit, in addition to the [*764] victim impact statement prepared by the Division of Parole and Probation and included in the PSI, a separate, additional victim impact statement prepared by the State's Attorney. 302 Md. at 821, 490 A.2d at 1294. We interpreted a prior version of the PSI statute, then codified as Md. Code (1957, 1982 Repl. Vol.), Art. 41, § 124, as setting "a minimum standard for what the sentencing judge ... must consider...." Reid, 302 Md. at 821, 490 A.2d at 1294. We stated that the statute "does not prevent additional statements or comments from being offered by the victim, his family or the State's Attorney," and we left it to the discretion of the sentencing judge whether to receive and consider such supplemental statements. Id.

   This reasoning, however, does not apply in the instant case. Reid was not a death penalty case. As we have explained, the admissibility of victim impact statements[***57] in death penalty cases is specifically governed by Art. 41, § 4-609(d), which requires that the Division of Parole and Probation prepare a PSI and victim impact statement in every death penalty case. Our decision in Reid was based on a prior version of the PSI statute which did not include the provision mandating the preparation of a presentence investigation and victim impact statement by the Division of Parole and Probation in all capital cases. The legislature added that provision in 1983. See Chapter 297 of the Acts of 1983.

   [**1127] We believe that the specific provision requiring a PSI and victim impact statement, now codified as Md. Code (1957, 1993 Repl. Vol.), Art. 41, § 4-609(d), controls the admissibility of victim impact statements in death penalty cases. In adopting this specific provision requiring the preparation of a victim impact statement by the Division of Parole and Probation in all death penalty cases, we believe that the legislature intended to limit the use of written victim impact statements in death penalty cases to those included in or incorporated as part of a PSI prepared by the Division of Parole and Probation. See Scott v. State, 297 Md. 235, 246-52, [***58] 465 A.2d 1126, 1132-35 (1983) (recognizing that the type of evidence admissible pursuant to the sentencing statutory scheme in a death [*765] penalty case is generally more restricted than evidence admissible at sentencing in a non-death penalty case).

   The State also argues that the statements are admissible under a provision of the general statute governing the admissibility of evidence at a capital sentencing proceeding. Md. Code (1957, 1992 Repl. Vol., 1995 Supp.), Art. 27, § 413(c)(v) allows the court to admit "any other evidence that [it] deems of probative value and relevant to sentence, provided the defendant is accorded a fair opportunity to rebut any statements." As with § 4-609(c), this general provision does not apply in the instant case, however, because the legislature has enacted a specific statute dealing with admissibility of written victim impact statements. See Passnault, 309 Md. at 475, 525 A.2d at 226. See also Kennedy, 320 Md. at 755, 580 A.2d at 196.

   VIII.

   Williams also raises several other allegations of error, which, given our reversal, we need not address. 
 
JUDGMENTS REVERSED AND CASE REMANDED TO THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY [***59]  FOR NEW TRIAL. COSTS TO BE PAID BY ANNE ARUNDEL COUNTY.

   Judge Bell concurs in the judgment and in the opinion except for Part VII.

CONCURBY: RODOWSKY

CONCUR: Rodowsky, J., concurring.

   I join in the judgment of the Court and in its opinion, with the exceptions of Part V.A. and so much of Part VI as is predicated on the holding in Part V.A. The line of cross-examination which the defense sought to pursue dealt with instances of actual contamination of samples in the control of others than the witness, who had no personal knowledge concerning what others had done. Thus, the majority opinion's interesting discussion of the theoretical ways in which a [*766] DNA sample can be contaminated is not an issue presented by the record. 

HANGARS, INC. v. MARYLAND AVIATION ADMINISTRATION 
No. 8, September Term, 1996
 
COURT OF APPEALS OF MARYLAND
 
342 Md. 577; 677 A.2d 1077; 1996 Md. LEXIS 60

 June  18, 1996, Filed

   PRIOR HISTORY: [*1]

   Appeal from the Circuit Court for  Anne Arundel  County. Eugene M. Lerner, JUDGE.

COUNSEL: SUBMITTED BY: Benjamin Lipsitz of Baltimore, MD, FOR PETITIONER.
 
SUBMITTED BY: Janice G. Salzman and Brain G. Kim, Assistant Attorneys General, Maryland Aviation Administration, of BWI Airport, MD, FOR RESPONDENT.

JUDGES: SUBMITTED BEFORE Murphy, C.J.; Eldridge, Rodowsky, Chasanow, Karwacki, Bell, and Raker, JJ.

OPINION: PER CURIAM ORDER

   The petition for writ of certiorari in the above entitled case having been granted, it is this 18th day of June, 1996

   ORDERED, by the Court of Appeals of Maryland, that the writ of certiorari be, and it is hereby, dismissed with costs, the petition having been improvidently granted.

   /s/ Robert C. Murphy

   Chief Judge 

ADAM SCHLOSSMAN v. STATE OF MARYLAND 
No. 112, September Term, 1995
 
COURT OF APPEALS OF MARYLAND
 
342 Md. 403; 676 A.2d 513; 1996 Md. LEXIS 49

 May  16, 1996, Filed

   PRIOR HISTORY: [*1]

   Certiorari to the Court of Special Appeals. (Circuit Court for  Anne Arundel  County). Robert H. Heller, JUDGE.

COUNSEL: ARGUED BY Julia Doyle Bernhardt, Assistant Public Defender, (Stephen E. Harris, Public Defender, on brief) of Baltimore, MD, FOR PETITIONER.
 
ARGUED BY Diane E. Keller, Assistant Attorney General, (J. Joseph Curran, Jr., Attorney General, on brief) of Baltimore, MD, FOR RESPONDENT.

JUDGES: ARGUED BEFORE Robert C. Murphy, C.J., Eldridge, Rodowsky, Chasanow, Karwacki, Bell, Raker, JJ.

OPINION: PER CURIAM ORDER

   The petition for writ of certiorari in the above entitled case having been granted and heard, it is this 16th day of May, 1996

   ORDERED, by the Court of Appeals of Maryland, that the writ of certiorari be, and it is hereby, dismissed with costs, the petition having been improvidently granted.
 
/s/ Robert C. Murphy

   Chief Judge

                       
LINDA C. MOLESWORTH v. RANDALL BRANDON et al. 
No. 83, September Term, 1995
 
COURT OF APPEALS OF MARYLAND
 
341 Md. 621; 672 A.2d 608; 1996 Md. LEXIS 23; 64 U.S.L.W.2587; 11 BNA IER CAS 961; 70 Fair Empl. Prac. Cas. (BNA) 524

 March  5, 1996, Filed

   SUBSEQUENT HISTORY: [***1]

   As Corrected March 15, 1996.

PRIOR HISTORY: Certiorari to the Court of Special Appeals (Circuit Court for  Anne Arundel  County). H. Chester Goudy JUDGE.

DISPOSITION: JUDGMENT AFFIRMED IN PART AND REVERSED IN PART; CASE REMANDED TO THE COURT OF SPECIAL APPEALS WITH DIRECTIONS TO AFFIRM THE JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY. COSTS IN THIS COURT AND THE COURT OF SPECIAL APPEALS TO BE PAID BY BRANDON.

CORE TERMS:  public policy, sex discrimination, wrongful discharge, direct evidence, fired, hired, exempted, trainer, sex, cause of action, female, requested instruction, hire, common law, common law cause, state law, age discrimination, discriminate, exempt, instruct, woman, jury instruction, state statute, discriminatory, infer, clubs, summary judgment, administrative process, marital status, discriminated

COUNSEL: ARGUED BY Alan Hilliard Legum (Alan Hilliard Legun, P.A. on brief) of Annapolis, MD FOR PETITIONER.
 
ARGUED BY E. Alexander Adams (Betty Smith Adams, Adams & Adams, on brief) of Ellicott City, MD FOR RESPONDENT.
 
AMICUS CURIAE: Glendora C. Hughes, General Counsel; Jonathan P. Sills, Assistant General Counsel, State of Maryland Commission on Human Relations, of Baltimore, MD.
 
Jay R. Frieds, John E. Book, Kruchko & Fried, of Baltimore, MD (Attorneys for Amicus Curiae - The Maryland Chamber of Commerce and The National Federation of Independent Business).

JUDGES: ARGUED BEFORE Murphy, C.J., Eldridge, Rodowsky, Chasanow, Karwacki, Bell, Raker, JJ.

OPINIONBY: Murphy

OPINION:  
[*624] [**609] OPINION BY MURPHY, C.J.
 
Filed: March 5, 1996
 
The issues in this case are first, whether a common law cause of action for wrongful discharge[***2] of a female employee based on sex discrimination lies against an employer with less than fifteen employees and second, whether, in such a case, the court must instruct the jury that where the same person hires and fires the employee, there is an [**610] inference that the discharge was not due to the employee's sex.

   I

   Dr. Linda Molesworth, D.V.M., graduated from the University of Pennsylvania Veterinary School, received her license to practice veterinary medicine in the state of Maryland, and, on July 1, 1988, began working for Dr. Randall Brandon, D.V.M., whose practice concentrated on thoroughbred racehorses. The other members of the practice at that time were Dr. Jeffrey Palmer, who had been with the practice for several years, and Dr. Mark Akin, who had started just a few months earlier. Molesworth was the first female full-time veterinarian employed by Brandon.

   When she began, Molesworth was informed that, as the least experienced person in the practice, her primary duty would be working in the Lasix barn at the Laurel racetrack, giving Lasix shots to horses, n1 approving medications, and performing other miscellaneous tasks. On several occasions, Brandon told Molesworth that someone[***3] had complimented her work. Molesworth received bonuses in December, 1988 and [*625] March, 1989. On July 1, 1989, her contract was renewed and her salary increased from $25,000 to $30,000.

n1 Lasix is administered to some horses prior to racing in order to prevent hemorrhaging in the lungs.

   Dennis Manning, a trainer at the racetrack, was not pleased with Molesworth, however, because he did not want a female veterinarian in the barn. Nevertheless, in August of 1989, Molesworth received another bonus along with a note from Brandon which read:
 
Linda, you are doing a very good job and I appreciate your efforts. Don't worry about the Mannings. We can't please them all. He's the one with the problem. Thanks, Randy.
 
Again, in December, 1989, Molesworth received a bonus with a note from Brandon which read: "You are doing very well in the practice and the clients are quite happy with you."

   Akin decided to leave the practice as of April 1, 1990. A trainer who was not employed by Brandon gave Akin a going-away[***4] party to which Molesworth was not invited. When Molesworth discovered this, she asked Brandon, at a meeting in April, 1990, why she had not been invited. He laughed and said she would have been the only woman there. At the same meeting, Brandon informed Molesworth that some of the trainers at the racetrack were complaining about her. Brandon said her work was fine and that the trainers had "never had a female veterinarian work for them before." He told her that she was doing fine and to "give them some time."

   A new associate, Dr. Greg Fox began working for Brandon in May, 1990. Molesworth and Fox performed about the same amount of Lasix work. Molesworth complained to Brandon that Fox, as the most junior member of the practice, should be primarily responsible for the Lasix work. Brandon responded that he wanted Fox to meet the clients.

   During May and June of 1990, Molesworth was not informed of any other complaints from trainers and on July 1, 1990, her salary was increased from $30,000 to $35,000. On July 13, 1990, Molesworth met with Brandon and Palmer, who had a contract to acquire 48% of the stock in the incorporated practice. Brandon informed Molesworth that her contract would[***5] not be renewed because of complaints from approximately [*626] eight trainers. Molesworth asked if she was being fired because she had complained about the Lasix schedule. Brandon replied that was not the reason. She then asked if she was being fired because she is a woman. Palmer replied, "Yes, that's part of it." According to Molesworth's testimony, Brandon "nodded in agreement and looked away" without verbally responding. Brandon told Molesworth that he would give her an excellent recommendation and that her veterinary work was fine.

   On September 20, 1991, Molesworth filed a complaint against Brandon in the Circuit [**611] Court for Anne Arundel County alleging common law wrongful discharge. The complaint alleged that when she was terminated by Brandon, "she was informed by [him] that her employment was being terminated by him because of the fact that she was female." She claimed $150,000 in compensatory damages and $150,000 in punitive damages. The court denied Brandon's Motion for Summary Judgment.

   At trial, Molesworth testified about the July 13, 1990 meeting with Brandon and Palmer. Palmer denied having made the statement attributed to him, and Brandon denied having nodded in agreement. [***6] Both doctors testified that when Molesworth asked if she was being fired because she was a woman, they answered "no."

   Nancy Heil, a trainer, testified that she had no problem with Molesworth. Several other trainers testified for Brandon that Molesworth was argumentative and inflexible. Akin testified that when Molesworth gave shots, she frequently left "knots" which upset the trainers. In addition, Dr. Jean Dobson testified that Brandon offered her a job in the fall of 1990, after Molesworth was fired and before she filed suit. Dobson said she turned down the offer because she earned significantly more money at the Food and Drug Administration.

    At the end of the testimony, the court denied Brandon's Motion for Judgment. Therefore, he requested that the jury be instructed, in part, as follows:
 
[*627] In cases where the hirer and firer are the same person, there is a strong inference that the discharge from employment was not due to sex discrimination, because it does not make sense that someone would hire a member of a class he does not like, only to discharge that person once he or she is on the job.
 
The court refused to instruct the jury as requested.

   Molesworth claimed[***7] damages of $28,496.41 for lost wages from 1990, 1991, and 1992. She presented no evidence of monetary damages for 1993. The jury interrupted its deliberations to inform Judge Chester Goudy that it had found in favor of Molesworth but without any non-economic damages. It inquired whether it could award attorney's fees, and Judge Goudy instructed the jury that it could not. On September 13, 1993, the jury awarded Molesworth $39,198 in damages. Brandon's Motion for Judgement Notwithstanding the Verdict, Motion for New Trial, and Motion to Revise the Judgment were denied.

   Brandon appealed to the Court of Special Appeals; that court held that the common law wrongful discharge cause of action was available to Molesworth and that she presented sufficient evidence to withstand Brandon's Motions for Summary Judgment, Judgment, and Judgment Notwithstanding the Verdict. The court, nonetheless, reversed the circuit court's judgment, basing its ruling on the lower court's refusal to instruct the jury as requested by Brandon, and remanded for a new trial. Brandon v. Molesworth, 104 Md. App. 167, 655 A.2d 1292 (1995).

   Both Brandon and Molesworth filed petitions for certiorari, which we granted. [***8] The Maryland Commission on Human Relations, the agency charged with interpreting, administering, and enforcing the Maryland Fair Employment Practices Act, joined as amicus curiae in support of Molesworth. The Maryland Chamber of Commerce and the National Federation of Independent Business, statewide and national agencies that promote small businesses, joined as amici curiae in support of Brandon.

   [*628] II

   Molesworth alleges that in terminating her employment, Brandon violated the public policy announced in § 14 of the Fair Employment Practices Act, Maryland Code (1994 Repl. Vol., 1995 Supp.) Art. 49B:
 
It is hereby declared to be the policy of the State of Maryland, in the exercise of its police power for the protection of the public safety, public health and general welfare, for the maintenance of business and good government and for the promotion of the State's trade, commerce and manufacturers to assure all persons equal opportunity in receiving employment and in all labor management-union relations regardless of race, color, religion, ancestry or [**612] national origin, sex, age, marital status, or physical or mental handicap unrelated in nature and extent so as to reasonably[***9] preclude the performance of the employment, and to that end to prohibit discrimination in employment by any person, group, labor organization, organization or any employer or his agents.
 
(emphasis added). Brandon alleges that since employers with less than fifteen employees are exempted under § 15(b), n2 the public policy announced in § 14 does not apply to those employers. We disagree and hold that, to this extent, the § 15(b) exemption merely excludes small businesses from the administrative process of the Fair Employment Practices Act under the aegis of the Human Relations Commission, but not from the public policy of § 14. The plain language of § 14, the legislative history of Article 49B, and prior decisions of this and other state and federal courts support this conclusion.

n2 Section 15 (b) defines "Employer" as "a person engaged in an industry or business who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person."

[***10]

   A

   When she was terminated, Molesworth was an at will employee. "The common law rule, applicable in Maryland, is [*629] that an employment contract of indefinite duration, that is, at will, can be legally terminated at the pleasure of either party at any time." Adler v. American Standard Corp., 291 Md. 31, 35, 432 A.2d 464 (1981). The legislature has "engrafted exceptions" upon that rule, such as Art. 49B, § 16(a)(1) making it unlawful for an employer to discharge an employee "because of . . . race, color, religion, sex, age, national origin, marital status, or physical or mental handicap . . . ." Adler, supra, 291 Md. 31. In Adler, we recognized a judicial exception to the terminable at will rule: the common law cause of action for wrongful discharge. We held that "Maryland does recognize a cause of action for abusive discharge by an employer of an at will employee when the motivation for the discharge contravenes some clear mandate of public policy." n3 Id. at 47. 

n3 The term "wrongful discharge" encompasses "abusive" and "retaliatory" discharge. Adler, supra, 291 Md. at 36, n.2.

[***11]

   Generally, a plaintiff must allege violation of a particular statute with some specificity to state a cause of action for wrongful discharge. In Adler, the complaint alleged that the plaintiff's discharge "was motivated solely by [the corporation's] desire . . . to conceal improprieties and illegal activities which plaintiff might have disclosed . . . ." Id. at 34. The complaint did not, however, state a cause of action for wrongful discharge.

   The first source of public policy Adler advanced was a criminal statute. Adler's allegations were "too general, too conclusory, too vague and lacking in specifics to mount up to a prima facie showing that the claimed misconduct contravened" the statute. Id. at 44.

   Second, Adler proposed that bribery and falsification of corporate records are so clearly against public policy that he need not identify any particular source. He defined "public policy" as that which is "commonly accepted as necessary to the public good." Id. at 43. Quoting Md.-Nat'l Cap. P.& P. v. Wash. Nat'l Arena, 282 Md. 588, 605-606, 386 [*630] A.2d 1216 (1978), we declined to adopt such an expansive view of public policy: 
 
Not being restricted to the[***12] conventional sources of positive law (constitutions, statutes, and judicial decisions), judges are frequently called upon to discern the dictates of sound judicial policy and human welfare based on nothing more than their own personal experience and intellectual capacity. . . . Inevitably, conceptions of public policy tend to ebb and flow with the tides of public opinion, making it difficult for courts to apply the principle with any degree of certainty. 
 
Adler, supra, 291 Md. at 45. "Declaration of public policy is normally the function of the legislative branch." Id. at 45; [**613] see also Finance Etc. Co. v. Truck Co., 145 Md. 94, 99, 125 A. 585 (1924) ("The public policy of a state is the policy which its people speaking through their legislature adopt."). We will recognize public policy that is not derived from constitutional or statutory provisions as the basis of a judicial determination "only with the utmost circumspection." 291 Md. at 46, quoting Patton v. United States, 281 U.S. 276, 306, 50 S. Ct. 253, 261, 74 L. Ed. 854 (1930). Thus, "absent a statute expressing a clear mandate of public policy, there ordinarily is no violation of public policy by an[***13] employer's discharging an at will employee. . . ." Watson v. Peoples Ins. Co., 322 Md. 467, 478, 588 A.2d 760 (1991); see also Ewing v. Koppers Co., 312 Md. 45, 537 A.2d 1173 (1988).

   B
 
We must decide whether § 14 of Art. 49B provides a sufficiently clear mandate of public policy to support Molesworth's common law wrongful discharge cause of action against Brandon. Specifically, we must determine whether the term "employer" in § 14 includes those exempted under § 15(b). "In construing the meaning of a word in a statute, the cardinal rule is to ascertain and carry out the real legislative intention. The primary source of legislative intent is, of course, the language of the statute itself." Tucker v. Fireman's [*631] Fund Insurance Co., 308 Md. 69, 73, 517 A.2d 730 (1986). Ordinarily, therefore, we need not look beyond the plain language of the statute to discover the legislative intention. In other circumstances, however, a statute may be ambiguous and "the entire statutory scheme must be analyzed as a whole." Outmezguine v. State, 335 Md. 20, 41, 641 A.2d 870 (1994). In addition, we may need to "consider other 'external manifestations' or 'persuasive evidence,' including[***14] a bill's title and function paragraphs, . . . and other material that fairly bears on the fundamental issue of legislative purpose or goal. . . ." Kaczorowski v. Mayor and City Council of Baltimore, 309 Md. 505, 514-15, 525 A.2d 628 (1987).

   The Fair Employment Practices Act, Art. 49B, makes certain actions "unlawful employment practices" and creates an administrative procedure for handling discrimination complaints. It is an unlawful employment practice, under Art. 49B, § 16(a)(1), for an "employer . . . to discharge any individual . . . because of such individual's race, color, religion, sex, age, national origin, marital status, or physical or mental handicap . . ." Any person alleging discrimination under § 16(a)(1), or any other section of Article 49B, may file a complaint with the Commission on Human Relations. § 9A(a).

   Under §§ 3, 4, 9, 10, 11, and 12, the Commission on Human Relations may receive and issue complaints alleging discrimination, conduct investigations based on complaints received, hold investigative hearings for fact finding, bring civil actions on behalf of complainants for injunctive relief, conduct hearings in cases of failure to reach agreement on the[***15] elimination of discriminatory actions, and institute litigation to enforce compliance with the article. See Weathersby v. Kentucky Chicken Co., 86 Md. App. 533, 587 A.2d 569 (1991); rev'd on other grounds, 326 Md. 663, 607 A.2d 8 (1992). Molesworth did not file a complaint with the Commission because it was her belief that Brandon is not included within the definition of "employer" in § 15(b) and is, therefore, exempt from this administrative process.

   [*632] The public policy in § 14, however, by its own language, proscribes discrimination in employment by "any employer." (emphasis added). If the term "employer" in § 14 were meant to refer only to employers as defined in § 15(b), the term "any" would be unnecessary. We seek to read statutes "so that no word, clause, sentence or phrase is rendered surplusage, superfluous, meaningless, or nugatory." Montgomery County v. Buckman, 333 Md. 516, 524, 636 A.2d 448 (1994). Thus, § 14 applies to "any employer," including those exempted in § 15(b).
 
Maryland's public policy against sex discrimination is ubiquitous. Section 14 is one of at least thirty-four statutes, one executive order, and one constitutional amendment in[***16] Maryland that prohibits discrimination based on sex in certain circumstances. Together these provisions provide strong evidence of a legislative intent to end discrimination based [**614] on sex in Maryland. We presume the legislature did not intend to abrogate the common law, absent a clear statement to the contrary. James v. Prince George's County, 288 Md. 315, 335, 418 A.2d 1173 (1980). Similarly, where a public policy is as pervasive as Maryland's policy against sex discrimination, we presume the legislature does not intend to allow violations of that policy, absent some indication of a contrary intent. Brandon has provided no proof that the legislature intended to permit employers having less than fifteen employees to discriminate on the basis of sex. On the contrary, the language of the statute indicates that the legislature intended to prohibit sex discrimination by "any employer," consistent with the legislature's general intent to end sex discrimination in Maryland.

   The legislative history supports this interpretation. Article 49B was modeled on federal anti-discrimination legislation. Chapter 717 of the Acts of 1965; Weathersby, supra, 86 Md. App. at 545 n.2. In addition, [***17] the title of Chapter 493 of the Acts of 1973, which reduced from twenty-five to fifteen the number of employees in the definition of "employer," indicates that the Act was passed to "generally conform the State Fair Employment Practices Law to the [*633]1972 Amendments of Title VII, Federal Civil Rights Act of 1964." Therefore, in the absence of contrary legislative pronouncements on the Maryland law, we may turn to the legislative history of the federal law to discern the legislative intent behind the § 15(b) exemption. See Chappell v. Southern Maryland Hosp., 320 Md. 483, 494, 578 A.2d 766 (1990).
 
   Amici curiae, the Maryland Chamber of Commerce and the National Federation of Independent Business, correctly identify the concern of many Senators that expanding the scope of the federal law would subject small businesses to expensive lawsuits and potential bankruptcy. See, e.g., 118 Cong. Rec. 2387-89 (1972). They fail, however, to recognize the concern of other members of Congress that expanding the scope of the Act would overburden the Equal Employment Opportunity Commission (EEOC), the federal equivalent of the Human Relations Commission. The EEOC estimated that expanding Title[***18] VII to encompass employers with eight or more employees, as originally proposed, would yield a 25% increase in the EEOC's workload. H.R. Rep. No. 92-238, 92d Cong., 1st Sess. (1971), reprinted in 1972 U.S.C.C.A.N. 2137, 2142. The minority report of the House Committee on Education and Labor stated:
 
Additionally, we fear that, in view of the estimated 18-month to two-year backlog that currently exists at the EEOC, the intent of H.R. 1746 to expand the EEOC's jurisdiction will serve only to retard and frustrate the purposes and objectives of the Equal Employment Opportunity Act. . . .

   The massive expansion of jurisdiction and transferring of various programs to the EEOC at a time when the agency is struggling to control a burgeoning backlog of cases, will further hamstring efforts to bring meaningful and timely relief to persons aggrieved by discriminatory employment conditions. . . . The committee bill . . . will thrust the EEOC into an administrative quagmire which can only delay the attainment of a reasonable standard of operational efficiency that Congress should expect and demand." 
 
[*634] Id. at 2167, 2176. Therefore, the intent of at least some of the [***19]legislators was to exempt small employers from the administrative process under the Act to avoid overburdening the EEOC. It is this intent that is reflected in the language of §§ 14 and 15(b). If the legislature had intended to protect small employers from common law wrongful discharge lawsuits, it would have limited § 14 to employers "as defined in § 15" and it would have preempted the field of employment discrimination, which we have previously held it did not do. National Asphalt v. Prince Geo's Co., 292 Md. 75, 79, 437 A.2d 651 (1981).

   This interpretation is also supported by the case law. In Kerrigan v. Magnum Entertainment, Inc., 804 F. Supp. 733 (D.Md. 1992), the court, applying Maryland law, held that a wrongful discharge cause of action for sex discrimination is available against an employer [**615] exempted under § 15(b). In that case, the plaintiff alleged her employer discharged her because she was pregnant. The employer argued that there was a "deliberate legislative intent to avoid burdening small businesses with suits alleging discrimination in employment." Id. at 735. The court disagreed and said that "while art. 49B exempts small businesses from its burdensome[***20] administrative requirements, there is no reason to construe art. 49B as exempting small businesses from its anti-discrimination policy." Id. at 736. Likewise, in Collins v. Rizkana, 73 Ohio St. 3d 65, 652 N.E.2d 653, 660-61 (1995), the Supreme Court of Ohio upheld a wrongful discharge claim based on the public policy in a statute prohibiting discrimination in employment from which the employer was exempt. n4 The legislature's intent, the court said, was "to exempt small businesses from the burdens of [the Chapter], not from its antidiscrimination policy." Id. at 660-61. And, in Bennett v. Hardy, 113 Wash. 2d 912, 784 P.2d 1258 (1990), the Supreme Court of Washington held that a cause of action for wrongful discharge [*635]was available based on a statute prohibiting age discrimination but providing no remedy. The state's anti-discrimination statute, it said, further supported the court's result. Despite the fact that the latter statute exempted the employer from its administrative procedures, it nonetheless, indicated "the Legislature's recognition that retaliatory discharge is an unfair employment practice." Id. at 1264. n5 

n4 While the Collins decision rested on multiple sources of public policy, the court found each source to be independently sufficient to support the cause of action. Collins, supra, 652 N.E.2d 653.

[***21] 

n5 The California Supreme Court, in Jennings v. Marralle, 8 Cal. 4th 121, 32 Cal. Rptr. 2d 275, 876 P.2d 1074 (1994), held that the state statute prohibiting age discrimination did not provide a "fundamental policy" to support a wrongful discharge suit because the small employer exemption was inseparable from the statement of policy and because no other statute or constitutional provision prohibited age discrimination. A lower California court, in a sex discrimination case, Badih v. Myers, 36 Cal. App. 4th 1289, 43 Cal. Rptr. 2d 229 (1995), relied on the state constitution to provide the fundamental policy to support the plaintiff's cause of action.

   The alternative interpretation of the statute advanced by Brandon flies in the face of the view taken by the United States District Court for the District of Maryland which, applying Maryland law, aptly characterized the employer's interpretation: "Bluntly put, [the employer] argues that the General Assembly intended to grant small businesses in Maryland a license to discriminate [on the basis of sex] against their employees with impunity." [***22] Kerrigan, supra, 804 F. Supp. at 735. Finding no merit in such a contention, Kerrigan relied on our decision in National Asphalt, supra, 292 Md. 75, where we held that §§ 14-18 of Art. 49B did not preempt local laws on the same subject. National Asphalt was exempted from the state law because it had less than fifteen employees, but it was covered by a similar county ordinance. Id. at 76-77. When an employee filed a sex discrimination complaint with the Prince George's County Human Relations Commission, National Asphalt sought a declaratory judgment that the county law was preempted by the state law. We held that the county law was not preempted because Article 49B does not comprehensively cover the entire field of employment discrimination. Id. at [*636]77-78. "Employers with less than fifteen employees are not permitted by the state statute to discriminate in their employment practices; they simply are not covered." Id. at 79. In order for there to have been a conflict between the state and county laws, the state law would have to permit discrimination by small employers. Since it did not, there was no conflict. Id. at 79 n.3.

   Similarly, in Coalition [***23]  v. Annapolis Lodge, 333 Md. 359, 635 A.2d 412 (1994), Judge Eldridge, for the Court, held that the City of Annapolis had the authority to enact an ordinance prohibiting discrimination by certain clubs that were exempted from the state public accommodations law. The state statute, we said, "does not permit discrimination by private clubs. It simply excludes private clubs from the coverage of state law. Instead of constituting an affirmative authorization to discriminate . . . [the exemption] [**616] merely removes private clubs from the scope of the state public accommodations law." Id. at 379. Thus, Brandon's contention that small employers are exempted from the public policy of § 14 is contrary to our prior holdings that § 14 and a similar statute do not authorize discrimination by exempted businesses.

   Makovi v. Sherwin-Williams Co., 316 Md. 603, 561 A.2d 179 (1989), and Chappell, supra, 320 Md. 483, do not compel a different result. In Makovi, after receiving an unfavorable ruling from the EEOC, the plaintiff filed a suit for wrongful discharge based on sex discrimination. We held that the common law cause of action was not available. Because the employer had[***24] a sufficient number of employees, the statute provided the plaintiff with both a right and a remedy. "Thus, the generally accepted reason for recognizing the tort, that of vindicating an otherwise civilly unremedied public policy violation, [did] not apply." Makovi, supra, 316 Md. at 626. A remedy was also available to the plaintiff in Chappell, supra, 320 Md. 483. By contrast, in this case, the state statute does not provide Molesworth with [*637] any remedy. n6 Thus, the purpose of the wrongful discharge tort, to provide a remedy for otherwise unremedied violations of public policy, is present here and Makovi and Chappell are inapposite.

n6 We do not decide whether a remedy provided by county ordinance may preempt the availability of a common law cause of action because the issue was not properly raised and briefed below.

   C

   We hold, therefore, that Art. 49B, § 14 provides a clear statement of public policy sufficient to support a common law cause of action for wrongful discharge against[***25] an employer exempted by Art. 49B, § 15(b). Section 15(b) merely excludes small employers from the administrative process of the Act, but does not exclude them from the policy announced in § 14. The General Assembly did not intend to permit small employers to discriminate against their employees, but rather intended to promote a policy of ending sex discrimination statewide.

   III.

   Brandon requested that the following instruction be read to the jury:
 
In cases where the hirer and firer are the same person, there is a strong inference that the discharge from employment was not due to sex discrimination, because it does not make sense that someone would hire a member of a class he does not like, only to discharge that person once he or she is on the job. Ordinarily a plaintiff alleging sex discrimination will not be able to rebut this inference because of its compelling nature.

   It is undisputed that the person who hired Dr. Molesworth -- Defendants Randall Brandon and Defendant Corporation -- is the same person who discontinued Plaintiff's employment, knowing Plaintiff to be a female. You are therefore instructed to apply this inference (that Plaintiff's [*638] noncontinuance [***26]of employment was for reasons other than sex discrimination) in evaluating the evidence in this case.
 
Whether the trial court erred in refusing to so instruct the jury, as the intermediate appellate court held, is the second issue before us. We hold that the trial court properly denied the requested instruction because under federal and state law it is not applicable in a case, as here, involving direct evidence of discrimination. In addition, the instruction was not applicable to the facts of this case and the area of law was fairly covered by the instructions given.

   A

   To elucidate our discussion of the "same actor inference" in the requested jury instruction, we must first outline the order and allocation of the burden of proof in a case arising under Title VII of the Civil Rights Act of 1964, 78 Stat. 253, 42 U.S.C. § 2000e et seq. (Title VII). n7 The United States Supreme [**617]Court, in McDonnell Douglas v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), said that where the plaintiff/employee seeks to prove discrimination without the benefit of direct evidence, the employee must first make out a prima facie case of discrimination. Id. at 802. The elements [***27]of the prima facie case depend upon the facts of the case. Id. at 802 n.13. The burden then shifts "to the employer to articulate some legitimate, nondiscriminatory reason for the employee's rejection." Id. at 802. Finally, "the plaintiff must then have an opportunity to prove by a preponderance of the evidence that [*639] the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination." Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981); McDonnell Douglas, supra, 411 U.S. at 804. The employee retains the ultimate burden of proving that the discharge was motivated by discrimination. Burdine, supra, 450 U.S. at 253; Saint Mary's Honor Center v. Hicks, 509 U.S. 502, 113 S. Ct. 2742, 2747, 125 L. Ed. 2d 407 (1993).

n7 Molesworth argues that we ought not apply Title VII precedents in common law wrongful discharge cases because to do so would be to engraft an entire body of federal law onto a state common law tort action. Because the sufficiency of Molesworth's evidence was not challenged on appeal to this court, we do not decide whether the United States Supreme Court's Title VII rulings provide the proper burdens of proof in Adler cases. The Title VII and ADEA (Age Discrimination in Employment Act) cases we discuss are relevant because the "same actor inference" has only been applied in cases arising under those statutes. In addition, while we do not consider those cases controlling in a common law wrongful discharge suit, they may be instructive.

[***28]

   B

   The requested jury instruction originated in Proud v. Stone, 945 F.2d 796 (4th Cir. 1991). In that case, Warren Proud was fired from his job as an accountant in the United States Army after less than five months on the job. Although he had no direct evidence of discrimination, he filed suit under the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (ADEA), alleging the Army discharged him because of his age. The Court of Appeals affirmed the district court's dismissal at the close of the plaintiff's case. Id. at 797. It focused on the fact that the person who fired Proud was the same person who hired him "less than six months earlier with full knowledge of his age." Id.
 
Therefore, in cases where the hirer and the firer are the same individual and the termination of employment occurs within a relatively short time span following the hiring, a strong inference exists that discrimination was not a determining factor for the adverse action taken by the employer.
 
Id. This inference, the court said, becomes relevant at the third stage of the McDonnell Douglas proof scheme, which is also used in ADEA cases, and "creates a strong inference[***29] that the employer's stated reason for acting against the employee is not pretextual." Id. at 798.

   The United States Court of Appeals for the Eighth Circuit adopted the reasoning of Proud in Lowe v. J.B. Hunt Transport, Inc., 963 F.2d 173 (8th Cir. 1992). Lowe, like Proud, involved an ADEA claim unsupported by direct evidence and, [*640] like Proud, the people who fired Lowe also hired him. The trial court directed a verdict for the employer at the close of the plaintiff's evidence and the Court of Appeals affirmed. Id. at 174. While the plaintiff had made out a prima facie case, his evidence was insufficient to prove that the employer's reason for the discharge was pretextual. Id. at 175. The court found it "simply incredible, in light of the weakness of plaintiff's evidence otherwise, that the company officials who hired him at age fifty-one had suddenly developed an aversion to older people less than two years later." Id.

   The Sixth Circuit approved the use of a jury instruction on the "same actor inference" in Buhrmaster v. Overnite Transportation Co., 61 F.3d 461 (6th Cir. 1995). Mary Buhrmaster sued her former employer under Title VII alleging [***30]that sex discrimination motivated the decision to fire her after seven and a half years of work. As was the case in Lowe and Proud, Buhrmaster had no direct evidence and the same person had hired and [**618] fired her. Id. at 462, 463. The district court instructed the jury:
 
When the individual who hires a person is the same person who fires an employee, there is a strong inference that discrimination did not motivate the employment decision. You may, but are not required to, infer from this evidence that Mr. Littleton's decision to terminate Ms. Buhrmaster's employment was not motivated by sex. 
 
Id. at 463. The Court of Appeals ruled that the instruction was applicable in a sex discrimination case and that a short period of time is not an essential element of the inference where the plaintiffs class does not change. Id. at 464. 

   C

   We must determine whether the trial court erred in refusing to instruct the jury on the "same actor inference." Parties are "entitled to have the jury fairly instructed upon their theory of the case." Aleshire v. State, 225 Md. 355, 370, 170 A.2d 758 (1961); see also Kennelly v. Burgess, 337 Md. 562, 574, 654 A.2d 1335[***31] (1995). The court is not required, [*641] however, to read a requested instruction "if the matter is fairly covered by instructions actually given." Maryland Rule 2-520(c); Kennelly, supra, 337 Md. at 577. Therefore, an appellate court reviewing the denial of a requested jury instruction must determine:
 
whether the requested instruction was a correct exposition of the law, whether that law was applicable in light of the evidence before the jury, and finally whether the substance of the requested instruction was fairly covered by the instruction actually given. 
 
Wegad v. Howard Street Jewelers, 326 Md. 409, 414, 605 A.2d 123 (1992) (quoted in Holman v. Kelly Catering, Inc., 334 Md. 480, 495-96, 639 A.2d 701 (1994)).

   Under both federal and state law, the "same actor inference" is not applicable in this case because Molesworth presented direct evidence of discrimination. Molesworth testified that when she asked whether she was being fired because she is a woman, Palmer replied, "Yes, that's part of it," and Brandon "nodded in agreement." Brandon's nod was admissible hearsay under Maryland Rule 5-803(a)(2) because it "manifested an adoption" of Palmer's statement. [***32] Brandon, supra, 104 Md. App. at 198. Thus, the nod was a communication by Brandon that part of the reason he fired Molesworth was because she is a woman. Unlike "stray remarks in the workplace," "statements by nondecisionmakers," and "statements by decisionmakers unrelated to the decisional process itself," Brandon's nod was a statement by a decisionmaker relating to the decision itself that tends to show discriminatory intent. Price Waterhouse v. Hopkins, 490 U.S. 228, 277, 109 S. Ct. 1775, 104 L. Ed. 2d 268 (1989) (O'Connor, J., concurring). Such a statement is direct evidence of discrimination. Clark v. Coats & Clark, Inc., 990 F.2d 1217, 1226 (11th Cir. 1993); E.E.O.C. v. Alton Packaging Corp., 901 F.2d 920, 924 (11th Cir. 1990); see also U.S. Postal Service v. Aikens, 460 U.S. 711, 716, 103 S. Ct. 1478, 75 L. Ed. 2d 403 (1983) ("There will seldom be 'eyewitness' testimony as to the employer's mental processes."); cf. McCormick on Evidence [*642] § 185 (John William Strong ed., 4th ed. 1992) [hereinafter McCormick].

   The "same actor inference" is only applicable in cases following the McDonnell Douglas proof scheme. See, e.g., Buhrmaster,[***33] supra, 61 F.3d 461; LeBlanc v. Great American Ins. Co., 6 F.3d 836 (1st Cir. 1993), cert. denied, 128 L. Ed. 2d 72, 114 S. Ct. 1398 (1994); Lowe, supra, 963 F.2d 173; Proud, supra, 945 F.2d 796. The McDonnell Douglas proof scheme, however, is inapplicable where the plaintiff presents direct evidence of discrimination. Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121, 105 S. Ct. 613, 83 L. Ed. 2d 523 (1985); Alton Packaging, supra, 901 F.2d at 923; McAdoo v. Toll, 615 F. Supp. 1309, 1311 (D.Md. 1985). Therefore, the "same actor inference" is not applicable in cases involving direct evidence. The United States District Court for the Southern District of Iowa, in an ADEA case, denied the defendant's motion for summary judgment because the plaintiff had direct evidence and there was a question of fact as to whether the same person hired and fired the employee. [**619] Holmes v. Marriott Corp., 831 F. Supp. 691, 702 (S.D. Iowa 1993). The plaintiff's evidence included testimony that his supervisor said the plaintiff was "senile," "getting too old to cut it," and "not as young as you used to be." Id. at 704. This direct evidence precluded the court from [***34]granting the defendant's motion for summary judgment. Id. at 703. Research has revealed no case in which a court applied the "same actor inference" where the plaintiff relied on direct evidence. Thus, because Molesworth presented direct evidence of discrimination, under federal Title VII law, the "same actor inference" would not be applicable in this case.

   Maryland law of evidence also dictates that the "same actor inference" is not applicable in this case. We have referred to the requested instruction as an "inference" because other courts generally do so. E.g., Buhrmaster, supra, 61 F.3d at 463. Actually, the instruction, as requested by Brandon, is a presumption because it shifts the burden of producing evidence. Tyndall v. National Educ. Centers, 31 F.3d 209, 215 (4th Cir. 1994) (Proud creates a "strong presumption of nondiscrimination."); [*643] cf. McCormick § 342. After the plaintiff presents evidence sufficient to survive a motion to dismiss, where the same person hired and fired the plaintiff, the presumption dictates that the discharge was not motivated by discrimination. The plaintiff, then, must present further evidence that the discharge was due[***35] to discrimination or risk a directed verdict or a jury finding "that Plaintiff's noncontinuance of employment was for reasons other than sex discrimination." McCormick § 342.

   This presumption is inapplicable under Maryland law in this case because Molesworth presented direct evidence of discrimination. For example, in Dover Elevator Co. v. Swann, 334 Md. 231, 638 A.2d 762 (1994), we held that the doctrine of res ipsa loquitur was not applicable where the plaintiff had produced evidence sufficient to prove negligence. Res ipsa was intended to allow a plaintiff to go forward with a case despite the inability to prove negligence. Id. at 236-37. Thus, where a plaintiff is able to prove negligence, the doctrine is unnecessary. Id. at 238. See also [***36]  Maszczenski v. Myers, 212 Md. 346, 129 A.2d 109 (1957). Molesworth's testimony is sufficient to prove discriminatory intent. The presence of direct evidence in this case, therefore, makes a presumption regarding discriminatory intent inapplicable.

   In addition, the facts of this case do not warrant the creation of a presumption. McCormick summarizes the three primary reasons courts create presumptions.
 
Just as the burdens of proof are sometimes allocated for reasons of fairness, some presumptions are created to correct an imbalance resulting from one party's superior access to the proof. . . . A presumption may also be created to avoid an impasse, to reach some result, even though it is an arbitrary one. . . . Generally, however, the most important consideration in the creation of presumptions is probability. Most presumptions come into existence primarily because the judges have believed that proof of fact B renders the inference of the existence of fact A so probable that it is [*644] sensible and timesaving to assume the truth of fact A until the adversary disproves it.
 
 Id. at § 343.

   None of these purposes is served in this case by the requested instruction. [***37]First, both parties have equal access to the proof. Both Molesworth and Brandon were present at the meeting of July 13, 1990 and both testified regarding Brandon's alleged discriminatory action. Second, there is no impasse we must arbitrarily resolve. A jury is fully capable of evaluating testimony presented at trial. Third, where the same person hires and fires an employee it is not "so probable" that the discharge was not motivated by discrimination that we ought to assume it is so in every case. It is possible for an employer to hire someone only to fire that person later because of their class membership. For example, an employer may develop an aversion to a particular class or an employee may change their class, most obviously age or marital status. Two federal appeals courts rejected the "same actor inference" in ADEA cases because the employer might have hired the employee to work while a younger person was being "groomed" [**620] for the job. Waldron v. SL Industries, Inc., 56 F.3d 491, 495 n.6 (3d Cir. 1995); Johnson v. Group Health Plan, Inc., 994 F.2d 543, 548 (8th Cir. 1993). Here, it is possible that Brandon fired Molesworth because his clients did not want a female veterinarian. [***38] The fact that the discriminatory animus may have originated in the clients makes Brandon no less culpable for discharging Molesworth because of her sex. Cf. 29 C.F.R. § 1604.2(a)(1)(iii) (1994); Diaz v. Pan Am World Airways, Inc., 442 F.2d 385 (5th Cir. 1971), cert. denied, 404 U.S. 950, 30 L. Ed. 2d 267, 92 S. Ct. 275 (1971). It does, however, provide an explanation for his actions that is contrary to the presumption. Thus, the probability that the discharge was not due to discrimination is not so great as to warrant the creation of a presumption based on the facts before us.

   Finally, the trial court properly refused to grant the requested instruction, because the area of law was adequately covered by other instructions. The court instructed the jury [*645] that the plaintiff had to prove by a preponderance of the evidence that the defendant intentionally discriminated against her. The court continued: 
 
It's not whether or not the trainers discriminated against her. . . . He is not liable for what they did. It would . . . have to be that the Defendant discriminated against her.

   . . . To find that the Plaintiff was wrongfully discharged, you must find that her termination was motivated by sex[***39] discrimination. In other words, the Plaintiff was fired because she was a female.

   . . . The Plaintiff must prove the Defendant intentionally discriminated [against] the Plaintiff. That is, but for n8 the Plaintiff's gender the Defendant would not have made the decision not to continue the Plaintiff's employment.

n8 The plurality decision in Price Waterhouse, supra, 490 U.S. at 240, ruled that "to construe the words 'because of' as a colloquial shorthand for 'but-for causation,' . . . is to misunderstand them."
 
. . . Title VII meant to condemn even those decisions based on a mixture of legitimate and illegitimate considerations. When, therefore, an employer considers both gender and legitimate factors at the time of making a decision, that decision was "because of" sex and the other, legitimate considerations -- even if we may say later, in the context of litigation, that the decision would have been the same if gender had not been taken into account.
 
Id. at 241.

 
These[***40] instructions adequately describe the burdens of proof in a sex discrimination case. Thus, even if the requested instruction was legally correct and factually applicable, and would not confuse the jury, the judge may have refused to grant it. Kennelly, supra, 337 Md. at 577; Dover Elevator, supra, 334 Md. at 258.

   Brandon may still have argued to the jury that because he both hired and fired Molesworth they may infer that the discharge was not motivated by discrimination. Our refusal to adopt the "same actor inference" as a presumption in this case does not preclude Brandon from making this argument to the jury. As the court said in Waldron, supra, 56 F.3d at 496 n.6:
 
[*646] Where, as in Proud, the hirer and firer are the same and the discharge occurred soon after the plaintiff was hired, the defendant may of course argue to the factfinder that it should not find discrimination. But this is simply evidence like any other and should not be accorded any presumptive value.
 
Waldron, supra, 56 F.3d at 496 n.6 (quoting brief of EEOC as amicus curiae). The trial court's general instructions also do not prevent Brandon from making more precise arguments[***41] to the jury. Dover Elevator, supra, 334 Md. at 259; Eagle-Picher v. Balbos, 326 Md. 179, 233, 604 A.2d 445 (1992); Aronstamn v. Coffey, 259 Md. 47, 51, 267 A.2d 741 (1970).

   D

   We hold, therefore, that the trial court properly refused to instruct the jury that where the same person hires and fires the plaintiff they must infer that the discharge was not motivated by sex discrimination. Such an instruction is not applicable, under federal Title VII law, in a case involving direct evidence of discrimination. Likewise, under Maryland law, the instruction constitutes [**621] a presumption which is inappropriate where direct evidence is presented. In addition, none of the purposes for creating presumptions are present on the facts of this case and the area of law was adequately covered by the instructions actually given. Nonetheless, the defendant was free to argue to the jury that since the same person hired and fired the defendant they may infer that the discharge was not due to sex discrimination.

 
JUDGMENT AFFIRMED IN PART AND REVERSED IN PART; CASE REMANDED TO THE COURT OF SPECIAL APPEALS WITH DIRECTIONS TO AFFIRM THE JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL [***42]  COUNTY. COSTS IN THIS COURT AND THE COURT OF SPECIAL APPEALS TO BE PAID BY BRANDON. 

                       
ENTERPRISE LEASING COMPANY v. ALLSTATE INSURANCE COMPANY 
No. 33, September Term, 1995
 
COURT OF APPEALS OF MARYLAND
 
341 Md. 541; 671 A.2d 509; 1996 Md. LEXIS 16

 February  12, 1996, Filed

   PRIOR HISTORY: [***1]

   Appeal from the Circuit Court for  Anne Arundel  County. Eugene M. Lerner, JUDGE.

DISPOSITION: JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT.

CORE TERMS:  lessee, permission, rental agreement, permittee, rental, coverage, motor vehicle, unauthorized, lessor, drive, rented, public policy, plain language, driving, compulsory insurance, insurance coverage, security required, motor vehicles, invalid, insured, leased, liability coverage, innocent, insurance policy, rented vehicle, third parties, third party, large class, registration, claimants

COUNSEL: ARGUED BY Stephen E. Marshall (Goodell, DeVries, Leech & Gray, on brief) of Baltimore, MD, FOR APPELLANT.
 
ARGUED BY John R. Greene (Cohen, Bennett & Greene, P.A., on brief) of Annapolis, MD.

JUDGES: Murphy, C.J., Eldridge, Rodowsky, Chasanow, Karwacki, Bell, Raker, JJ.

OPINIONBY: RAKER

OPINION:  
[*542] [**510] Opinion by Raker, J.
 
The dispute in this case is between Enterprise Leasing Company, a self-insured lessor of motor vehicles, and Allstate Insurance Company, the automobile liability insurer of a lessee, [*543] over who must provide primary liability coverage for a third party claim arising out of an automobile accident involving the leased Enterprise vehicle. The precise issue is whether the lessor of a motor vehicle is relieved of financial responsibility[***2] for third party claims resulting from the negligent operation of its rental vehicle by a permittee n1 when the vehicle's operation is in violation of the express terms of the rental agreement. We shall hold that the required security mandated by Maryland Code (1977, 1992 Repl. Vol., 1995 Supp.) § 18-102 of the Transportation Article n2 covers operators of leased vehicles driving these vehicles with the permission of the lessee even when the [**511] lessee violated the terms of the rental agreement.

n1 For the sake of clarity, we will hereinafter refer to all persons who operate rental vehicles with the permission of either the lessor or the lessee as "permittees." We will refer to all persons who operate rental vehicles with only the permission of the lessee given in violation of the rental agreement as "unauthorized permittees." 

n2 Unless otherwise indicated, all following statutory citations are to the Transportation Article of the Maryland Code (1977, 1992 Repl. Vol., 1995 Supp.). 

   Title 17 of the Maryland statutory[***3] insurance scheme requires every owner of a registered motor vehicle to maintain liability coverage for personal injury of $20,000 for any one person, $40,000 for any accident, and § 10,000 for property damage. § 17-103(b); National Grange Mut. Ins. v. Pinkney, 284 Md. 694, 399 A.2d 877 (1979). This is known as the "required security." § 17-101.
 
Under Title 18, entitled "For-Rent Vehicles," the Motor Vehicle Administration may not register any motor vehicle to be rented until the owner certifies that it has provided security for the vehicle equivalent to that required in Title 17. The security required for For-Rent Vehicles covers the "owner of the vehicle and each person driving or using the vehicle with the permission of the owner or lessee," notwithstanding any provision of the rental agreement to the contrary. § 18-102. n3 

n3 Section 18-102. Certification of security prerequisite to registration.

   (a) In general.-- The Administration may not register any motor vehicle, trailer, or semitrailer to be rented until the owner of the vehicle certifies to the satisfaction of the Administration that he has security for the vehicle in the same form and providing for the same minimum benefits as the security required by Title 17 of this article for motor vehicles.

   (b) Persons to be covered by security. --Notwithstanding any provision of the rental agreement to the contrary, the security required under this section shall cover the owner of the vehicle and each person driving or using the vehicle with the permission of the owner or lessee.

   (c)  Suspension of registration. -- If the Administration finds that the vehicle owner has failed or is unable to maintain the required security, the Administration shall suspend the registration of the vehicle.

[***4]

   [*544] Section 18-106 establishes that if person rents a motor vehicle to another under a private agreement that the lessee shall not permit another person to drive the rented vehicle, n4 no other person may drive the rented vehicle without the consent of the lessor or its agent. In this case, we must decide what effect, if any, § 18-106 has on the operation of § 18-102(b).

n4 Section 18-106.  Unauthorized use of rented motor vehicle . 

   (a) Lessees permitting other persons to drive rented motor vehicles. -- If a person rents a motor a vehicle under an agreement not to permit another person to drive the vehicle the person may not permit any other person to drive the rented motor vehicle.

   (b) Rental agreements prohibiting other persons from driving vehicles. -- If a person rents a motor vehicle under an agreement not to permit another person drive the vehicle no other person may drive the rented motor vehicle without the consent of the lessor or his agent.

   Appellee Allstate sought a[***5] declaratory judgment in the Circuit Court for Anne Arundel County that, based on § 18-102, Enterprise is obligated to provide minimum security in the amount of $20,000 per person/ $40,000 per occurrence for bodily injury arising out of an accident that occurred on August 11, 1991. n5 Allstate maintained that because the driver [*545] had the lessee's express permission to operate the rental vehicle, Enterprise had the primary responsibility for providing the required security to the extent of the statutory mandatory minimum. 

n5 Initially, Allstate also sought a declaratory judgment holding Travelers Insurance Companies (Travelers) responsible for the primary coverage resulting from this automobile accident on the theory that Enterprise maintained a policy of insurance with Travelers to provide liability coverage for those persons operating their rented vehicles with permission. Travelers, in a motion for summary judgment, denied providing insurance coverage for the lessees of cars owned by Enterprise. Although the trial court has never ruled on this motion, the motion was unopposed and it appears that all parties agree that Travelers did not provide insurance coverage for the lessees of automobiles owned by Enterprise and that the responsibility for providing the security falls upon Enterprise, as self-insurer.

[***6]

   The circuit court granted summary judgment in favor of
 
Allstate, declaring 
 
Enterprise Leasing Company is governed by 18-102 and is required to provide coverage to Grace Suzanne Sonde and David Sonde in the case brought by Stephany Witt, C-93-1905, to the extent of $20,000.00 per person/$40,000. per occurrence.
 
The court entered final judgment in favor of Allstate. See Maryland Rule 2-602(b). Enterprise appealed to the Court of Special Appeals, and we granted a writ of certiorari [**512] on our own motion. We shall affirm the judgment of the circuit court.

   I.

   Appellant Enterprise is a self-insured entity that is in the business of leasing automobiles to the public. Enterprise leased a Ford Taurus GL automobile to Grace Sonde on August 8, 1991. The rental agreement provided that it is a violation of the contract if the car is used or driven by any person under the age of 21 without the owner's written permission or by any person other than the renter without written consent of the owner. When Ms. Sonde signed the rental agreement, she specifically declined to request permission for a person other than herself to drive the vehicle.

   On August 11, 1991, Ms. Sonde[***7] allowed her seventeen year-old son, David, to operate the Enterprise rental vehicle. David allegedly failed to maintain control of the vehicle and collided with a vehicle in which Stephany Witt was a passenger. [*546] Stephany Witt filed suit against David Sonde and Grace Sonde in the Circuit Court for Anne Arundel County seeking compensation for injuries she suffered in the accident. n6 

n6 On April 13, 1994, the Circuit Court for Anne Arundel County stayed this lawsuit pending resolution of the present case.

   Appellee Allstate is an insurance carrier. On the day of the accident, Allstate had in effect an insurance policy that provided liability coverage for both Grace and David Sonde. The Sondes submitted Ms. Witt's claim to Allstate. Allstate submitted the claim to Enterprise, claiming that Enterprise was required to provide primary insurance coverage for the Witt lawsuit, up to the statutory minimum coverage required by Maryland law.

   Enterprise denied responsibility for primary coverage because, under the terms[***8] of the rental agreement and § 18-106, Grace Sonde was not authorized to permit David Sonde to drive the rental vehicle. Enterprise maintained that David Sonde was an unauthorized driver and, therefore, not a covered operator. Enterprise contended that § 18-106 defines permission as used in § 18-102 and that the security required by § 18-102 does not extend to persons operating the Enterprise vehicle with invalid and illegal permission in violation of § 18-106.

   Allstate asserts that, under § 18-102(b), if the operator of a rental vehicle has permission to operate the vehicle, then the operator is covered for the damages to a third party under the lessor's required security. Allstate contends that, under the plain language of § 18-102(b), because David Sonde operated the rental vehicle with the express permission of the lessee, he had "permission" to operate the rental vehicle, notwithstanding the provisions of § 18-106. Therefore, because he had permission to operate the vehicle, he is covered under the Enterprise required security for the damages arising out of the Witt accident.

   In this appeal, Enterprise and Allstate disagree as to whether § 18-106 defines "permission" [***9] as this term is used in [*547] § 18-102(b). Enterprise contends that § 18-106 defines the term, while Allstate contends that § 18-106 does not.

   II.

   The cardinal rule of statutory construction is to discern and carry out the intent of the legislature. Dept. of Corrections v. Howard, 339 Md. 357, 369, 663 A.2d 74, 79 (1995). If the "statutory language is plain and unambiguous, and expresses a definite meaning consonant with the statute's purpose, courts must not insert or delete words to make a statute express an intention different from its clear meaning." Pennsylvania Nat'l Mut. v. Gartelman, 288 Md. 151, 159, 416 A.2d 734, 738 (1980). Where the Legislature has mandated insurance coverage, this Court will not create exclusions that are not specifically set out in the statute. Larimore v. American Ins. Co., 314 Md. 617, 622, 552 A.2d 889, 891 (1989); Jennings v. Government Employees Ins., 302 Md. 352, 358-59, 488 A.2d 166, 169 (1985). Employing these [**513] principles of statutory construction, we address the issue before the Court.
 
We believe that the plain language of § 18-102(b) indicates that an unauthorized permittee cannot be excluded from coverage under the required[***10] security, even if the rental vehicle is operated without the lessor's consent and in violation of the rental agreement. We also believe that the Legislature did not intend for § 18-106 to have any effect on the coverage required by § 18-102(b). We base our conclusion on two phrases contained in § 18-102(b).

   The first significant phrase is the initial phrase of § 18-102(b), which reads, "notwithstanding any provision of the rental agreement to the contrary." This plain language indicates that no term or condition of a private rental agreement may interfere with the coverage required by § 18-102(b). The import of the initial phrase of § 18-102(b) for this case becomes clear when it is considered in relation to § 18-106 and the rental agreement between Ms. Sonde and Enterprise. The plain language of § 18-106 indicates that its application depends on the terms of rental agreement. Section 18-106 [*548] becomes operative only if a rental agreement contains a provision that either restricts the lessee from giving permission to others to operate the rental vehicle or prohibits a person other than the lessee from operating the rental vehicle without the lessor's permission. Section 18-106[***11] does not define the term "permission".

   In this case, the rental agreement states that it is a violation of the agreement for anyone other than Ms. Sonde or anyone who is under the age of 21 to operate the rental vehicle without Enterprise's written permission. Section 18-106 enforces this provision of the rental agreement, and, under § 27-101, a violation of § 18-106 is a misdemeanor. Nevertheless, for the purposes of applying § 18-102(b), we read the rental agreement as if it did not include this provision. Therefore, neither the rental agreement nor § 18-106 has any effect on the lessor's obligation under § 18-102(b) to provide the required security.

   The second significant phrase in § 18-102(b) is the final phrase, which reads, "with the permission of the owner or lessee." We believe that by using the disjunctive language "owner or lessee," the Legislature intended to extend coverage under the required security to all permittees of both the lessee and the lessor. This includes unauthorized permittees.

   Had the Legislature intended to exclude coverage for unauthorized permittees, we believe it would have used the conjunctive "and" rather than the disjunctive "or." The use[***12] of "and" as the connector between the terms "owner" and "lessee" would have indicated that the permission of both would be required for a permittee who operated the rental vehicle to be covered under the required security. But the use of "or" indicates that the permission of either the owner or lessee is sufficient to bring a permittee under the coverage of the required security.
 
We hold that § 18-102(b) requires the lessor to cover damages to third parties under its required security where any permittee, authorized or unauthorized, drives or uses a rental vehicle. Section 18-106 provides no exclusion from this [*549] coverage for unauthorized permittees. n7 Enterprise could not "contract away its statutorily-imposed risk by inserting in its rental agreement restrictive clauses that narrow the statutory requirements." Consol. Enters. Inc. v. Schwindt, 172 Ariz. 35, 833 P.2d 706, 710 (1992). This is made clear by the plain language of the statute. 

n7 One commentator who examined the interplay between § 18-102 and § 18-106 and the history of each provision reached the same conclusion that we reach today. See A. Janquitto, Maryland Motor Vehicle Insurance, § 4.7, at 100-05 (1992). He concluded that a review of the history of § 18-106 reveals that the Legislature "did not intend for the section to be used by an insurer or an owner as a means of circumventing the indemnification obligation inherent in the financial responsibility provision." Id. at 105. Further, he concluded that the 1970 removal of the provision that criminalized a lessee's giving permission to another to operate a rental vehicle in violation of a rental agreement from the precursor to § 18-102 indicated that the "Legislature considered the requirement that the financial security extend to owners, lessees, and permissive users to be separate from the prohibition against allowing persons to use the rented vehicle without permission of the owner." Id.

[***13]

   [**514] Our conclusion is further supported by the fact that the Maryland compulsory insurance law does not include a specific exclusion from coverage under the required security for unauthorized permittees. We think that if the General Assembly had intended to exclude coverage for unauthorized permittees, it would have made such an exclusion an explicit part of the law.

   The purpose of Maryland's compulsory insurance law is to ensure that those who own and operate motor vehicles registered in the State are "financially able to pay compensation for damages resulting from motor vehicle accidents." Gartleman, 288 Md. at 154, 416 A.2d at 736; see National Grange Mut. Ins. v. Pinkney, 284 Md. 694, 704, 399 A.2d 877, 882 (1979). The public policy behind the law is to give innocent third parties a source of private sector insurance funds from which to obtain compensation for their injuries. See Van Horn v. Atlantic Mutual, 334 Md. 669, 680, 641 A.2d 195, 200 (1994); Larimore, 314 Md. at 625, 552 A.2d at 892; Jennings, 302 Md. at 357-58, 488 A.2d at 168-69; see also American Tours, Inc. v. Liberty Mut. Ins. Co., 315 N.C. 341, [*550] 338 S.E.2d 92 (1986) (holding "it is preferable[***14] to provide coverage for innocent motorists rather than to deny such coverage because of the violation"). 

   Section 18-102(b) effectuates this public policy. It mandates coverage under the required security for "the owner of the vehicle and each person driving or using the vehicle with the permission of the owner or lessee." Its purpose is, in part, to protect "the public generally and its members injured by the negligent operation of the insured [motor vehicle] on a public highway." Couch Cyclopedia of Insurance Law, § 45:293, at 617-18 (2d ed. 1981). By extending coverage under the required security to the permittees of the lessee, § 18-102(b) ensures that the injured innocent victims of accidents involving these permittees will have a source of private insurance funds from which to obtain compensation.

   In the past, we have invalidated insurance policy exclusion clauses that are inconsistent with the public policy of this State. See Larimore, 314 Md. at 622, 626, 552 A.2d at 891, 893 (holding "fellow employee" exclusion invalid as inconsistent with public policy); Jennings, 302 Md. at 356-60, 488 A.2d at 168-71 (holding "household" exclusion invalid because inconsistent[***15] with public policy); Gartleman, 288 Md. at 156-57, 161, 416 A.2d at 737, 739 (holding that exclusion from personal injury protection (PIP) coverage for "an insured who is injured while occupying an uninsured motor vehicle owned by a named insured" and exclusion from uninsured motorist (UM) coverage for "an insured who is injured while occupying an uninsured highway vehicle owned by an insured other than himself" were invalid because they conflicted with the compulsory insurance law). In Larimore, we considered the validity of a motor vehicle insurance policy exclusion for fellow employees. In reasoning equally applicable here, we observed that
  
To uphold the fellow employee exclusion in motor vehicle insurance policies could result in a large class of claimants being without liability insurance coverage and in a large class of uninsured motorists.
 
[*551] Id. at 625, 552 A.2d at 892. Similarly, we find that an exclusion for unauthorized permittees could result in a large class of injured claimants for whom insurance coverage would be unavailable.

   For example, it is foreseeable that unauthorized permittees will drive rental vehicles and that they will be involved[***16] in accidents. See Motor Vehicle Accident Indem. Corp. v. Continental Nat'l Am. Group Co., 35 N.Y.2d 260, 360 N.Y.S.2d 859, 319 N.E.2d 182, 184 (1974) (noting that the lessor, knew or should have known, that "the probabilities of the car coming into the hands of another person were exceedingly great"). It is in the nature of rental vehicles that they are often rented by temporary visitors to Maryland, such as business persons and vacationers. The parking or garaging of these rental vehicles often requires the lessee to give a hotel, restaurant, or other valet permission to operate the vehicle. The Supreme Court of Florida, in Roth v. Old Republic Ins. Co., 269 So. 2d 3, 6 (Fla. 1972), recognized the probability that persons other than the lessee would operate a rental vehicle. The court noted: 
 
[**515] In the very nature of modern automobile use a lessee of a rental car often has to turn the car over to car park, garage, or filling station personnel and others for temporary operation and that it would be unreasonable to negate the rental car agency's liability and its insurance coverage in case of accident because of the existence of a collateral or side agreement . . . .
 
If these[***17] unauthorized permittees are not motor vehicle owners they do not need to maintain liability insurance. See Title 16 of the Transportation Article. If they are not covered by the required security, accidents in which they are involved could result in injured claimants who would have no recourse to compensation from a private insurance fund. See Larimore, 314 Md. at 625, 552 A.2d at 892; Jennings, 302 Md. at 360, 488 A.2d at 170. Moreover, as we have indicated, the purpose of the compulsory insurance law "would be frustrated to a significant extent" if we were to allow an exclusion from the required security that is not specifically provided by statute. See Jennings, 302 Md. at 360, 488 A.2d at 170.

   [*552] Neither § 18-106 nor any other statutory provision authorizes a lessor to exclude an unauthorized permittee from the coverage required by § 18-102(b). It is the General Assembly's role to determine whether unauthorized permittees are to be excluded from coverage under § 18-102(b). We will not read an exclusion into the statute. Accordingly, we affirm the judgment of the circuit court.
 
JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AFFIRMED. COSTS TO BE PAID [***18] BY APPELLANT. 

WILLIAM A. FRANCH et al. v. LOTTIE L. ANKNEY et vir. 
No. 39, SEPTEMBER TERM, 1995
 
COURT OF APPEALS OF MARYLAND
 
341 Md. 350; 670 A.2d 951; 1996 Md. LEXIS 8

 January  29, 1996, FILED

   PRIOR HISTORY: No. 39. Certiorari to the Court of Special Appeals (Circuit Court for  Anne Arundel  County). Raymond G. Thieme, Jr., JUDGE.

DISPOSITION: [***1] JUDGMENT OF COURT OF SPECIAL APPEALS REVERSED. CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO AFFIRM THE JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY. COSTS TO BE PAID BY THE RESPONDENTS.

CORE TERMS:  settlement, third-party, workers' compensation, unauthorized, malpractice, expert testimony, tortfeasor, incorrect, third party, insurer, standard of care, prejudiced, settle, amount equal, intermediate, parking lot, terminating, subrogation, advice, unduly prejudicial, motion to strike, unsound, insured, abuse of discretion, appealing, consented, claimant, abused, purpose of establishing, obtain reimbursement

COUNSEL: ARGUED BY Ronald G. Dawson (Smith, Somerville & Case, L.L.C., on brief) of Baltimore, MD., FOR PETITIONER.
 
ARGUED BY Marcus Z. Shar (Bierer, Shar & Allentoff, P.A., of Baltimore, MD.; Jack J. Schmerling of Glen Burnie, MD.) on brief FOR RESPONDENT.

JUDGES: ARGUED BEFORE Murphy, C. J., Rodowsky, Chasanow, Karwacki, Bell, Raker, and Smith, Marvin H. (Retired, specially assigned) JJ. Dissenting opinion by Bell, J.

OPINIONBY: Chasanow

OPINION:  
[*353] [**952] Opinion by Chasanow, J.

   Bell, J., dissents
 
Filed: January 29, 1996
 
The question presented in this appeal is whether the trial judge abused his discretion in striking the testimony of two [*354] expert witnesses in an attorney malpractice case on the ground that the experts' opinions were based on an erroneous interpretation of Maryland law. We hold that the judge's ruling did not constitute an abuse of discretion.

   I.

   This appeal stems from an attorney malpractice action brought in the Circuit Court for Anne Arundel County in 1988 by Respondent [**953] Lottie Ankney (Ankney) against William A. Franch (Franch), Petitioner, alleging negligence in Franch's representation of Ankney in a workers' compensation claim. n1 The gist of Ankney's complaint is that Franch gave her bad advice regarding the prospects of successfully appealing[***2] an unfavorable ruling of the Workers' Compensation Commission (the Commission), and that as a result she failed to pursue an appeal that would have been successful.

n1 Mrs. Ankney's husband, Walter J. Ankney, was a co-plaintiff in the action against Franch, but his status does not affect this appeal.

   Ankney injured her back in January 1982 during the course of her employment at Maritel Enterprises (Maritel). She had been sent to purchase lunch for a meeting. Returning to the office, Ankney slipped and fell on an icy parking lot owned by a third party, Beerfoot Enterprises, Inc. Ankney filed a workers' compensation claim against her employer, Maritel, and in April of 1982 the Commission awarded her compensation for medical expenses associated with the injury plus $177 per week in disability benefits. All benefits were to be paid by her employer's insurance company, Aetna Casualty & Surety Company (Aetna). Ankney's attorney in the original workers' compensation proceeding was Samuel H. Paavola.

   According to Ankney, [***3] Aetna was slow in paying her medical expenses, and that as a result she suffered financial hardship. After one of her doctors filed suit against her for non-payment of medical bills, Ankney complained about the situation to Paavola. In response, Paavola negotiated a $6,500 settlement with Beerfoot, the owner of the parking lot in which Ankney [*355]had been injured. The settlement was reached without the prior knowledge or approval of Aetna. Part of the settlement was retained by Paavola as attorney fees, and Ankney used the remainder of the money, $4,573.55, to pay part of her medical expenses.

   Upon learning from Paavola that Ankney had recovered $6,500 from the parking lot owner, Aetna advised Paavola that it would no longer pay Ankney workers' compensation benefits on the ground that its subrogation interests in the claim against Beerfoot had been prejudiced by the settlement. In fact, Aetna indicated that it was "very surprised" to learn of the settlement with Beerfoot since it was "initially advised that the accident occurred" on property owned by Maritel, Ankney's employer. At some point after the settlement with Beerfoot, Ankney discharged Paavola and retained Franch to represent[***4] her. In August of 1984, Franch requested an emergency hearing before the Commission on Ankney's case due to "serious financial problems" she was suffering. At the hearing, Aetna argued that it was no longer liable to pay Ankney any benefits because Ankney had entered into an unauthorized settlement with the third-party tortfeasor, Beerfoot. In an order dated January 29, 1985, the Commission agreed with Aetna and terminated Ankney's benefits from the date of the settlement with Beerfoot.

   Shortly after the Commission's ruling, Ankney had discussions with Franch and his law partner, Ronald Jarashow, regarding the possibility of appealing the Commission's ruling. According to Ankney, Franch and Jarashow advised her that she could appeal the decision to circuit court, but that she would have to advance $2,500 to cover costs associated with the appeal and that she would have little chance of prevailing. This advice was apparently based on the view that the unauthorized settlement probably foreclosed Ankney's right to future benefits. n2 Based on the [**954] advice of Franch and Jarashow, [*356] Ankney opted not to pursue the appeal. n3 In a letter to Ankney dated February 28, 1985, Franch confirmed that[***5] he did "not believe that an appeal could be successful," and therefore "it was mutually agreed that there would be no appeal taken." The time for appealing the commission's decision expired, and Ankney lost her opportunity to challenge the Commission's ruling.

n2 Prior to the Court of Special Appeals decision in this case, this view was also held by at least one leading authority on Maryland Workers' Compensation Law. See RICHARD P. GILBERT AND ROBERT L. HUMPHREYS, JR., MARYLAND WORKERS' COMPENSATION HANDBOOK § 16.1-5, at 325 (2d ed. 1993)("The claimant should not settle the claim 'out from under' the lienholder by reaching a separate accommodation with the third-party tort feasor. Impairment of the employer/insurer's rights by the vehicle of a de [minimis] settlement could foreclose the claimant's future rights in worker's compensation proceedings and require a disgorging of the employer/insurer's monetary interest." (Footnote omitted.)). In Western Maryland Railway Co. v. Assurance Corp., 163 Md. 97, 103, 161 A. 5, 8 (1932), we noted "'an insured cannot settle with the one causing him loss, except with the acquiescence of the insurance company without putting in peril his status with the latter.'" (Citation omitted). 

[***6] 

n3 Because judgment for Franch was entered at the conclusion of Ankney's case for malpractice, neither Franch nor Jarashow testified at the trial. During his opening statement, however, counsel for Franch contended that the reason Ankney decided not to pursue the appeal was that she did not have the $2,500 for expenses.

   In January of 1988, Ankney filed a malpractice action against Franch and his law firm, Franch, Earnest & Crowdrey, P.A., alleging that the defendants breached the generally accepted standards of care by failing to appeal the Commission's ruling. At trial on the malpractice action in August of 1993, Ankney produced, as expert witnesses, two attorneys who practice in the field of workers' compensation law, Herbert J. Arnold (Arnold) and Harold DuBois (DuBois). Both attorneys testified that, contrary to what Franch advised Ankney, an appeal of the Commission's ruling would have succeeded and would not have involved significant litigation expenses. Both attorneys testified that the Commission erred as a matter of law in terminating Ankney's benefits, and therefore she would have[***7] prevailed in the circuit court via a motion for summary judgment. The experts further opined that, in advising Ankney that a circuit court appeal had little chance of success, Franch had breached the duty of care he [*357] owed Ankney, his client, and that that breach had caused Ankney to lose workers' compensation benefits to which she was entitled. DuBois estimated the potential value of the lost benefits at $320,000 plus the value of Ankney's medical expenses related to the injury.
 
At the conclusion of Ankney's case, Judge Raymond G. Thieme, Jr. granted Franch's motion to strike the testimony of both experts on the ground that the opinions were based on an incorrect interpretation of Maryland law. The trial judge then granted a motion for judgment in favor of Franch on the ground that Ankney had failed to produce any admissible expert testimony establishing the relevant standard of care. n4 Ankney appealed to the Court of Special Appeals. The intermediate appellate court held that the judge's striking of the testimony constituted a "clear abuse of discretion," and remanded the case for retrial. Ankney v. Franch, 103 Md. App. 83, 115-16, 652 A.2d 1138, 1153-54 (1995). We granted[***8] certiorari. 

n4 Expert testimony as to the relevant standard of care is necessary in an attorney malpractice case, except in those cases where the common knowledge or experience of laymen is sufficient to allow the fact finder to infer negligence from the facts. Hooper v. Gill, 79 Md. App. 437, 441, 557 A.2d 1349, 1351, cert. denied, 317 Md. 510, 564 A.2d 1182 (1989), and cert. denied, 496 U.S. 906, 110 S. Ct. 2588, 110 L. Ed. 2d 269 (1990). See also Central Cab Co. v. Clarke, 259 Md. 542, 551, 270 A.2d 662, 667 (1970)(noting that in some attorney malpractice cases expert testimony is necessary, but holding that expert opinion testimony was not required in a case where the lawyer's conduct was a "clear violation" of the duty of care owed to the client).

   II.

   Under the Maryland Workers' Compensation Act, Maryland Code (1991 Repl. Vol, 1995 Supp.), Labor and Employment Article (LE), §§ 9-101 through 9-1201, n5 an employer is generally required to pay workers' compensation benefits to an employee who[***9] suffers an accidental personal injury in the course of employment, regardless of whether the employer is [*358] at fault for the injury. See LE § 9-501. Where, as here, the employee's injury resulted from the tortious conduct of a third-party, the statute grants the employer n6 the right to sue the third-party to recover an amount equal to the benefits the employer has been required to pay the employee because of the injury.  See LE § 9-902(a) and (b); Erie Insurance v. [**955] Curtis, 330 Md. 160, 164, 623 A.2d 184, 186 (1993). The employer has the exclusive right to pursue a cause of action against the third-party tortfeasor for two months. LE § 9-902(c); Erie, 330 Md. at 164, 623 A.2d at 186. Thereafter, the employee also has the right to bring an action against the third-party, but the employer retains subrogation rights in the employee's claim.  Erie, 330 Md. at 164, 623 A.2d at 186. The employer's subrogation interest in the third-party claim acts as a "statutory lien" on any recovery the employee may obtain from the third-party. RICHARD P. GILBERT AND ROBERT L. HUMPHREYS, JR., MARYLAND WORKERS' COMPENSATION HANDBOOK § 16.1-5, at 325 (2d ed. 1993, 1995 Cum. Supp.). In[***10] other words, if the employee recovers compensation from the third-party tortfeasor, the employer is entitled to obtain reimbursement for its workers' compensation payments from the proceeds. See LE § 9-902(e). Where recovery from the third party is less than the employee is entitled to receive in benefits, the employee retains the right to recover the difference between the amount received from the third party and the amount payable under the statute. See LE §§ 9-902, 9-903; see also Brocker Mfg. v. Mashburn, 17 Md. App. 327, 301 A.2d 501 (1973). 

n5 All statutory references are to Maryland Code (1991 Repl. Vol., 1995 Supp.), Labor and Employment Article (LE).

n6 For the sake of simplicity, the term "employer" in this section also refers to the employer's insurance carrier. See LE § 9-902.

   The employer's rights in the claim against the third party are only those derived through the employee.  See Johnson v. Miles, 188 Md. 455, 459, 53 A.2d 30, 32 (1947). Pursuant to general principles[***11] of subrogation law, therefore, if an injured employee settles the claim and releases the third-party tortfeasor from liability, the employer's ability to pursue the claim against the tortfeasor is extinguished. See Noma [*359] Elec. Corp. v. Fidel. & Dep. Co., 201 Md. 407, 410, 94 A.2d 277, 278 (1953); 6A JOHN ALAN APPLEMAN AND JEAN APPLEMAN, INSURANCE LAW AND PRACTICE § 4092, at 239 (1972); 16 COUCH ON INSURANCE 2D (REV ED.) § 61:194, at 250-51 (1983). Thus, a de minimis settlement between the employee and the tortfeasor could prejudice the employer's interest by depriving the employer of its ability to obtain reimbursement equal to the full value of the third-party claim. See MARYLAND WORKERS' COMPENSATION HANDBOOK § 16.1-5, at 325. For example, in the instant case, Aetna may have been prejudiced if Beerfoot was negligent in failing to keep its parking lot free of ice. If Beerfoot's negligence caused Ankney to slip and fall, then under general principles of tort law Beerfoot was liable for the full extent of Ankney's damages. In settling the claim against Beerfoot and releasing it from liability, however, Ankney destroyed Aetna's right to obtain any reimbursement from Beerfoot. [***12] Therefore, an employee should notify the employer or insurer when making a claim against a third party and when contemplating any settlement, especially when the settlement is substantially below the amount of workers' compensation benefits paid or payable by the employer/insurer. See MARYLAND WORKERS' COMPENSATION HANDBOOK § 16.1-5, at 325; see also Western Maryland Railway Co. v. Assurance Corp., 163 Md. 97, 103-04, 161 A. 5, 8 (1932)(noting that an insured who settles with a third-party tortfeasor without the acquiescence of the insurance company risks forfeiting all money previously recovered by the insured from the insurance company).
 
The question at the heart of this case is what was the effect of Ankney's unauthorized settlement on Aetna's duty to pay future workers' compensation benefits to Ankney? The Commission ruled that the settlement fully relieved Aetna of its responsibility to pay any benefits after the date of the settlement. The Court of Special Appeals, however, concluded that the Commission's decision to terminate Ankney's benefits was "inconsistent with the legislative intent" of the workers' compensation statute. Ankney, 103 Md. App. at 108, 652 A.2d at 1150.[***13] The intermediate appellate court held that "an unauthorized [*360] third-party settlement does not, in itself, constitute grounds for the termination" of benefits. Ankney, 103 Md. App. at 109, 652 A.2d at 1150. Rather, the court held, the employer is entitled to reimbursement from the proceeds of the settlement as the statute provides. Ankney, 103 Md. App. at 110, 652 A.2d at 1151. See LE § 9-902(e). Additionally, the court held that if the employer can establish that it has been prejudiced by the settlement, i.e., because the reasonable dollar value of the third-party claim might have been significantly greater [**956] than the amount of the actual unauthorized settlement and the settlement was less than the workers' compensation benefits, then the employer is also entitled to a credit for the amount of the prejudice. n7 Ankney, 103 Md. App. at 109-10, 652 A.2d at 1151. The court also noted that in cases where the total amount of the credits due the employer because of the unauthorized settlement exceeds the amount of future benefits that would be due the employee, the employee's benefits could be terminated. Ankney, 103 Md. App. at 111, 652 A.2d at 1151. See also LE [***14]§ 9-903. n8 We agree with [*361] the above described analysis by the Court of Special Appeals. n9 Indeed, the parties do not contend otherwise. n10 

n7 Hence, under the holding of the Court of Special Appeals in the present case, Aetna would be entitled to a credit for the amount of the settlement ($6,500) minus attorney fees and costs. Further, if Aetna could demonstrate that the reasonable dollar value of the claim against Beerfoot was greater than $6,500, it would also be entitled to a credit for that amount against its liability to Ankney. Ankney v. Franch, 103 Md. App. 83, 110-11, 652 A.2d 1138, 1151 (1995).

n8 LE § 9-903 provides:
 
"(a) In general. -- Except as provided in subsection (b) of this section, if a covered employee or the dependents of a covered employee receive an amount in an action:

   (1) the amount is in place of any award that otherwise could be made under this title; and

   (2) the case is finally closed and settled.

(b) Exception. -- If the amount of damages received by the covered employee or the dependents of the covered employee is less than the amount that the covered employee or dependents would otherwise be entitled to receive under this title, the covered employee or dependents may reopen the claim for compensation to recover the difference between:

   (1) the amount of damages received by the covered employee or dependents; and 

   (2) the full amount of compensation that otherwise would be payable under this title."
[***15] 

n9 In reaching its decision, the Court of Special Appeals also held that, had Ankney appealed the Commission's ruling to circuit court, Aetna would not have had the opportunity to litigate the question of the full value of the claim against Beerfoot in circuit court. Ankney, 103 Md. App. at 112-13, 652 A.2d at 1152. Because of our holding in Section III of this opinion, infra, we find it unnecessary to reach this issue. We stress, however, that we in no way express approval for the Court of Special Appeals' holding with respect to the scope of review of a workers' compensation claim in the circuit court.

n10 Franch, the Petitioner, raised in his Petition for Certiorari the propriety of the Court of Special Appeals' holding that the unauthorized settlement did not automatically terminate workers' compensation benefits. Franch did not, however, dispute this holding in his brief to this Court. Ankney did not file a Cross Petition for Certiorari challenging the Court of Special Appeals' holding that the unauthorized settlement entitled the employer to a credit for the amount of the settlement plus any amount it was prejudiced by the settlement. Therefore, the intermediate appellate court's holding on that question is not before us on this appeal.

[***16]

   III.

   We turn to the ruling of the trial judge striking the testimony of Ankney's two expert witnesses, which the Court of Special Appeals held to be an abuse of discretion. As a general rule, expert witnesses may not give opinions on questions of law except for those concerning the law of another jurisdiction. 6 LYNN MCLAIN, MARYLAND EVIDENCE § 702.1, at 219-20 (citing Maryland cases); 1 MCCORMICK ON EVIDENCE § 12, at 50 (John W. Strong ed., 4th ed. 1992). Expert testimony of attorneys is admissible in attorney malpractice cases, however, for the purpose of establishing the standard of care for a reasonable, prudent lawyer in a particular situation. See Cochrane v. Little, 71 Md. 323, 333, 18 A. 698, 701 (1889); Hooper v. Gill, 79 Md. App. 437, 441, 557 A.2d 1349, 1351, cert. denied, 317 Md. 510, 564 A.2d 1182 (1989), and cert. denied, 496 U.S. 906, 110 S. Ct. 2588, 110 L. Ed. 2d 269 (1990). Because an expert opinion on the standard of care in an attorney [*362] negligence case is often based upon the expert's interpretation of the law, experts in such cases may state their opinion on the law as a foundation for their opinion on the standard of care.

   In the instant case, [***17] the testimony of Arnold and Dubois was offered for the purpose of establishing that a reasonable, prudent attorney in Franch's position would have advised Ankney of the probable success of an appeal of the Commission's ruling terminating her benefits. The basis for the testimony given by both experts was their view that, [**957] under Maryland law, the only effect of the unauthorized third-party settlement was to entitle Aetna to a credit for an amount equal to that received by Ankney in the third-party settlement. The witnesses testified that, in their opinions, the Commission had erred as a matter of law in terminating Ankney's benefits simply because of the unauthorized settlement. Therefore, the experts testified, Franch was negligent in not advising Ankney to pursue the appeal.

   The first expert, Arnold, gave the following testimony:
 
"[DEFENSE COUNSEL]: Mr. Arnold, you said that you found [the Commission]'s opinion [terminating Ankney's benefits] to have been totally erroneous.

[ARNOLD]: I think it was erroneous.

[DEFENSE COUNSEL]: *** Aetna had put on evidence that Mr. Paavola had settled the claim with Beerfoot, the third-party, without Aetna's[***18] knowledge ... and without Aetna's approval.... Are you saying that that evidence was irrelevant to the -- to the issues?

[ARNOLD]: To the final issues in the case, yes. *** I think that the end result in the case was that Aetna was entitled to a credit for the net amount received by Mrs. [Ankney] against any future compensation award and nothing more.
 
* * * 
 
[DEFENSE COUNSEL]: *** Isn't it the law in Maryland that Aetna could argue, we have been prejudiced by this unapproved settlement and ... we are entitled to more than a credit, we're entitled to the -- to a credit for the [*363] extent of our prejudice, not for the extent of what was actually paid?
 
* * * 
 
[ARNOLD]: No, sir."
 
The second expert, Dubois, gave a similar opinion as to the effect of the unauthorized settlement. He testified that whether Ankney had settled the case without Aetna's consent was irrelevant, since Aetna would be entitled only to a credit. n11 

 n11 Unlike Arnold, DuBois was not as explicit that Aetna would be entitled only to a credit equal to the amount of the third-party settlement. DuBois did, however, testify that it was irrelevant whether Aetna knew about or consented to the settlement. This testimony carried essentially the same meaning as Arnold's testimony because, were it truly irrelevant whether Aetna consented to the settlement, Aetna would have been entitled to the same credit as if it had consented, i.e., an amount equal to the amount of the settlement. See LE § 9-902(e). Hence, Dubois's testimony was based on the same legal interpretation as Arnold's testimony.

[***19]

   In granting Franch's motion to strike the testimony, Judge Thieme ruled:
 
"I considered [Western Maryland Railway Co. v. Assurance Corp., 163 Md. 97, 161 A. 5 (1932)] as the only authority, at least the guiding authority in -- on this case. And I am satisfied that one reading of that case would clearly be that the ... Commission[] is right in cutting off the [benefits]. *** That would be a logical extension of that case. I also have some problems as to whether that would be the current law. Now, to take the position that the only alternative would be for a credit, I think is just a complete misstatement of the law. I don't accept that. I believe that the insurance company certainly would have a right to show that the actions were ... prejudicial. *** So, I believe that both Mr. Dubois and Mr, Arnold's opinions are incorrect and I will grant the motion to strike them."
 
In essence, Judge Thieme ruled that the expert testimony of both Arnold and DuBois was predicated upon a faulty interpretation of Maryland law. Accordingly, he struck the testimony.

   [*364] It is well-settled that the decision to admit or exclude expert testimony is within the discretion of the trial judge.  Hartless [***20]  v. State, 327 Md. 558, 576, 611 A.2d 581, 590 (1992); Simmons v. State, 313 Md. 33, 43, 542 A.2d 1258, 1263 (1988); Franceschina v. Hope, 267 Md. 632, 636, 298 A.2d 400, 403 (1973). A trial judge's decision to admit or exclude expert testimony will be reversed only if it is founded on an error of law or some serious mistake, or if the judge has abused his discretion. Hartless, 327 Md. at 576, 611 A.2d at 590. Further, if an expert's [**958] opinion testimony is based upon a premise which is shown to be unsound or faulty, the judge should strike the testimony. See Evans v. State, 322 Md. 24, 34-35, 585 A.2d 204, 209 (1991)("The expert's opinion is of no greater value than the soundness of the reasons given for it will warrant. If no adequate basis for the opinion is shown, the opinion should not be admitted or, if already admitted, should be stricken.")(quoting MARYLAND EVIDENCE § 705.1, at 256-57). See also State, Use of Stickley v. Critzer, 230 Md. 286, 290, 186 A.2d 586, 588 (1962)("No matter how highly qualified the expert may be in his field, his opinion has no probative force unless a sufficient basis to support a rational conclusion is shown.")(footnote omitted). [***21] Applying these principles to Judge Thieme's ruling in the instant case, we find no basis for reversing his decision to strike the testimony. The foundation for the testimony of both experts was their belief that any prejudice Aetna may have suffered because of the unauthorized settlement was irrelevant to Aetna's liability to pay benefits. As the opinion of the Court of Special Appeals in this case demonstrated, this interpretation of Maryland law was incorrect. In actuality, Aetna would have been entitled to a credit of $6,500 as well as an amount equal to any prejudice that it could demonstrate it suffered as a result of the unauthorized settlement. Ankney, 103 Md. App. at 110, 652 A.2d at 1151. Hence, the amount of prejudice caused by the settlement was relevant. Accordingly, the experts' opinions that Franch's advice was negligent were based upon an unsound premise. The trial judge could reasonably have concluded that this defective premise was material to the admissibility of [*365] the experts' opinions. Therefore, the trial judge did not abuse his discretion in striking the testimony.

   The Court of Special Appeals, in finding that the judge abused his discretion, ruled that a[***22] judge may not strike expert testimony in a way that is "unduly prejudicial" to a litigant. Ankney, 103 Md. App. at 115, 652 A.2d at 1153. The intermediate appellate court apparently found the striking of the testimony in this case "unduly prejudicial" because it left Ankney without any expert testimony, which was necessary to her case. We disagree with this analysis. Trial judges are not barred from striking expert opinions that are based on an unsound or deficient premise simply because those opinions are vital to a party's case. Here, the opinions of both Arnold and DuBois were based on an incorrect interpretation of the law. The judge was therefore fully justified in striking the testimony. Moreover, Franch filed a pre-trial memorandum based on the depositions of both experts, arguing that their testimony should be excluded because their opinions were based on an incorrect interpretation of Maryland law. Accordingly, Ankney was on notice before trial that the basis for the experts' opinions would be challenged by Franch and might be stricken. Nonetheless, Ankney proceeded to offer the testimony, and both experts, consistent with their prior depositions, testified based on an[***23] incorrect interpretation of the law. Under these circumstances, we fail to see how Judge Thieme's ruling was "unduly prejudicial." We find no abuse of discretion. Therefore, we reverse the holding of the Court of Special Appeals.

 
JUDGMENT OF COURT OF SPECIAL APPEALS REVERSED. CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO AFFIRM THE JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY. COSTS TO BE PAID BY THE RESPONDENTS.

DISSENTBY: BELL

DISSENT:  
DISSENTING OPINION BY BELL, J.
 
FILED: January 29, 1996
 
I agree with the Court of Special Appeals. See Ankney v. Franch, 103 Md. App. 83, 652 A.2d 1138 (1995). Accordingly, I dissent. 

STATE OF MARYLAND v. SUSAN HOPE PAGANO 
No. 69, September Term, 1995
 
COURT OF APPEALS OF MARYLAND
 
341 Md. 129; 669 A.2d 1339; 1996 Md. LEXIS 1

 January  16, 1996, Filed

   PRIOR HISTORY: [***1] Certiorari to the Court of Special Appeals (Circuit Court for  Anne Arundel  County). H. Chester Goudy, JUDGE.

DISPOSITION: JUDGMENT AFFIRMED; COSTS TO BE PAID BY ANNE ARUNDEL COUNTY.

CORE TERMS:  obstruction, impede, judicial proceeding, prong, obstruct, obstructing, endeavor, juror, duty, legislative intent, aide, intimidate, corruptly, impeding, indictment, exceeding, corrupt, teacher, closet, lied, plain language, grand jury, aimed, police investigation, police officer, interpreting, punished, arms, judicial construction, original version

COUNSEL: ARGUED BY Kathryn Grill Graeff, Assistant Attorney General, (J. Joseph Curran, Jr., Attorney General, on brief) of Baltimore, MD, FOR PETITIONER.
 
ARGUED BY Margaret A. Mead (Roland Walker, Walker & Van Bavel, P.A., on brief) of Baltimore, MD, FOR RESPONDENT.

JUDGES: ARGUED BEFORE Murphy, C.J. Eldridge, Rodowsky, Chasanow, Karwacki, Bell, and Raker, JJ.

OPINIONBY: MURPHY

OPINION:  
[**1339] [*131] OPINION BY MURPHY, C.J.
 
Filed: January 16, 1996
 
The issue in this case is whether lying to a police officer during an investigation and before the initiation of judicial proceedings and instructing others to do the same constitutes an obstruction of justice under Maryland Code (1957, 1992 Rep. Vol., 1995 Supp.) Article 27, § 26. That section provides:
 
Intimidating or corrupting jurors, etc.; obstructing justice.

 If any person [1] by corrupt means or by threats or force endeavors to influence, intimidate, or impede any juror, witness, or court officer of any court of this State in the discharge of his duty, [***2] or [2] by corrupt means or by threats or force obstructs, [**1340] impedes, or endeavors to obstruct or impede the due administration of justice therein, he is liable to be prosecuted, and on conviction to be punished by fine not exceeding $10,000, or by imprisonment not exceeding 5 years, or both, according to the nature and aggravation of the offense.
 
(emphasis added).

   I

   According to the agreed statement of facts, Amy Haslup is a student who suffers from cerebral palsy. She is confined to a wheelchair and has little control over her body. She is blind and has the mental capacity of an infant.

   Susan Pagano was Amy's teacher at the Ruth Parker Eason School in Glen Burnie, Maryland. On December 10, 1993, Pagano placed Amy in a storage closet after she "fussed" when a teacher's aide tried to remove her coat. Amy remained in the closet for over three hours. Pagano then called Amy's father who sent relatives to bring Amy home. When Amy's father and relatives noticed a red mark, scratches, and blood on Amy's arms, they brought her to the hospital. The attendant physician in the emergency room concluded that the marks on Amy's arms could not have been self-inflicted and reported[***3] the possible child abuse to the Anne Arundel County Police.

   [*132] Pagano told her two teacher's aides to lie to the police and not mention the marks on Amy's arms or Pagano's putting Amy in a closet. On December 20, 1993, the police interviewed Pagano. She denied having any knowledge of Amy's injuries and stated that nothing unusual happened that day. The teacher's aides also lied to the police.

   When one of the aides threatened to tell the truth, Pagano admitted to the principal that she had lied and told her aides to lie. On January 3, 1994, Pagano told the police she did not report Amy's injuries because she was afraid of Amy's father. She subsequently admitted that she put Amy in a closet and that she had lied and told her aides to lie to the police.

   Pagano was indicted in the Circuit Court for Anne Arundel County for the common law crime of misconduct in office and for obstruction of justice. Pagano filed a motion to dismiss both counts of the indictment. At the June 8, 1994 hearing on Pagano's motion before Judge Chester Goudy, Pagano argued that a person can be charged with obstruction of justice only if there is a judicial proceeding pending and that obstructing or impeding a police[***4] investigation, absent such a judicial proceeding, cannot constitute obstruction of justice under Article 27 § 27. n1 The trial court reserved its decision, and on June 10, 1994 granted Pagano's motion to dismiss the obstruction of justice charge. The court stated:

n1 In 1994, § 27 was renumbered and is now § 26. Ch. 712 of the Acts of 1994. Throughout this opinion, we will refer to the current and prior forms of the obstruction of justice statute as § 26.

 
The Court has reviewed the statute and relevant case law, and holds that the relevant statute only proscribes acts committed after there has been some judicial action. The Mayne [v. State, 45 Md. App. 483, 414 A.2d 1 (1980)] decision did not reach the issue currently before the Court. More importantly, the statute itself only proscribes acts that interfere with a pending judicial proceeding. The Court believes the word "therein" contained in the statute is not surplusage, but relates back to the phrase "of any court." [*133] Therefore, the statute[***5] applies only after there has been some court involvement.
 
The state entered a nolle prosequi on the misconduct in office charge on June 30, 1994 and appealed the dismissal of the obstruction of justice charge. The Court of Special Appeals affirmed the trial court's judgment. State v. Pagano, 104 Md. App. 113, 655 A.2d 55 (1995). We granted certiorari to determine whether Pagano's alleged actions constitute obstruction of justice under § 26.

   II
 
In construing the meaning of a word in any statute, "the cardinal rule is to ascertain and carry out the real legislative intention. The primary source of legislative [**1341] intent is, of course, the language of the statute itself." Tucker v. Fireman's Fund Insurance Co., 308 Md. 69, 73, 517 A.2d 730 (1986). In some circumstances, we need not look beyond the statutory language to determine the legislative purpose. "Sometimes the language in question will be so clearly consistent with apparent purpose (and not productive of any absurd result) that further research will be unnecessary." Kaczorowski v. Mayor and City Council of Baltimore, 309 Md. 505, 515, 525 A.2d 628 (1987); see also Morris v. Prince George's County, 319[***6] Md. 597, 603, 573 A.2d 1346 (1990). Nonetheless, "the 'meaning of the plainest language' is controlled by the context in which it appears . . . ." Kaczorowski, supra, 309 Md. at 514. We may always consider evidence of legislative intent beyond the plain language of the statute. Id. at 514-15.

   The State contends that Pagano's alleged actions violated the second prong of § 26 by "obstructing . . . the due administration of justice." The term "therein" in the second prong of § 26, the State contends, refers "generally to the legal system of justice." Pagano's actions, it argues, are, therefore, prohibited by the second prong of the statute. We disagree. The State's proposed interpretation conflicts with [*134] the plain language of the statute, the legislative intent, and prior cases interpreting this and similar statutes.

   We seek to read statutes "so that no word, clause, sentence or phrase is rendered surplusage, superfluous, meaningless, or nugatory." Montgomery County v. Buckman, 333 Md. 516, 524, 636 A.2d 448 (1994). By the State's interpretation, the term "therein" is unnecessary. By the plain language of the statute, however, the term "therein" refers to "any court[***7] of this State." See State v. Pagano, supra, 104 Md. App. at 115, 120. The statute, therefore, prohibits obstruction of the administration of justice in the courts. Since courts administer justice through judicial proceedings, the second prong, ordinarily, prohibits only actions aimed at obstructing or impeding a pending judicial proceeding. Likewise, since the duties of jurors, witnesses, and court officers usually arise in relation to judicial proceedings, the first prong also, ordinarily, requires a pending judicial proceeding. Thus, Pagano's actions do not fall within the meaning of § 26 because there was no judicial proceeding pending at the time of her actions.

   The legislative history supports this interpretation of the statute. Section 26 was enacted by Chapter 450 of the Acts of 1853 in a bill entitled "AN ACT declaratory of the law concerning contempts of Court." Section 1 of the act limited the power of the courts to hold people in contempt to cases of "misbehaviour . . . in the presence of the said courts, or so near thereto as to obstruct the administration of justice . . . ." Section 2 of the act was very similar to the current § 26. n2 [*135] The terms "administration[***8] of justice," as used in § 1 of the act, clearly required some nexus to the courts. It is reasonable to presume that the legislature intended the same meaning for the identical terms in § 2 of the act. Baltimore & Annapolis Railroad Co. v. Lichtenberg, 176 Md. 383, 391, 4 A.2d 734 (1939), appeal dismissed, 308 U.S. 525, 84 L. Ed. 444, 60 S. Ct. 297 (1939). Thus, the legislature originally intended the terms "administration of justice" in § 26 to require a nexus to the court system and did not intend for those terms to refer generally to the legal system.

n2 Section 2 read:
 
That if any person or persons shall corruptly, or by threats or force, endeavor to influence, intimidate or impede any juror, witness or officer in any court of this State, in the discharge of his duty, or shall corruptly, or by threats or force, obstruct or impede, or endeavor to obstruct or impede the due administration of justice therein, every person or persons so offending shall be liable to be prosecuted therefor by indictment, and shall on conviction thereof be punished by fine, not exceeding five hundred dollars, or by imprisonment not exceeding three months, or both, according to the nature and aggravation of the offence.

[***9]

   Amendments since 1853 have removed the requirement that violation of the statute be charged by indictment, increased the penalties, made stylistic changes, and renumbered the section. See, e.g., Ch. 555 of the Acts of 1972; Ch. 274 of the Acts of 1981; Ch. 223 of the Acts of 1993; Ch. 712 of the Acts of 1994. In its 1981 amendment, the legislature [**1342] amended the phrase "in any court of this State" to read "of any court of this State." (emphasis added). The State contends that this amendment indicates a legislative intent to expand the scope of the statute beyond "acts which occurred at or near a court proceeding." A more reasonable interpretation of the change is that it was intended to expand obstruction of justice to acts that do not physically occur inside a court building and was, therefore, merely stylistic. No amendment to § 26 indicates a legislative intent to broaden the scope of the statute beyond the court system. n3 

n3 Article 27, § 150 prohibits making a false statement to a police officer with the "intent to cause an investigation or other action to be taken as a result thereof." In Choi v. State, 316 Md. 529, 560 A.2d 1108 (1989), we held that the intent element "is not satisfied when a false statement results from an interview as part of an ongoing police investigation. Rather, there must be a false report of a crime or a statement with the intent to cause other action to be taken." Id. at 547.

[***10]

   Prior cases interpreting this statute also support our conclusion that § 26 prohibits acts aimed at obstructing or impeding a pending judicial proceeding. Romans v. State of Maryland, [*136] 178 Md. 588, 16 A.2d 642 (1940), cert. denied, 312 U.S. 695, 85 L. Ed. 1131, 61 S. Ct. 732 (1941), clearly limited the second prong of § 26 to the courts. In that case, the defendants were charged with obstruction of justice for allegedly attempting to get a witness to leave Baltimore City during the trial in which the witness was to testify. Discussing the obstruction of justice statute, we said that the general terms of the statute embrace various forms of obstruction. Regarding the first prong of the statute, we said:
 
Thus the particular acts are not specified but, whatever they may be, if the acts be corrupt, or be threats or force, used in an attempt to influence, intimidate, or impede any juror, witness or officer in any court of the state in the discharge of his duty, there is an obstruction of justice. 
 
178 Md. at 592. As to the second prong of the statute, we said:
 
Likewise, if by acts of similar quality and nature the due administration of justice in any court shall either be impeded[***11] or obstructed or be so attempted, there is an obstruction of justice. 
 
Id. (emphasis added). In conclusion, we said that an act violating the first prong would also violate the second prong.
 
Furthermore, it is quite clear that the corrupt act, or one of threat or force, employed to influence or intimidate or impede any such juror, witness, or officer in the discharge of his duty in a court, must necessarily be, also, an endeavor to obstruct or impede in such court the due administration of justice." 
 
Id. (emphasis added). Thus, Romans interpreted the second prong of § 26 as applying "in any court." Id.

   In Pennington v. State, 308 Md. 727, 521 A.2d 1216 (1987), we again limited the second prong of § 26 to the courts. There, the defendant was convicted of obstructing justice for stabbing a woman in the District of Columbia to dissuade her from testifying in a trial pending in Baltimore City. We held that the Maryland courts had jurisdiction because the situs of a crime is the place where the result is [*137] felt. Id. at 746. While the situs of the assault was in the District of Columbia, the situs of the obstruction of justice was [***12]in Maryland because "the offense [was] against the State itself." Id. at 739. Quoting Romans, we said, "Irrespective of the identity of the immediate victim, the ultimate victim is inevitably the court." Id. at 735. The legislature is presumably aware of our decisions, Harris v. State, 331 Md. 137, 152 n.8, 626 A.2d 946 (1993), and has had ample opportunity to expand the scope of the statute in response to Romans and Pennington. n4 

n4 The State relies on two cases of the Court of Special Appeals in support of its contention that § 26 does not require a pending judicial proceeding: Irvin v. State, 23 Md. App. 457, 328 A.2d 329 (1974), aff'd on other grounds, 276 Md. 168, 344 A.2d 418 (1975) and Mayne v. State, 45 Md. App. 483, 414 A.2d 1 (1980), cert. denied, 288 Md. 739, cert. denied, 450 U.S. 910, 67 L. Ed. 2d 333, 101 S. Ct. 1347 (1981). Neither case directly addressed the issue before us today. (Our opinion in Irvin, supra, 276 Md. 168, was strictly limited to an unrelated issue.) In addition, the principle that legislative acquiescence in judicial construction of a statute evidences a correct interpretation of legislative intent "has little or no applicability when the judicial construction of the statute is not by the highest court of the jurisdiction involved." United States v. Streidel 329 Md. 533, 551 n.12, 620 A.2d 905 (1993); see also In re Wallace W., 333 Md. 186, 198, 634 A.2d 53 (1993).

[***13]

   [**1343] Cases interpreting the federal obstruction of justice statute, 18 U.S.C. § 1503 (1995 Supp.), are of particular relevance because the original version of § 26, Ch. 450 of the Acts of 1853, was identical to the original version of § 1503, 4 Stat. 487 (1831), and because the federal statute is still very similar to § 26. n5 Harris, supra, 331 Md. at 156-57. [*138] Consistent with our holding today, federal courts have ruled that § 1503 prohibits only "interference with a pending judicial proceeding." United States v. Brown, 688 F.2d 596 (9th Cir. 1982); see also United States v. Aguilar,     U.S.    , 21 F.2d 1475, 115 S. Ct. 2357, 2362, 132 L. Ed. 2d 520 (1995); United States v. Van Engel, 15 F.3d 623, 627 (7th Cir. 1993), cert. denied, 128 L. Ed. 2d 886, 114 S. Ct. 2163 (1994). "The statute is not applicable until, at the earliest, a complaint has been filed with a United States Commissioner." United States v. Metcalf, 435 F.2d 754, 756 (9th Cir. 1970); see also United States. v. Scoratow, 137 F. Supp. 620, 621 (W.D. Pa. 1956). 

n5 18 U.S.C. § 1503 currently reads:
 
(a) Whoever corruptly, or by threats or force, or by any threatening letter or communication, endeavors to influence, intimidate, or impede any grand or petit juror, or officer in or of any court of the United States, or officer who may be serving at any examination or other proceeding before any United States magistrate judge or other committing magistrate, in the discharge of his duty, or injures any such grand or petit juror in his person or property on account of any verdict or indictment assented to by him, or on account of his being or having been such juror, or injures any such officer, magistrate judge, or other committing magistrate in his person or property on account of the performance of his official duties, or corruptly or by threats or force, or by any threatening letter or communication, influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice, shall be punished as provided in subsection (b).

[***14]

   To prove a violation of the final clause, known as the "omnibus clause", of § 1503, the government must prove three elements:
 
(1) there must be a pending judicial proceeding; (2) the defendant must have knowledge or notice of the pending proceeding; and (3) the defendant must have acted corruptly with the specific intent to obstruct or impede the proceeding in its due administration of justice.
 
United States v. Williams, 874 F.2d 968, 977 (5th Cir. 1989); see also Pettibone v. United States, 148 U.S. 197, 204-208, 13 S. Ct. 542, 37 L. Ed. 419 (1893); United States v. Wood, 6 F.3d 692, 695 (10th Cir. 1993); United States v. Neal, 951 F.2d 630, 632 (5th Cir. 1992).

   The United States Supreme Court recently ruled that obstructing or impeding an investigation by the Federal Bureau of Investigation does not constitute obstruction of justice under § 1503. Aguilar, supra, 115 S. Ct. 2357. In Aguilar , after a grand jury had been convened, the defendant lied to the FBI during questioning which the grand jury had not authorized or directed. Id. at 2361. The Supreme Court held that "uttering false statements to an [*139] investigating agent . . . who[***15] might or might not testify before a grand jury is [not] sufficient to make out a violation of the catchall provision of § 1503." Id. at 2362. Such actions do not satisfy the intent requirement because they do not have the "natural and probable effect" of interfering with a judicial proceeding. Id. at 2363; see also United States v. Tham, 960 F.2d 1391, 1400 (9th cir. 1991); United States v. Simmons, 591 F.2d 206, 208 (3d Cir. 1979); United States v. Fayer, 573 F.2d 741 (2d Cir. 1978), cert. denied, 439 U.S. 831, 58 L. Ed. 2d 125, 99 S. Ct. 108 (1978); Scoratow, supra, 137 F. Supp. at 622. Thus, our interpretation of § 26 is consistent with the federal courts' interpretations of the federal obstruction of justice statute.

   We hold that the term "therein" in the second prong of § 26 refers to "any court of this State." Thus, the statute prohibits only actions aimed at obstructing or impeding a judicial proceeding. Pagano's alleged actions may have obstructed a police investigation, [**1344] but did not violate § 26 because there was no pending judicial proceeding which she sought to obstruct or impede. 
 
JUDGMENT AFFIRMED; COSTS TO BE PAID BY ANNE ARUNDEL [***16]  COUNTY.

                       
TYRONE JEROME GADSON v. STATE OF MARYLAND 
No. 25, September Term, 1995
 
COURT OF APPEALS OF MARYLAND
 
341 Md. 1; 668 A.2d 22; 1995 Md. LEXIS 167
 
   December  7, 1995, Filed

   PRIOR HISTORY: [***1]

   Certiorari to the Court of Special Appeals (Circuit Court for  Anne Arundel  County). Raymond G. Thieme, Jr., JUDGE.

DISPOSITION: JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED. CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO REMAND THIS CASE TO THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. COSTS TO BE PAID BY ANNE ARUNDEL COUNTY.

CORE TERMS:  dog, prison, detention, checkpoint, trooper, seizure, Fourth Amendment, sniff, guard, motorist, truck, visitor, passenger, articulable suspicion, airport, accomplished, booth, driver, detection, x-ray, criminal activity, access road, narcotics, intrusion, shack, searched, contraband, scan, screening, detaining

COUNSEL: ARGUED BY Julia Doyle Bernhardt, Assistant Public Defender, (Stephen E. Harris, Public Defender, on brief) of Baltimore, MD, FOR PETITIONER.
 
ARGUED BY Thomas K. Clancy, Assistant Attorney General, (J. Joseph Curran, Jr., Attorney General, on brief) of Baltimore, MD, FOR RESPONDENT.

JUDGES: Murphy, C.J. Eldridge, Rodowsky, Chasanow, Karwacki, Raker, Bell, JJ. Dissenting Opinion by Murphy, C.J., in which Rodowsky, J., joins.

OPINIONBY: CHASANOW

OPINION: [*5]
 
[**24] Opinion by Chasanow, J.

   Murphy, C.J., and Rodowsky, J. dissent
 
Filed: December 7, 1995
 
The question presented in this case is whether the State may constitutionally detain a prospective visitor to a prison long enough to conduct a "canine sniff" of the visitor's motor vehicle after the visitor, upon being told of the procedure, objects and expresses a desire to leave without entering the prison. While it is absolutely proper to require the visitor to submit to such a detention as a [**25] condition of entry, we hold that absent reasonable, articulable suspicion of criminal activity, it is unreasonable under the Fourth Amendment of the United States Constitution and Article 26 of the Maryland Declaration of Rights to detain those visitors who, prior to[*6] entering the[***2] prison, indicate a preference to leave rather than submit to the detention.

   I.

   Tyrone Jerome Gadson, Petitioner, was convicted in the Circuit Court for Anne Arundel County of possession of cocaine with intent to distribute and possession of marijuana with intent to distribute. The convictions were based on evidence seized during a search of Gadson's truck, including three bags of "crack" cocaine, two bags of marijuana, an electronic scale and other drug paraphernalia. The sole issue on appeal is whether the physical evidence should have been suppressed as the fruit of an illegal seizure.

   On September 13, 1992, Gadson and a friend planned to drive to the House of Correction in Jessup to drop off money for an inmate of the facility. Gadson turned off Maryland Route 175 and onto an access road leading to the prison building. The road also gives access to some houses owned by the Division of Correction and some construction trailers. After travelling up the access road approximately 300 yards, Gadson came to a stop at a "guard booth" next to the road. The House of Correction itself is located approximately a quarter of a mile beyond the booth. Although three signs along the access road[***3] warned that visitors were subject to search, Gadson testified that he failed to notice them. n1 Shortly after Gadson's truck stopped next to the guard booth, Trooper Charles Prince of the Maryland State Police approached Gadson's truck, identified himself, and informed [*7] Gadson that he intended to perform a "canine sniff" of the vehicle using a trained drug detection dog named "Sandy." 

n1 Three signs on the prison access road warn that visitors are subject to search. The first is located approximately 150 yards from the point where the road turns away from Maryland Route 175. It states: "WARNING. ALL VISITORS INCLUDING ALL VEHICLES AND OCCUPANTS ARE SUBJECT TO BEING SEARCHED UPON ENTERING OR EXITING THE PREMISES." A second sign states "WARNING: DRUG DETECTION DOGS BEING UTILIZED ON INSTITUTIONAL PROPERTY," and a final sign, located at the guard booth itself, warns "STOP. ALL VEHICLES SUBJECT TO INSPECTION."

   Pursuant to State police policy, Trooper Prince ordered Gadson to turn off his vehicle so that he could[***4] perform the drug scan. Gadson told Trooper Prince he objected to the canine sniff, and asked for permission to leave the area. The trooper denied Gadson's request. In compliance with the trooper's order, Gadson turned off his truck and waited for the dog to be brought over. The dog "alerted" Trooper Prince that it smelled drugs in the truck, and at that point, Gadson admitted to the trooper that there was marijuana in the truck. n2 Gadson's truck was searched and the contraband seized.

n2 Sandy "alerts" Trooper Prince to the presence of contraband in a vehicle by sitting down and turning his head to the right when he detects the odor of narcotics.

   At a suppression hearing before Judge Raymond G. Thieme, Jr., Trooper Prince testified that, in 1992 at the governor's request, the Maryland State Police established drug detection "checkpoints" at two state correctional facilities. The purpose of the checkpoints is to prevent transportation of drugs into the prisons. The trooper explained the typical procedure at[***5] these checkpoints is for an officer to wait until the visitor's vehicle stops at the guard shack. As the driver explains to the guard his business on the premises, a trooper approaches the vehicle and informs the driver of the required dog sniff. The driver is ordered to turn off the engine and remove the keys from the ignition. The trooper then brings the dog over to the vehicle and the sniff is performed. Gadson argues that, once informed of the canine sniffing procedure by Trooper Prince, he should have been given the option to turn back rather than submit to further detention and the dog sniff. Judge Thieme ruled against Gadson, and that ruling was affirmed [**26] by the Court of Special Appeals. Gadson v. State, 102 Md. App. 554, 650 A.2d 1354 (1994). We granted certiorari to consider the important question raised in this case. [*8]

   II.

   The narrow issue before us is whether Trooper Prince's detention of Gadson at the guard shack constituted an "unreasonable seizure" within the meaning of the Fourth Amendment of the United States Constitution and Article 26 of the Maryland Declaration of Rights. n3 Gadson does not contend that the dog sniff itself implicated his Fourth Amendment rights. [***6] n4 Nor does Gadson dispute that once Sandy the dog alerted Trooper Prince to the presence of illegal drugs in the vehicle, sufficient probable cause existed to support a warrantless search of the truck. See United States v. Dovali-Avila, 895 F.2d 206, 207 (5th Cir. 1990)(a "dog alert" is sufficient to create probable cause to conduct a warrantless vehicle search); In re Montrail M., 87 Md. App. 420, 437, 589 A.2d 1318, 1327 (1991)(trained drug dog's reaction "properly served as probable cause to search the vehicle" without a warrant), aff'd, 325 Md. 527, 601 A.2d 1102 (1992). Nor does Gadson argue that the initial stop at the guard shack was not justified as a way of screening potential visitors to the prison. 

 n3 Article 26 of the Maryland Declaration of Rights is in pari materia with the Fourth Amendment, and decisions of the Supreme Court interpreting the Fourth Amendment are entitled to great respect in construing Article 26. Little v. State, 300 Md. 485, 493 n.3, 479 A.2d 903, 907 n.3 (1984).

n4 A dog sniff of a vehicle conducted during a lawful detention is not a "search" within the meaning of the Fourth Amendment. United States v. Morales-Zamora, 914 F.2d 200, 203 (10th Cir. 1990); United States v. Dovali-Avila, 895 F.2d 206, 207 (5th Cir. 1990). Accord In re Montrail M., 87 Md. App. 420, 436-37, 589 A.2d 1318, 1326 (1991), aff'd, 325 Md. 527, 601 A.2d 1102 (1992). See also United States v. Place, 462 U.S. 696, 707, 103 S. Ct. 2637, 2644-45, 77 L. Ed. 2d 110, 121 (1983)(dog sniff of luggage does not constitute a "search" under Fourth Amendment).

[***7]

   Rather, Gadson's theory is that the detention he was required to endure in his truck after being ordered to turn off the engine and wait while Trooper Prince retrieved the dog and conducted the drug sniff constituted an unreasonable "seizure" with the meaning of the Fourth Amendment and Article 26. If Gadson is correct that the seizure was unreasonable, [*9] then everything that flowed from it, including the search of Gadson's truck and the contraband that was seized during the search, was tainted and the physical evidence should have been suppressed. See Ott v. State, 325 Md. 206, 225, 600 A.2d 111, 120 (noting that physical evidence obtained as the result of an illegal seizure is suppressed under the "fruit of the poisonous tree" doctrine), cert. denied, Maryland v. Ott, 506 U.S. 904, 113 S. Ct. 295, 121 L. Ed. 2d 219 (1992).

   There is no disputing that Trooper Prince's detaining of Gadson was a "seizure" under the Fourth Amendment. See Little v. State, 300 Md. 485, 493, 479 A.2d 903, 907 (1984)("It is well recognized that stopping an automobile and detaining its occupants constitutes a 'seizure' within the meaning of the Fourth and Fourteenth Amendments to the federal[***8] constitution, even though the purpose of the stop is limited and the resulting detention is quite brief.")(citing Delaware v. Prouse, 440 U.S. 648, 653, 99 S. Ct. 1391, 1396, 59 L. Ed. 2d 660, 667 (1979)). The only issue is the reasonableness of that seizure. See Little, 300 Md. at 493, 479 A.2d at 907 (noting that the Fourth Amendment only prohibits seizures that are unreasonable).

   III.

   As a general rule, the Fourth Amendment prohibits police from detaining an individual, even briefly, absent some "articulable reason" that the person seized is or has been engaged in criminal activity. Little, 300 Md. at 494 n.4, 479 A.2d at 907 n.4 (citing Brown v. Texas, 443 U.S. 47, 51, 99 S. Ct. 2637, 2640-41, 61 L. Ed. 2d 357, 362 (1979)). See also Florida v. Royer, 460 U.S. 491, 498, 103 S. Ct. 1319, 1324, 75 L. Ed. 2d 229, 236 (1983)(A person "may not be detained even momentarily without reasonable, objective grounds for doing so."); Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889, 906 [**27](1968)(holding that even limited seizures must be justified by "specific and articulable facts"); United States v. Torres, 65 F.3d 1241, slip op. at 6 (4th Cir. Oct. 4, [***9] 1995)(noting that investigative detention must be supported by reasonable, articulable[*10] suspicion). As Chief Justice Burger explained in Brown, when even a limited seizure "is not based on objective criteria, the risk of arbitrary and abusive police practices exceeds tolerable limits." 443 U.S. at 52, 99 S. Ct. at 2641, 61 L. Ed. 2d at 363.

   Here, the State does not contend that Trooper Prince possessed any articulable suspicion to justify detaining Gadson to conduct the drug sniff. Instead, the State relies on an exception to the general rule that allows police to briefly detain motorists at "checkpoints" even when there is no individualized suspicion of criminal activity. See Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 110 S. Ct. 2481, 110 L. Ed. 2d 412 (1990)(upholding required stop at sobriety checkpoints); United States v. Martinez-Fuerte, 428 U.S. 543, 96 S. Ct. 3074, 49 L. Ed. 2d 1116 (1976)(upholding required stop at checkpoint for illegal immigrants); Little, supra (upholding sobriety checkpoints). These "checkpoint" cases hold that a limited "seizure" of motorists is permissible even without individualized suspicion where the State's interests in conducting[***10] the stop outweigh the motorist's interest in avoiding a relatively minor intrusion of their privacy interests. See Sitz, 496 U.S. at 449-55, 110 S. Ct. at 2484-88, 110 L. Ed. 2d at 419-23; Martinez-Fuerte, 428 U.S. at 561-62, 96 S. Ct. at 3084-85, 49 L. Ed. 2d at 1130-31; Little, 300 Md. at 504-06, 479 A.2d at 912-14.

   In Little, this Court upheld the use of "sobriety checkpoints" where motorists were required to stop on a public highway and submit to a very brief police examination for signs of intoxication. We judged the reasonableness of the checkpoints "'by balancing [the] intrusion on the individual's Fourth Amendment interests against [the] promotion of legitimate government interests.'" Little, 300 Md. at 494, 479 A.2d at 907 (quoting Prouse, 440 U.S. at 654, 99 S. Ct. at 1396, 59 L.Ed.2d. at 667-68). Stressing the unintrusive nature of the stops, we found that the burden on the liberties of individual motorists was "minimal" and held, given the "State's compelling interest in detecting and deterring drunk driving," that[*11] the checkpoints were reasonable within the meaning of the Fourth Amendment and Article 26. Little, 300 Md. at 506, 479 A.2d at[***11] 913. Similarly, in Sitz, the Supreme Court found "the balance of the State's interest in preventing drunken driving ... and the degree of intrusion upon individual motorists who are briefly stopped, weighs in favor of the state program." 496 U.S. at 455, 110 S. Ct. at 2488, 110 L. Ed. 2d at 423.

   In short, the reasonableness of a checkpoint detention is determined by balancing the intrusion of the motorist's privacy interests against the societal need served by the seizure. In the instant case, the State contends that detaining Gadson for the few moments it took to perform the dog sniff was a "minimal intrusion" that was outweighed by the State's "compelling interest" in preventing the flow of illegal narcotics into state prisons. We certainly concur with the State, and with the Court of Special Appeals, that the State has a strong interest in keeping drugs out of its correctional facilities. We hold, however, that because the seizure in this case was not designed to serve that articulated interest, it was unreasonable.

   The undisputed testimony from the suppression hearing before Judge Thieme indicated that once Gadson learned of the dog sniff procedure, a quarter mile from the prison[***12] building, he told Trooper Prince that he wanted to leave the area rather than submit. At the hearing, Gadson testified as to what happened after he pulled up to the guard booth:

   "[GADSON]: Then all of a sudden this officer comes over to my truck and tells me your truck is subject to search, something of that nature. And I was like I'm not going in I don't want you searching my truck, you know, I'll just leave. You know I'm just here to leave money and everything. And [Trooper Prince] said no, no ... shut your vehicle off ... [and he went to] get his dog, Sandy is his name I think.

[**28] "[DEFENSE COUNSEL]: Did he detain you at that time?

 [*12]
"[GADSON]: Yeah, he told me to turn my truck off and everything.
 
Trooper Prince testified:
 
"[PRINCE]: I advised [Gadson] that I needed him to shut his truck off and the [dog] scan of the vehicle would be done. It was at this time Mr. Gadson stated to me that that was all right that he would leave.... He was advised ... that since he was already on State property that a [dog] scan of the vehicle would be done."
 
If the purpose of the dog sniff was, as the State contends, to prevent [***13]the flow of drugs into the prison, then that purpose was fully served once Gadson agreed to turn around a quarter mile away from the prison building. At that point, the checkpoint had accomplished its stated goal. Gadson intended to turn back without entering the House of Correction. Rather than allowing Gadson to turn around, however, Trooper Prince ordered him to shut off his truck and remain at the guard shack while the canine was brought out to perform the sniff.

   There is no doubt that the detention of Gadson by Trooper Prince in this case was aimed at serving a governmental interest. That interest, however, appears to have been the detection and seizure of illegal narcotics generally, rather than, as the State suggests, keeping drugs out of the prison. As already noted, that purpose was accomplished when Gadson asked to leave. The detection and seizure of narcotics generally, although clearly a legitimate governmental interest, is beyond the scope of the articulated purpose of the prison checkpoint. n5 

n5 We need not decide in this case whether a police checkpoint established for the express purpose of detecting and seizing illegal narcotics from vehicles on a public highway would violate the Fourth Amendment.

[***14]

    We believe there is a fundamental difference between the seizure in the case sub judice and those upheld in the police checkpoint cases relied on by the State. In Little and Sitz, supra, the articulated governmental interest was getting[*13] drunk drivers off the road. Clearly, if a drunk driver arriving at a sobriety checkpoint were allowed to turn back once arriving at the checkpoint, the State's interest would not be served because the intoxicated motorist would still be a public danger. n6 In Martinez-Fuerte, supra, the articulated state interest justifying checkpoint stops along public highways was the need to control the flow of illegal immigrants. Allowing vehicles to turn around once arriving at these checkpoints would likewise defeat the stated purpose, because illegal immigrants inside the vehicles would avoid detection and continue to be at large within the United States. On the other hand, the governmental interest asserted in the instant case, keeping illegal narcotics out of the House of Correction, is accomplished by turning away motorists who decline to submit to the dog sniffing procedures. Once the motorist decides to turn away from the prison[***15] checkpoint, a quarter mile away from the prison, the danger of drugs entering the prison evaporates. See 3 WAYNE R. LAFAVE, SEARCH AND SEIZURE § 10.7(b) at 46 (2nd ed. 1987)("A search without probable cause of a jail visitor is justified only by the need to prevent the introduction of contraband and weapons into the jail, and this is accomplished if the person declines to be searched and departs.").

n6 In Little, we noted that, under the police procedures at issue in that case, motorists were allowed to turn around before reaching the sobriety checkpoints, and that drivers who stopped at the checkpoint but refused to roll down their windows were allowed to proceed. 300 Md. at 506, 479 A.2d at 913-14. Although we stressed that these policies supported our conclusion that the checkpoint stops at issue were minimally intrusive, we did not decide whether checkpoints would be unconstitutional if drivers were not given these options to avoid the investigative purpose of the stop.

   In essence, the State asks[***16] us to expand its authority to detain motorists beyond the time when the stated goal of the detention has already been accomplished. We decline to do so. It is well established that a limited seizure of the kind at issue here may not be extended beyond the point where its purpose has been accomplished unless there is reasonable, articulable suspicion of criminal activity to justify further[*14] detention. See [**29] United States v. Ramos, 42 F.3d 1160, 1163 (8th Cir. 1994)(holding that continued detention after traffic stop for seatbelt violation was unreasonable after occupants produced valid drivers licenses and there was no objective reason to raise suspicion of criminal activity), cert. denied,     U.S.    , 115 S. Ct. 2015, 131 L. Ed. 2d 1013 (1995); United States v. Walker, 933 F.2d 812, 816 (10th Cir. 1991)(holding that once police officer had fully investigated the basis for traffic stop, it was unreasonable under the Fourth Amendment to extend the duration of the stop without reasonable suspicion of other criminal activity), cert. denied, 502 U.S. 1093, 112 S. Ct. 1168, 117 L. Ed. 2d 414 (1992); United States v. Guzman, 864 F.2d 1512, 1519-20 (10th Cir. 1988)(same); [***17] Munafo v. State, 105 Md. App. 662, 673, 660 A.2d 1068, 1073 (1995) (holding that once purpose of initial traffic stop for speeding and reckless driving had been fulfilled, continued detention of driver was unreasonable without articulable suspicion); Snow v. State, 84 Md. App. 243, 264-65, 578 A.2d 816, 826 (1990)(finding that extension of traffic stop detention was not justified without reasonable, articulable suspicion of criminal activity once reason for initial stop had been addressed); Powell v. State, 649 So. 2d 888, 889 (Fla. App. 1995)("A continued detention is illegal if the reason for the initial stop is resolved."). See also Florida v. Royer, 460 U.S. at 500, 103 S. Ct. at 1325, 75 L. Ed. 2d at 238 ("The scope of the detention must be carefully tailored to its underlying justification."). Cf. United States v. Morales-Zamora , 914 F.2d 200, 203 (10th Cir. 1990)(upholding a dog sniff of a vehicle as reasonable because it was completed before police had accomplished the purpose of the checkpoint stop).

   The opinion of the Court of Special Appeals in Snow, supra, is instructive. In Snow, state police stopped a vehicle for speeding on Interstate[***18] 95. After issuing Snow a warning for speeding, the officer then developed a "hunch" that there were drugs in the vehicle. Snow refused a request to search the vehicle. Nonetheless, the trooper detained Snow and a passenger long enough to conduct a drug scan of the vehicle using a trained police dog. The intermediate appellate court first[*15] held there was a "seizure" within the meaning of the Fourth Amendment when Snow was ordered to remain by the side of the road while the trooper conducted the dog sniff. Snow, 84 Md. App. at 259, 578 A.2d at 824. The court then found that the seizure was unreasonable because: 
 
"The intrusion permitted 'must be temporary and last no longer than is necessary to effectuate the purpose of the stop.' Florida v. Royer, 460 U.S. 491, 500, 103 S. Ct. 1319, 1325, 75 L. Ed. 2d 229[, 238] (1983). Here, the purpose of the stop was to warn or issue a ticket to Snow for speeding. That purpose was fully fulfilled, but the detention was continued. ... Although it is true that the duration of a stop is a factor in calculating whether an intrusion is within constitutional limitations ... the State must first demonstrate a reasonable, articulable suspicion[***19] that a crime is being or is about to be committed. The State, as we have stated above, did not adequately demonstrate a reasonable, articulable suspicion." (Citation omitted).
 
Snow, 84 Md. App. at 264-65, 578 A.2d at 826. Therefore, prolonging the detention was unreasonable. In sum, the court held that because police had already fulfilled the purpose of the initial stop when the officer issued a warning for speeding, and because the officer did not possess reasonable, articulable suspicion that Snow had drugs in his vehicle, there was no justification for further detention to conduct the dog sniff.

   Similarly, in Munafo, supra, the defendant was stopped for speeding and reckless driving. He produced a valid license and registration. Rather than ending the stop promptly and sending the defendant on his way, police officers detained him for a few minutes to investigate a "hunch" that he was in possession of narcotics. The Court of Special Appeals ruled that once the purpose of an initial traffic stop has been satisfied, "continued detention of a vehicle and its occupant(s) constitutes a second stop, and must be independently justified by reasonable suspicion." [***20] Munafo, 105 Md. App. at 670, 660 A.2d at 1072. Since there was no sufficient basis for such suspicion, the court held that contraband seized from Munafo's[*16] vehicle [**30] should have been suppressed. 105 Md. App. at 676, 660 A.2d at 1075.

   We believe this reasoning applies here. Trooper Prince testified, and the State concedes, that the purpose of detaining Gadson at the guard shack was to prevent drugs from entering the House of Correction. Once Gadson agreed to turn back a quarter mile from the prison, that goal was fulfilled. Continued detention of Gadson would have been justified only if Trooper Prince had "reasonable, articulable suspicion" that there were drugs in Gadson's truck. The State does not contend that Trooper Prince possessed any basis for such suspicion, and none appears on the record. n7 Therefore, we hold the detention was unreasonable. 

n7 Trooper Prince testified that he suspected that there were drugs in the vehicle once Gadson indicated he did not want the dog sniff to proceed. When asked why he refused to allow Gadson to turn around and leave, the officer testified:
 
"There were several reasons. If I was to let him go by the time I made my initial contact with Mr. Gadson two other vehicles had pulled up behind us, so therefore he couldn't back up. If he went forward he would be further into the Division of Correction[] property. His comment to me that, that's okay, I'll leave, brought to my suspicions that there was something in the vehicle that he did not want the dog to find. At that time I felt that there were narcotics in the vehicle. And I did not let him leave."
 
It is settled that a person's refusal to consent to a search or dog sniff may not be considered in determining whether the police had reasonable, articulable suspicion of criminal activity to justify continued detention. See United States v. Torres, 65 F.3d 1241, slip op. at 9 (4th Cir. Oct. 4, 1995); Snow v. State, 84 Md. App. 243, 260, 578 A.2d 816, 825 (1990).

[***21]

   IV.

   Although the State places great emphasis on the police checkpoint cases discussed in Part III, supra, we believe this case is also closely analogous to those cases involving searches and seizures required as a condition of entry into secure areas, such as prisons, military installations, or commercial aircraft. In those cases, courts have held that the government may require individuals to submit to a search or seizure prior to entry, but the individual retains the right to decline entry[*17] rather than submit. See United States v. Davis, 482 F.2d 893, 910-11 (9th Cir. 1973)(noting that airport screening searches are reasonable only if passengers are given the option of leaving rather than submitting); United States v. Miles, 480 F.2d 1217, 1219 (9th Cir.)(per curium)(noting that searches required as a condition of entrance to a secure area of a military base are reasonable as long as individuals are given the option of avoiding the search by electing not to seek entry), cert. denied, 414 U.S. 1008, 94 S. Ct. 369, 38 L. Ed. 2d 245 (1973); Jordan v. Wolke, 450 F. Supp. 213 (E.D. Wis. 1978)(noting that rule governing searches required of prison visitors "should also[***22] provide that visitors will be informed that they may refuse to be searched but will thereby forfeit the opportunity to visit each time they so refuse"); Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382, 384 (Pa. 1985)("A visitor comes to a prison voluntarily. If he or she refuses to be searched they may leave."); LAFAVE, supra, § 10.7(b) at 46 (Suspicionless search procedures at prison gates that are "reasonable under the Fourth Amendment as means of preventing certain conduct should not be extended to situations in which only detection rather than prevention is accomplished."). Contra United States v. Skipwith, 482 F.2d 1272 (5th Cir. 1973); People v. Turnbeaugh, 116 Ill. App. 3d 199, 451 N.E.2d 1016, 71 Ill. Dec. 862 (Ill. App. 1983).

   In Davis, supra, the Ninth Circuit considered the constitutionality of an airport search of a passenger's briefcase prior to boarding. The court found that pre-boarding screening of all passengers and carry-on luggage was reasonable under the Fourth Amendment as a way of preventing the smuggling of weapons or explosives onto aircraft. Davis, 482 F.2d at 910. The court stressed, however, that such "airport screening searches are valid only if they recognize the right [***23]  of a person to avoid search by electing not to board the aircraft." Davis, 482 F.2d at 910-11 (emphasis added)(footnote omitted). The court went on to explain:
 
"It is difficult to see how the need to prevent weapons and explosives from being carried aboard the plane could justify the search of a person who had elected not [**31] to board. [*18] Perhaps it could be argued that a compelled search might lead to the apprehension of a potential hijacker, eliminating or at least reducing the chance that he would try again. Compared to the degree of additional intrusiveness that compulsory searches involve, however, this possibility seems so slight as to be inconsequential. The risk of successful hijacking is not enhanced by allowing a potential passenger to avoid a search on a particular occasion by electing not to fly.
* * *

 
"Since a compelled search of persons who elect not to board would not contribute to barring weapons and explosives from the plane, it would serve only the purpose of apprehending violators of either the criminal prohibition against attempting to board an aircraft while carrying a concealed weapon, ... or some other criminal statute....

   In sum, [***24] airport screening searches of the persons and immediate possessions of potential passengers for weapons and explosives are reasonable under the Fourth Amendment provided each prospective boarder retains the right to leave rather than submit to the search." (Emphasis added).
 
Davis, 482 F.2d at 911-12. Although Davis addressed the question of whether a warrantless airport search of a prospective passenger was reasonable, we believe the reasoning applies with equal force in the instant case, where a limited seizure is at issue.

   More recent cases have upheld the constitutionality of x-ray screening at airports based on the theory of implied consent. In United States v. DeAngelo, 584 F.2d 46 (4th Cir. 1978), cert. denied, 440 U.S. 935, 99 S. Ct. 1278, 59 L. Ed. 2d 493 (1979), for example, the Fourth Circuit held that once a passenger voluntarily submitted his briefcase for x-ray examination, he no longer retained the option of avoiding further inspection of the case by electing not to board the flight. n8 Accord United[*19] States v. Pulido-Baquerizo, 800 F.2d 899 (9th Cir. 1986); United States v. Henry, 615 F.2d 1223 (9th Cir. 1980). 

n8 In addition to upholding the search on the basis of implied consent, the Fourth Circuit in United States v. DeAngelo, 584 F.2d 46 (4th Cir. 1978), also held that the search was justified as a means of avoiding an "immediate danger" to people in the airport. 584 F.2d at 47. During an initial x-ray scan of DeAngelo's briefcase, a large portion of the case appeared black on the x-ray screen. Thus, the court held that it was reasonable for security officers to conclude that DeAngelo may have been carrying explosives or a gun, either of which could have posed a danger to security officers and bystanders. Id. Therefore, the officers were justified in opening the case as a means of preventing a possible threat to security officers and bystanders. Id. No such public safety concerns were present in the instant case.

[***25]

   The key to these cases, however, was the fact that the passengers consented to the use of the x-ray scanning of their luggage by voluntarily surrendering it for x-ray examination. Accordingly, they are far different from the case sub judice, where Gadson never agreed to be detained for the dog sniff. Upon arriving at the guard shack and being told of the procedure, Gadson expressed a desire to leave rather than enter the House of Correction. Hence, there was no consent, express or implied. n9 

n9 The State places great emphasis on the three signs posted along the road leading up to House of Correction, warning that visitors were subject to search. Although the presence of the signs may bear on the overall reasonableness of the Fourth Amendment intrusion at issue here, we doubt their presence is sufficient to support a conclusion that Gadson consented, impliedly or otherwise, to be detained by the time he reached the guard shack. See State v. Salit, 613 P.2d 245, 253-54 (Alaska 1980)(holding that presence of signs warning that luggage would be searched at airport was insufficient to support warrantless search on the basis of implied consent).

[***26]

   In the final analysis, the pivotal question here is at what moment did Gadson reach the "point of no return;" that crucial instant when, like an airline passenger surrendering his bag for an airport x-ray scan, he consented to governmental intrusion into his privacy interests. The State would have us hold that, once Gadson reached the guard booth on the prison access road, a full quarter mile from the House of Correction, he had reached the point where he could no [**32] longer withdraw. We disagree. In our view, Gadson retained the[*20] right to turn around and leave until the point Trooper Prince informed him of the dog sniffing procedures. Upon learning that the dog sniff was required, Gadson, like the airline passenger who walks up to the airport gate and sees that he must submit his bags for an x-ray scan, retained the right to depart from the guard booth unfettered rather than submit.

   In holding that Gadson had no right to turn back from the guard booth, the Court of Special Appeals relied on Turnbeaugh, supra, in which the intermediate appellate court of Illinois held that a motorist who was stopped on a prison access road did not have the right to avoid a search of his vehicle[***27] by leaving the area. 451 N.E.2d at 1019. The Illinois court ruled "an option to depart rather than be searched would constitute a one-way street for the benefit of the party planning mischief, as there is no guarantee that he would not return later and be more successful." Id. We find this to be an inadequate justification for the detention. The risk that a drug smuggler might return after having been turned back from the prison guard booth and escape detection the second time is small, and we do not believe it justifies the additional intrusiveness of compulsory seizures of nonvisitors who have driven up to a checkpoint a full quarter mile from the prison itself. n10 See LAFAVE, supra, at 46.

n10 The State also argues that simply turning away visitors who decline to submit to the dog sniff is insufficient because the checkpoint is not always staffed with drug detection dogs. Therefore, a drug smuggler could simply drive up to the gate repeatedly, turning away each time a dog was being used, until he arrived at a time when no dog was present. We believe the solution to this problem is to continually staff the prison with drug detection dogs, not to authorize the suspicionless detention of motorists and passengers who indicate a preference to leave without entering the prison.

[***28]

   V.

   The articulated purpose of the detention at issue in this case was to prevent illegal drugs from entering the House of Correction. Once Gadson agreed to turn back from the guard[*21] booth, that purpose was wholly accomplished. Therefore, further detention could only be justified if Trooper Prince possessed reasonable, articulable suspicion that Gadson had engaged in criminal activity. Because there was no proper basis for such suspicion, the detention of Gadson was unreasonable under the Fourth Amendment and Article 26. Accordingly, the evidence discovered pursuant to that detention should have been suppressed. Therefore, we reverse.

 
JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED. CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO REMAND THIS CASE TO THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. COSTS TO BE PAID BY ANNE ARUNDEL COUNTY. 

DISSENTBY: MURPHY

DISSENT:  
Dissenting Opinion by Murphy, C.J., in which Rodowsky, J., joins.
 
Filed: December 7, 1995
 
In my view, the state's interest in preventing contraband from entering prison facilities justifies the minimal intrusion at issue here. I, therefore, respectfully[***29] dissent.

   As the majority correctly notes, this Court and the Supreme Court have found limited detentions of motorists to be permissible under the Fourth Amendment. See Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 110 S. Ct. 2481, 110 L. Ed. 2d 412 (1990); Little v. State, 300 Md. 485, 479 A.2d 903 (1984). In such cases, no particularized suspicion of wrongdoing is required when the officer conducting the detention is governed by appropriately drawn regulations and the state's interest in conducting the detention outweighs the motorist's privacy interest. See Sitz, supra, 496 U.S. at 449-55. I disagree with the majority's conclusion that the second of these requirements is not met.

   The privacy interests in this case are far more attenuated than even the minimal interests at issue in Sitz. In addition to their short duration, the detentions at issue here involve a[*22] very narrowly defined class of individuals. [**33] In Sitz, the Supreme Court upheld the use of drunk-driving checkpoints where every driver travelling on a public highway was stopped and subjected to a temporary seizure. Id. In contrast, the temporary detention at issue in this case is limited[***30] to persons who drive 300 hundred yards up a private prison access road to a guard house, intending to enter the prison grounds and having been warned by three separate signs posted on the access road that they will be subject to search and that drug dogs may be used for this purpose. Members of this limited subset of the driving population are then detained for approximately one minute while a drug sniffing dog walks around the outside of their car.

   The majority asserts that the state has no interest sufficient to counterbalance this minimal intrusion. The majority distinguishes Sitz by asserting that "if a drunk driver arriving at a sobriety checkpoint were allowed to turn back once arriving at the checkpoint, the State's interest would not be served because the intoxicated motorist would still be a public danger." In contrast, the majority assumes that the danger of drugs entering the prison ends once a driver manifests an intent to leave the prison property.

   I disagree with this conclusion. Because the drug-detecting dogs are not always present at every gate on every day, an individual attempting to introduce contraband into a prison facility will only be subject to detection[***31] some of the time. Under the majority's holding, Gadson now has a risk-free opportunity to determine whether drug dogs are in use on any particular day. Gadson can approach the gate house, "change his mind" about visiting the prison when he learns that a dog is in use, and return another day. When no dog is in use, Gadson can proceed onto the prison grounds without fear.

   The question before us is whether the state's interest in preventing this sort of repeated attempt to introduce drugs into its prison facilities justifies the minimal, temporary detention of those who approach the guard house and change their mind about entering the prison once they learn that a drug dog is in use. The majority devalues the state's interest by[*23] asserting that the state should acquire more drug detection dogs and thereby ensure that all gates to all prisons are covered on every day. In every Fourth Amendment decision, a citizen's privacy interest could have been more fully protected had the state adopted a more expensive alternative. See Skinner v. Railway Labor Exec. Ass'n, 489 U.S. 602, 629 n.9, 103 L. Ed. 2d 639, 109 S. Ct. 1402 (1989) (stating that "judges engaged in post hoc evaluations[***32] of government conduct 'can almost always imagine some alternative means by which the objectives of the [government] might have been accomplished'") (quoting United States v. Montoya de Hernandez, 473 U.S. 531, 542, 87 L. Ed. 2d 381, 105 S. Ct. 3304 (1985)). The alternatives available to the state are not before us, however, and we must balance the means actually chosen to protect the state's interest against the privacy interest asserted by the defendant. I believe that the state's interest in preventing repeated attempts to introduce drugs into its prisons justifies the minimal, temporary detention at issue in this case.

   For the reasons stated, I would affirm the judgment of the Court of Special Appeals.

   Judge Rodowsky has authorized me to state that he concurs with the views expressed herein. 

NATASHA WILLS v. RANDY W. JONES 
No. 23, September Term, 1995
 
COURT OF APPEALS OF MARYLAND
 
340 Md. 480; 667 A.2d 331; 1995 Md. LEXIS 153

 November  15, 1995, Filed

   PRIOR HISTORY: [***1] Certiorari to the Court of Special Appeals (Circuit Court for  Anne Arundel  County). James C. Cawood, Jr., JUDGE.

DISPOSITION: JUDGMENT OF THE COURT OF SPECIAL APPEALS VACATED; CASE REMANDED TO THAT COURT WITH DIRECTIONS TO REMAND THE CASE TO THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION; COSTS TO BE EQUALLY DIVIDED BETWEEN THE PARTIES.

CORE TERMS:  impoverished, child support, incarceration, impoverishment, guidelines, support obligation, child support award, material change of circumstance, prisoner, Family Law Article, child support obligation, actual income, calculated, modify, material change, incarcerated, conscious, modification, underemployed, unemployed, mortgage, purposefully, cessation, avoiding, earnings, prison, adequate resources, own free, unemployment, compelled

COUNSEL: ARGUED BY Angela M. Eaves, Assistant Attorney General, (J. Joseph Curran, Jr., Attorney General; C.J. Messerschmidt, Assistant Attorney General, all on brief) of Baltimore, MD, FOR PETITIONER.
 
ARGUED BY Hillary Galloway Davis (J. Edward Davis, both on brief) of Towson, MD, FOR RESPONDENT.

JUDGES: ARGUED BEFORE Murphy, C.J.; Eldridge, Rodowsky, Chasanow, Karwacki, Bell, and Raker, JJ.

OPINIONBY: MURPHY

OPINION: [*483]
 
[**332] OPINION BY MURPHY, C.J.
 
Filed: November 15, 1995
 
This case requires us to determine whether penal incarceration constitutes a material change of circumstance sufficient to justify the modification of a child support award under Maryland Code (1984, 1991 Repl. Vol., 1994 Supp.) § 2-104 of the Family Law Article, and whether an incarcerated parent should be considered voluntarily impoverished under[***2] § 12-204(b) of that Article. We hold that a prisoner's incarceration may constitute a material change of circumstance if the effect on the prisoner's ability to pay child support is sufficiently reduced due to incarceration. Moreover, we conclude that a prisoner is not "voluntarily impoverished" unless he or she committed a crime with the intent of going to prison or otherwise becoming impoverished. [*484]

   I

   A

   As this Court has repeatedly recognized, one of the most fundamental duties of parenthood "is the obligation of the parent to support the child until the law determines that he is able to care for himself." Carroll County v. Edelmann, 320 Md. 150, 170, 577 A.2d 14 (1990); see Middleton v. Middleton, [**333] 329 Md. 627, 631, 620 A.2d 1363 (1993) (citing numerous decisions from this Court). In accordance with this obligation, § 5-203(b)(1) of the Family Law Article provides that parents "are jointly and severally responsible for the child's support, care, nurture, welfare, and education . . . ." Title 12 of that Article gives Maryland courts the authority to award child support to a custodial parent or child support agency. See § 12-101(a). In limited circumstances, the courts[***3] also have authority to modify an existing child support award. § 12-104.

   The child support guidelines codified at §§ 12-201 to 12-204 of the Family Law Article provide the method of analysis used to determine the amount of child support awarded in each case. Section 12-202(a)(2) makes the use of these guidelines mandatory unless the result would "be unjust or inappropriate in a particular case." When a court departs from the child support guidelines, it must make a written finding stating the amount of support that would have been ordered under the guidelines, how the court's order varies from the guidelines, and how this variance serves the best interests of the child. Id.

   In general, the child support guidelines "establish[] child support obligations based on estimates of the percentage of income that parents in an intact household typically spend on their children." Voishan v. Palma, 327 Md. 318, 322-23, 609 A.2d 319 (1992). In Voishan, we discussed in detail the process of using the guidelines to fix a parent's support obligation. See id. at 323-24. For the present case, we reiterate that the obligation is calculated by determining each parent's monthly income, [***4] using the table at § 12- [*485]204(e) to determine the parents' combined monthly support obligation, and dividing this obligation between the two parents in proportion to their relative incomes. Id.

   Because the parents' income levels determine the amount of support that a child receives, it is imperative to accurately assess the parents' respective incomes. It is equally imperative that parents be prevented from avoiding their support obligations by purposefully reducing their income. Thus, § 12-201(b)(2) provides that a parent's "potential income" may be used to calculate the amount of the support obligation if the parent is "voluntarily impoverished." A parent's potential income is defined as "income attributed to a parent determined by the parent's employment potential and probable earnings level based on, but not limited to, recent work history, occupational qualifications, prevailing job opportunities, and earnings levels in the community." § 12-201(f).

   B

   Randy Jones (Jones) and Natasha Wills (Wills) are the parents of Rhondell Durell Jones (Rhondell), born on October 5, 1982. Jones was incarcerated on September 23, 1992, when he began serving a mandatory ten-year sentence. [***5]The nature of the crime for which Jones was incarcerated is not disclosed in the record and is not relevant to our decision. At the time of his incarceration, Jones was obligated to pay Wills $50 per week in child support. Following his incarceration, Jones's cash income dropped to twenty dollars per month. Jones appears to have no assets. If Jones's support obligation remains at $50 per week throughout his incarceration, he will be approximately $26,000 in arrears by the time of his release.

   On May 20, 1993, Jones filed in the Circuit Court for Anne Arundel County a motion to "Stay Enforcement of Child Support Obligation." Wills filed an answer opposing Jones's motion, and a hearing was held before a master on September 14, 1993. The master recommended that Jones's motion be denied, finding that his incarceration was "self-induced and voluntary" and therefore did not justify modifying Jones's [*486] support obligation. The circuit court (Cawood, J.) disagreed and granted Jones's motion. The court found that Jones had not voluntarily impoverished himself through commission of a crime and his subsequent incarceration.

   The Court of Special Appeals affirmed the circuit court's judgement. [***6]Wills v. Jones, 102 Md. App. 539, 650 A.2d 736 (1994). In her petition for writ of certiorari, which we granted, Wills argues that Jones's support obligation should not be modified because an [**334] incarcerated parent should be considered "voluntarily impoverished" within the meaning of § 12-204 of the Family Law Article.

   II

   It is unclear from the record precisely what relief the circuit court granted by its order "staying enforcement" of Jones's child support obligation. Wills contends that the circuit court terminated Jones's obligation to support his child, while Jones contends that the circuit court merely suspended his support obligation under its authority to modify child support awards during the time he was in prison.

   The confusion arises, at least in part, from the label under which Jones originally filed his petition. By its terms, Jones's original motion asked the circuit court to stay enforcement of the obligation during his stay in prison, and made no request to modify the amount of that obligation. Because Jones originally filed his petition pro se, however, the lower courts did not strictly hold him to the language of his original petition. As the Court[***7] of Special Appeals noted, "athough [Jones's] motion was for a stay of enforcement of his child support obligation, it is clear from the record that what he really sought (and what [Wills] and the trial judge understood he was requesting) was a cessation or suspension of the support obligation itself while he was incarcerated." Wills, supra, 102 Md. App. at 552.

    If, as Wills contends, the circuit court's order was intended to terminate Jones's obligation to pay child support, its authority to do so cannot arise from § 12-104(a). Although [*487] it is conceivable that a child support award could be modified to $0 per month if a parent's income were low enough or equitable considerations demanded it, the obligation to pay child support would remain. Because the obligation remains, a child support award of $0 can be increased when future circumstances may justify an increase or automatically increased when Jones is released on work release or released from prison. Section 12-104(a), however, contains no provision allowing a court to entirely terminate a parent's obligation.

   For the purposes of this case, we will assume that the intermediate appellate court was correct in[***8] characterizing the circuit court's order as a modification of child support under § 12-104(a). Because we decline to create a per se rule freeing incarcerated parents with no assets from their child support obligations, we will remand the matter to the circuit court to determine whether Jones is entitled to a modification of child support under § 12-104(a). If so, the circuit court must determine the level of Jones's child support obligation by applying the child support guidelines, or provide an explanation for departing from those guidelines as required by § 12-202(a)(2)(iv).

   III

   A

   While we agree with the Court of Special Appeals that incarceration alone does not constitute "voluntary impoverishment," we undertake to clarify the role of voluntary impoverishment in the context of a motion to modify a child support award under § 12-104(a) of the Family Law Article. That section provides that "the court may modify a child support award subsequent to the filing of a motion for modification and upon a showing of a material change of circumstance." Applying this section, the Court of Special Appeals determined that "with regard to petitions for child support modification, 'voluntary[***9] impoverishment' does not constitute a material change of circumstances." Wills v. Jones, supra, 102 Md. App. [*488] at 548. In our view, however, the question of whether a material change of circumstance has occurred is distinct from the issue of whether a parent is voluntarily impoverished.

   Before a court can consider the level of support to which a child is entitled under the guidelines, it must determine that it has authority to grant the requested motion. Section 12-104 provides the Maryland courts with authority to modify a child support award only when (1) there has been a change of circumstance and (2) the change is material. See § 12-104(a). These limitations upon [**335] the courts' authority to modify child support awards tend to inhibit the filing of a deluge of motions seeking modification of child support orders.

   The "material change of circumstance" requirement limits the circumstances under which a court may modify a child support award in two ways. First, the "change of circumstance" must be relevant to the level of support a child is actually receiving or entitled to receive. n1 Second, the [*489] requirement that the change be "material" limits a court's authority to situations [***10]where a change is of sufficient magnitude to justify judicial modification of the support order. See Walsh v. Walsh, 333 Md. 492, 503, 635 A.2d 1340 (1994). In making this threshold determination that a material change of circumstance has occurred, therefore, a court must specifically focus on the alleged changes in income or support that have occurred since the previous child support award. Cf. id. at 501 ("In determining if there is a material change of circumstances, a court must first look to the circumstances at the time of the original support order."). It should generally be unnecessary to inquire into a parent's motivations, intentions, or income-earning capacity, because the court can focus on the specific alleged changes to the income sustained by each parent. n2 

n1 There are two changes in circumstance which are obviously "relevant" to modification of a child support award. First, a relevant change in circumstances may occur upon the passage of some event causing the level of support a child actually receives to diminish or increase. For example, in Walsh v. Walsh, 333 Md. 492, 635 A.2d 1340 (1994), a divorce decree required the husband to pay one-half of the mortgage on the home in which his children were residing. When the husband agreed to sell his interest in the home to his ex-wife, so that his mortgage obligation would cease, we noted that the question of whether the cessation of the husband's obligation to pay one-half of the mortgage was a material change in circumstances depended upon "whether the [obligation] . . . was in some manner a form of child support." Id. at 503. If so, the cessation of the obligation altered the amount of support the children would receive, and would be a material change if the mortgage payments were sufficiently large. Id. Conversely, if no part of the husband's mortgage payment were child support, the level of support received by the children would not diminish, and thus the cessation of the payment by itself would not have met the "relevancy" requirement.

   The second circumstance is that before us here, where a change has occurred that affects the income pool used to calculate the support obligations upon which a child support award was based. An example of such a change in circumstance would be where one parent loses his or her employment. In this case, Jones's incarceration currently makes it impossible for him to maintain employment, and clearly meets the "relevance" inquiry.

   We enumerate these two categories of "relevant" circumstances merely as an illustration. We do not intend to preclude lower courts from finding other kinds of changes in circumstance to be relevant to modification of a child support award.

[***11] 

n2 In Walsh, we found that the court should inquire into the purposes served by the mortgage payment in determining whether it should be characterized as child support. Walsh, supra, 333 Md. at 503. To some degree, this does require an inquiry into the parents' intentions. This inquiry was limited to the intention behind a single provision in a divorce agreement, however, and will be much more limited than the broad-ranging inquiry required to determine if a parent is voluntarily impoverished.

   To determine whether a parent is voluntarily impoverished, on the other hand, a court must inquire as to the parent's motivations and intentions. See, e.g., Goldberger v. Goldberger, 96 Md. App. 313, 327, 624 A.2d 1328 (1993) (noting that "a parent shall be considered 'voluntarily impoverished' whenever the parent has made the free and conscious choice, not compelled by factors beyond his or her control, to render himself or herself without adequate resources," and listing a ten-part test for making this determination), cited in Petrini v. Petrini, 336 Md. 453, 465-66, 648 A.2d[***12] 1016 (1994). In [*490] addition, once a parent is found to be voluntarily impoverished, the court must assess the parent's income-earning potential. See §§ 12-201(b)(2) & 12-201(f) of the Family Law Article (requiring assessment of potential income and enumerating factors to be considered in determining potential income). Both of these inquiries go beyond what is necessary to determine whether a material change of circumstance has occurred.

   If we were to adopt the rule that "'voluntary impoverishment' does not constitute a [**336] material change of circumstances," Wills, supra, 102 Md. App. at 548, the result would be to leave the voluntarily impoverished parent's child support obligation at a level determined by the salary from his or her last employment. Section 12-201(f) of the Family Law Article, however, defines potential income as "income attributed to a parent determined by the parent's employment potential and probable earnings level based on, but not limited to, recent work history, occupational qualifications, prevailing job opportunities, and earnings levels in the community." (emphasis added). By its language, although a court may consider additional factors, § 12-201(f) [***13]requires a court at least to consider all of the enumerated factors in determining a parent's potential income. If "voluntary impoverishment" always precludes a finding that a material change of circumstance has occurred, a parent's recent work history alone will determine the level of income attributed to the voluntarily impoverished parent. For this reason, the question of a parent's "voluntary impoverishment" must be separated from the determination that a material change of circumstance has occurred.

   Because "voluntary impoverishment" should not be addressed until after the court determines that a material change in circumstance has occurred, the issue of voluntary impoverishment need never be reached in cases where a parent's underemployment does not significantly alter the parent's ability to meet the child support obligation. In this case, it appears that Jones has no assets and he currently [*491] earns only $20 per month. His incarceration is a temporary material change of circumstance.

   B

   Once a court finds that a material change in circumstance has occurred, it must apply the guidelines in §§ 12-202 to 12-204 of the Family Law Article to determine the level of support to[***14] which the child is currently entitled. § 12-202(a). While a parent's support obligation is usually determined by the parent's adjusted actual income, § 12-204(a), "if a parent is voluntarily impoverished, child support may be calculated on a determination of potential income." § 12-204(b). Wills argues that Jones should be considered voluntarily impoverished, and that as a result his support award should remain at its current level. In this regard, Wills contends that Jones is voluntarily impoverished because he "made the free and conscious choice, not compelled by factors beyond his control, to commit a crime punishable by a period of incarceration." According to Wills, so long as Jones's criminal behavior was within his control, his incarceration was a foreseeable consequence of that behavior, and therefore his incarceration was "voluntary" regardless of whether he actually sought to be incarcerated. Wills maintains that to find Jones's incarceration "involuntary" would be to "shift the blame for the individual's situation to the state, rather than recognizing the state's duty to its citizens to enforce its criminal laws." Incarcerated parents, Wills argues, should not be rewarded[***15] for their criminal acts by having their child support obligations reduced or terminated. n3 

n3 Because of the confusion over whether the circuit court's award suspends Jones's obligation or terminates it, it is unclear whether Wills asserts these arguments only against a complete termination of Jones's support duties, or whether she asserts the same arguments against modifying Jones's support payments. As her primary argument is that Jones should be considered voluntarily impoverished and his level of support should not be changed as a result of his voluntary impoverishment, we assume that Wills also opposes reducing Jones's support payments as a result of his reduced present income.

[*492]

   Jones, on the other hand, proposes that we adopt the reasoning in Goldberger v. Goldberger, supra. He says that our inquiry must focus on whether he made a free and conscious choice to render himself without adequate resources. He argues that he did not seek incarceration, made no conscious choice to render himself[***16] without resources, and therefore should not be considered voluntarily impoverished.

   Although Wills and Jones raise many arguments based upon underlying policy considerations, the question before us is primarily one of statutory construction. In this inquiry, "the beginning point of statutory [**337] construction is the language of the statute itself." Morris v. Prince George's County, 319 Md. 597, 603, 573 A.2d 1346 (1990). The term "voluntary impoverishment" is not defined in the statute, although two separate sections of the guidelines use the term. In § 12-201(b)(2), "income" is defined as the "potential income of a parent, if the parent is voluntarily impoverished." The term "voluntarily impoverished" is also used in § 12-204(b)(1), which provides that "if a parent is voluntarily impoverished, child support may be calculated based on a determination of potential income."

   To ascertain the meaning ascribed to "voluntarily impoverished" by the legislature, we "are free to look at the context within which statutory language appears." Morris, supra, 319 Md. at 604. The child support guidelines were introduced into the Maryland Legislature in 1989 as Senate Bill 49 and became [***17]ch. 2 of the Acts of 1989. As originally proposed, § 12-201 defined "income" as "potential income . . . if the parent is unemployed or underemployed ." (emphasis added). The change from "unemployed or underemployed" to "voluntarily impoverished" in § 12-201(b)(2) was originally proposed by the House Judiciary Committee following its consideration of the Senate bill, and was incorporated into the Senate's version of the enacted bill. See 1 Journal of Proceedings of the House of Delegates of Maryland 587-88 (1989); 1 Journal of Proceedings of the Senate of Maryland 703-04 (1989). [*493]

   As originally proposed, § 12-204(b)(1) provided that "if a parent is voluntarily unemployed or underemployed, child support shall be calculated based on a determination of potential income." The House Judiciary committee proposed replacing "voluntarily unemployed or underemployed" with "voluntarily impoverished," and this change was accepted into the version of the bill originally passed by the House of Delegates. See 1 Journal of Proceedings of the House of Delegates of Maryland 590 (1989). Although the Senate originally rejected this change, see 1 Journal of Proceedings of the Senate of[***18] Maryland 705-06, the replacement was adopted by the conference committee when the two versions of the bill were reconciled. See 2 Journal of Proceedings of the Senate of Maryland 757 (1989). In addition, the final bill replaced the original requirement that an involuntarily impoverished parent's obligation "shall" be calculated using his or her potential income with an option that the parent's obligation "may" be calculated based on the parents' potential income. See id.

   The meaning of "voluntary impoverishment" as used in the child support guidelines has not been previously addressed by this Court. The Court of Special Appeals has sought to define the term on several occasions. In John O. v. Jane O., 90 Md. App. 406, 601 A.2d 149 (1992), it interpreted the legislative history of § 12-201(b)(2) as an indication that the Legislature intended "that the courts be able to consider whether a person had purposely taken a reduction in salary to avoid his or her support obligation." Id. at 420 n.5. As a result, it defined "voluntary impoverishment" to require that the voluntarily impoverished parent purposefully intend to avoid his or her child support obligation. Id. [***19]at 421 ("In the context of a divorce proceeding, the term 'voluntarily impoverished' means: freely or by an act of choice, to reduce oneself to poverty or deprive oneself of resources with the intention of avoiding child support or spousal obligations.").

   In Goldberger, supra, 96 Md. App. at 326-27, the Court of Special Appeals expanded its definition of "voluntary impoverishment" to include those who were purposefully [*494] impoverished but not purposefully seeking to avoid paying child support. The court found that "[a] parent who chooses a life of poverty before having children and makes a deliberate choice not to alter that status after having children is also 'voluntarily impoverished.'" Id. at 326. The court concluded that "a parent shall be considered 'voluntarily impoverished' whenever the parent has made the free and conscious choice, not compelled by factors beyond his or her control, to render himself or herself without adequate resources." Id. at 327.

   Our review of the language and legislative history of the child support guidelines [**338] leads us to conclude that the legislature intended that a parent's support obligation can only be based on potential income when [***20]the parent's impoverishment is intentional. In addition to replacing the phrase "unemployed or underemployed" with the word "impoverished," the final version of the guidelines specifically added the word "voluntary" to both instances where a parent's potential income can be calculated based upon the parent's impoverishment. See §§ 12-201((b)(2), 12-204(b)(1). As the Court of Special Appeals reasoned in John O., supra, 90 Md. App. at 421, the addition of the word "voluntarily" adds an element of intent.

   The inquiry into the parent's intent adopted in John O., however, is too narrow. In determining whether a parent is voluntarily impoverished, the question is whether a parent's impoverishment is voluntary, not whether the parent has voluntarily avoided paying child support. The parent's intention regarding support payments, therefore, is irrelevant. It is true that parents who impoverish themselves "with the intention of avoiding child support . . . obligations" are voluntarily impoverished. John O., supra, 90 Md. App. at 421. But, as the court recognized in Goldberger, supra, 96 Md. App. at 326-27, a parent who has become impoverished by choice is[***21] "voluntarily impoverished" regardless of the parent's intent regarding his or her child support obligations.

   [*495] The "voluntariness" of an action and the meaning of "voluntary" in a statute have previously been addressed by this Court in several contexts. For an action to be "voluntary," we have consistently required that the action be both an exercise of unconstrained free will and that the act be intentional. See, e.g., Lowenthal v. Rome, 294 Md. 277, 282-83, 449 A.2d 411 (1982), cert. denied, 460 U.S. 1012, 75 L. Ed. 2d 481, 103 S. Ct. 1253 (quoting dictionary definitions of "voluntary" that combine the characteristics of free will and intent, and applying these definitions to determine whether an appearance in a foreign court was voluntary); Nichols v. Nichols, 181 Md. 392, 394, 30 A.2d 446 (1943) (noting, in determining whether a separation prior to divorce was voluntary, that "the word 'voluntary' signifies willingness. When used in reference to an act of an individual, it means that he acted of his own free will") (quotations omitted); cf. Black's Law Dictionary 1413 (6th ed. 1990) (defining "voluntary" as "done by design or intention," "proceeding from the free and unrestrained will of the person," [***22] or "produced in or by an act of choice").

   We have addressed the question of "voluntariness" at length in the context of whether an employee left her past employment voluntarily, and therefore should be barred from collecting unemployment benefits. Allen v. Core Target Y. Prog., 275 Md. 69, 338 A.2d 237 (1975). There, as here, the term "voluntarily" was not defined by the statute. Id. at 77. After reviewing the common usage of "voluntary" as defined in a dictionary, we found that 
 
the phrase "due to leaving work voluntarily" has a plain, definite and sensible meaning, free of ambiguity; it expresses a clear legislative intent that to disqualify a claimant from benefits the evidence must establish that the claimant, by his or her own choice, intentionally, of his or her own free will, terminated the employment.
 
Id. at 79. Following this definition, we found that an employee who had been discharged from her job because she was unable or unwilling to perform it properly could not be said to have left "voluntarily." Id. at 80; see also Sinai Hospital of Baltimore, Inc. v. Department [*496] of Employment & Training, 309 Md. 28, 34-35, 522 A.2d 382 (1987) (quoting[***23] Allen's definition of "voluntary" in a similar context).

   Our inquiry here is similar to that made in the unemployment context. In Allen, we noted that "if an employee is discharged for any reason, other than perhaps for the commission of an act which the employee knowingly intended to result in his discharge, it cannot be said that his or her unemployment was due to 'leaving work voluntarily.'" Allen, supra, 275 Md. at 79 (emphasis added). Thus, misconduct on the part of an employee is not sufficient to deem a subsequent termination of employment "voluntary" even if the employee's termination was a foreseeable result of [**339] the misconduct. See id. at 80. To determine whether Jones's impoverishment is "voluntary," a court must similarly ask whether his current impoverishment is "by his . . . own choice, intentionally, of his . . . own free will." Allen, supra, 275 Md. at 79. The contention that Jones's incarceration and subsequent impoverishment should be considered "voluntary" because he made the free and conscious choice to commit a crime stretches the meaning of the word beyond its acceptable boundaries. Jones's incarceration can only be said to be "voluntary" [***24] if it was an intended result.

   The contentions raised by Wills, therefore, are without merit. Our prior decisions rest upon an implicit belief that the foreseeability of an action's possible consequences is not sufficient to conclude that the actor brought those consequences about "voluntarily." n4 A finding that Jones is not voluntarily impoverished in no way "blames" the state for Jones's incarceration. The child support guidelines do not assign "blame," they assign child support obligations based upon a parent's income. Similarly, our decision gives Jones no "reward" for his criminal action. Even putting aside the loss [*497] of liberty and other negative aspects of incarceration, a prisoner's child support obligation should be reduced only in proportion to the prisoner's reduced ability to pay. The prisoner's loss of income and subsequent reduced child support obligation cannot make the prisoner richer than before the commission of the crime. For these reasons, we hold that a prisoner is only "voluntarily impoverished" as a result of incarceration if the crime leading to incarceration was committed with the intention of becoming incarcerated or otherwise impoverished.

n4 We note, however, that a court may consider the likelihood of a prisoner's arrest and conviction following the commission of his or her particular crime as evidence regarding the prisoner's intentions.

[***25]

   C

   The circuit court's holding rests upon an implicit determination that Jones did not commit the crime leading to his incarceration with the intention of avoiding his child support obligation. Consistent with this position, the circuit court on remand must calculate Jones's current support obligation based upon his current actual income. § 12-204(a). The circuit court's only explicit finding as to Jones's actual income was to note that "he has no assets and no ability to pay anything." This seems to ignore the $20 per month income with no offsetting expenses. Whether any part of that $20 should go toward child support does not seem to be addressed.

    The determination of the actual income received by a parent is ultimately a factual question within the province of the circuit court. Md. Rule 8-131(c). At the same time, however, the circuit court is required to make this determination in accordance with § 12-201(c)(1) of the Family Law Article, which defines "actual income" as "income from any source." Section 12-201(c)(3) lists fifteen items that must be included in a parent's actual income, including salaries and wages, interest, dividend, and pension income, expense reimbursements[***26] or in-kind payments, and various government benefits. In addition, § 12-201(c)(4) provides an additional list of items that may be considered actual income "based on the circumstances of the case," including gifts. If the circuit court, when calculating Jones's actual income, finds the resulting support [*498]obligation unjust or inappropriate, it may order support of $0 during Jones's incarceration.
 
JUDGMENT OF THE COURT OF SPECIAL APPEALS VACATED; CASE REMANDED TO THAT COURT WITH DIRECTIONS TO REMAND THE CASE TO THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION; COSTS TO BE EQUALLY DIVIDED BETWEEN THE PARTIES. 

                       
SANDRA LEE HAUPT v. STATE OF MARYLAND 
No. 132, SEPTEMBER TERM, 1994
 
COURT OF APPEALS OF MARYLAND
 
340 Md. 462; 667 A.2d 179; 1995 Md. LEXIS 154

 November  14, 1995, FILED

   PRIOR HISTORY: [***1] Appeal from the Circuit Court for  Anne Arundel  county pursuant to certiorari to the Court of Special Appeals. Lawrence Rushworth, JUDGE.

DISPOSITION: JUDGMENT AFFIRMED WITH COSTS.

CORE TERMS:  third-party, notice, third party, treasurer, claimant, underlying action, injury to person, indemnification, notice requirement, cross-claim, summons, day clock, Maryland Rule, written claim, counterclaim, interpreting, sets forth, occurrence, clear legislative, begins to run, begin to run, evident, third party action, cause of action, filed suit, ambiguous, uninjured, subtitle, concise, Maryland Tort Claims Act

COUNSEL: Jonathan P. Stebenne (The Law Offices of J. Owen Bracken, Jr., on brief) of Baltimore, MD, FOR APPELLANT.
 
Omar V. Melehy, Assistant Attorney General, (J. Joseph Curran, Jr., Attorney General, all on brief) of Baltimore, MD, FOR APPELLEE.

JUDGES: Murphy, C. J. Eldridge, Rodowsky, Chasanow, Karwacki, Bell, Raker, JJ.

OPINIONBY: BELL

OPINION:  
[*465] [**180] OPINION BY Bell, J.
 
FILED: November 14, 1995
 
Once again we are required to construe the restrictions on actions provision, § 12-106 of the Maryland Tort Claims Act ("MTCA"), Maryland Code (1984, 1993 Repl. Vol.), § 12-101 et. seq. of the State Government Article. n1 On this occasion, we address an issue left open by Leppo v. State Highway Administration, 330 Md. 416, 431, 624 A.2d 539, 546 (1993), the most recent case to construe § 12-106: When does the 180-day clock begin to run in the case of third-party claims? 

n1 As relevant to this case, Maryland Code (1984, 1993 Repl. Vol.) § 12-106 of the State Government Article provided:
 
(a) Scope of section. - This section does not apply to a claim that is asserted by cross-claim or counterclaim.

(b) Claim and denial required. - A claimant may not institute an action under this subtitle unless:

(1) the claimant submits a written claim to the Treasurer or a designee of the Treasurer within 180 days after the injury to person or property that is the basis of the claim;

(2) the Treasurer or designee denies the claim finally; and

(3) the action is filed within 1 year after the claim is denied finally or 3 years after the cause of action arises, whichever is later.
 
By Chapter 564, 1994 Maryland Laws, the General Assembly amended § 12-106. By virtue of that amendment, see 1994 Cumulative Supplement, subsection (a) now provides:
 
(a) Scope of section. - This section does not apply to a claim that is asserted by cross-claim, counter claim, or third-party claim. 
 
and subsection (b) (3) now requires that the action be "filed within 3 years after the cause of action arises." Because no claim is made that the statute as amended applies to the issue sub judice and "[a] statute is presumed to have prospective effect only, unless there is a clear legislative intent that the statute operate retroactively," Songer v. State, 327 Md. 42, 51, 607 A.2d 557, 562 (1992) citing Spielman v. State, 298 Md. 602, 607, 471 A.2d 730, 733 (1984), which is not evident in this case, we consider only the pre-amendment version of the statute.

   All future references to the Maryland Tort Claims Act will be to the 1993 Replacement Volume of the State Government Article, unless otherwise indicated.

[***2]

   [*466] I

   Sandra Lee Haupt, the appellant, was involved in an automobile accident with Margaret Lynn Keehan, the plaintiff, which occurred on August 1, 1989 . There was a collision between the appellant's car and the [**181] plaintiff's car when the appellant pulled out of a parking lot and entered Mayo Road. Just prior to the accident, the plaintiff's car was proceeding on Mayo Road from the left of the parking lot.
 
   Almost three years after the accident, on August 17, 1992, the plaintiff filed suit against the appellant in the Circuit Court for Anne Arundel County, alleging that the appellant's negligent operation of her car was the cause of the physical injuries that the plaintiff sustained. The appellant filed a timely answer to the complaint and, subsequently, a third-party complaint against Anne Arundel County, seeking contribution and/or indemnification. The third-party complaint alleged that the appellant's view of Mayo Road was obstructed by trees and brush on the County's property, which the County had negligently failed to trim. The County moved to dismiss the third-party complaint on the grounds that the property in question was owned by the State of Maryland and not the County. Subsequently, [***3] on March 5, 1993, the appellant filed a third-party complaint against the State, the appellee, for indemnification and/or contribution, premised on the same allegations that had been made against the County. The third-party complaint against the County subsequently was dismissed. 

   The third-party complaint against the State was served on the State Treasurer on March 18, 1993. The State's motion to dismiss that complaint was filed on March 23, 1993. The State, which had not received notice of a claim pertaining to the underlying accident prior to being sued, argued, in the motion, that the appellant failed to comply with the 180-day time requirement in the MTCA. Following a hearing, the circuit court dismissed the third party complaint, adopting the State's position that § 12-106(b)(1) requires that written notice [*467]of the claim, which is the subject of the underlying action, be filed within 180 days of the accident.

   After the court's ruling had been certified as final pursuant to Maryland Rule 2-602, n2 appellant noted an appeal to the Court of Special Appeals. Prior to the intermediate appellate court's consideration of the matter, we issued a writ of certiorari on our own motion. n3[***4] 

n2 Maryland Rule 2-602 provides, in pertinent part:
 
(b) When allowed. - If the court expressly determines in a written order that there is no just reason for delay, it may direct in the order the entry of a final judgment: 

(1) as to one or more but fewer than all of the claims or parties;
 
* * *
 
n3 This is the second appeal that the appellant has filed to challenge the circuit court's ruling. The Court of Special Appeals determined the appellant's initial Rule 2-602 certification to be defective because it failed to state that there was "no just reason for delay." That deficiency was corrected on remand of the case to the circuit court.

   II

   In Leppo, this Court was presented with the question whether third-party claims were excepted from the notice provision of § 12-106. Id. at 419, 624 A.2d at 540-41. We concluded that they were not. Id. Specifically, we held: 
 
The 180-day requirement is a condition precedent to the institution of a third-party[***5] action against the State.... The only exceptions designated are cross-claims and counterclaims. The General Assembly could have added third-party claims to this short list, but it chose not to do so. 
 
Id. at 423, 624 A.2d at 542 (citations omitted).

   Having so held, the Court made clear what it had not decided: "From the start, the parties have focused on the question whether a third-party claimant is within the exceptions of § 12-106(a). They both have clearly indicated that the time the 180-day clock began to run was not 'before the court.'" Id. at 430-31, 624 A.2d at 546. Pointing out that the matter was not argued in the circuit court, nor addressed by that court, that the parties never attempted to establish the [*468] legislative intent, as to that issue, and that the circuit court did not explain in what respect [**182] the appellant did not meet the notice requirement, the Court remanded the case to the circuit court for further proceedings to determine whether there had been compliance with the notice requirement in that case. It opined that:
 
Our procedures permit third-party actions but just how they fit into the MCTA is far from evident. Absent clear legislative[***6] direction, third-party actions and § 12-106(b) must be reconciled to reflect the best interests of justice - fairness both to the third-party plaintiff and to the State. Although the matter of compliance vel non with § 12-106(b) is a matter of law, we are reluctant to resolve it prior to the parties having the opportunity to fully brief and argue the issue. We think that it should first be argued and decided below, thereby giving the third-party complainant and the State the opportunity to be heard. In the event of an appeal they could fully express and support their respective views by way of brief and argument.
 
Id. at 431, 624 A.2d at 546-47. The case at bar provides this Court with the opportunity to address that issue.

   III

   The appellant contends that the State's motion to dismiss her third-party complaint should have been denied because the third-party complaint was timely filed. Since, she argues, the plain meaning of § 12-106(b) is that the 180-day limitation period does not begin to run until after there has been injury to the person or property that is the basis for the underlying claim, and her complaint is for contribution and/or indemnification, [***7] she is injured only when the plaintiff has been awarded a final judgment against her. Stated another way, the appellant's position is that, in the third-party context, the claim to which § 12-106(b) refers is that of the defendant in the underlying action, i.e., the third-party plaintiff. Consequently, therefore, she contends that the injury referred to is the injury to the person or property of the third-party plaintiff, [*469] not, as the State maintains, the injury directly resulting from the accident.

   In support of her position, the appellant argues that most defendants/third-party plaintiffs would be denied the opportunity to sue the State if a third-party plaintiff were required to file a lawsuit within 180 days of the accident giving rise to the action in which he or she is the defendant. She points out that rarely does a plaintiff file suit within such a short time after the accident; therefore, she maintains, application of the § 12-106(b) notice requirement to third-party plaintiffs would be patently unfair and in direct violation of the third-party plaintiff's due process rights. Alternatively, the appellant asserts that she has shown good cause for not complying with the[***8] 180-day requirement.

   Not unexpectedly, the appellee takes the opposite position. It argues that dismissal was proper. The appellee contends, in that regard, that, as there would be no third-party action without injury to the plaintiff, it is the timing of the plaintiff's injuries, rather than the entry of judgment against the appellant, that determines when notice in compliance with § 12-106(b) must be given. It reasons that, because the claim against it derives from the plaintiff's injuries, i.e., those injuries resulting from the accident, the appellant was injured when the plaintiff was injured. That this is so is made manifest, the appellee asserts, when one considers that the appellant's third-party claim would not exist without the plaintiff's injury and that the recovery of monetary damages, in respect of that claim, depends necessarily and directly on the extent of those injuries. Thus, the appellee concludes that the fact that the appellant failed to comply with the 180-day requirement of § 12-106(b) is evident; the appellant did not file a claim with the treasurer within 180 days after the accident in which the plaintiff was injured.

   The appellee argues, in the alternative, [***9] that the appellant's third-party action was filed prematurely and, hence, the court was without jurisdiction to adjudicate it. It notes the appellant's argument that her "injury" occurs when judgment is [*470] rendered against her and that the third-party complaint was filed prior to that time. The appellee points out that § 12-106(b)(1) requires submission [**183] of a written claim "within 180 days after the injury to person or property that is the basis of the claim." (Emphasis added).

   IV

   The purpose of the notice requirement of § 12-106 is patent. Requiring that notice be given to the State within 180 days after incurring the injury to which the claim relates obviously is designed to give the State early notice of claims against it. Johnson v. Maryland State Police, 331 Md. 285, 296, 628 A.2d 162, 167 (1991). That early notice, in turn, affords the State the opportunity to investigate the claims while the facts are fresh and memories vivid, and, where appropriate, settle them at the earliest possible time.

   Section 12-106(b) sets forth the conditions precedent to filing suit against the State of Maryland:
 
 1. submission of a written claim to the Treasurer within 180 days after [***10]the injury to person or property that is the basis of the claim;

2. final denial of the claim by the Treasurer; and

3. filing suit within the later of one year after the claim is finally denied or three years after the cause of action accrues.
 
The requirements of subsections (b)(2) and (b)(3) are clear and unambiguous. They require the Treasurer's final denial of the claim and the filing of suit within a prescribed time period. Subsection (b)(1), on the other hand, is not so clear. It requires that there be a nexus between the claim made and the injury incurred. Thus, while its provisions make clear that a claim must be submitted, in writing, within a specified time and must relate to "injury to person or property that is the basis of the claim," the meaning of the latter phrase is not at all clear with respect to the injury to which the phrase refers. No differentiation is made between claims by third-party plaintiffs, those made by the defendant in the underlying [*471] action, and those made by the plaintiff in the underlying action. Whether, and if, a party may be a claimant within the meaning of § 12-106(b) and whether, and if, a claim is timely are [***11]matters to be determined according to the circumstances. As it relates to third-party actions - when a third-party plaintiff is involved - the phrase is simply ambiguous.

   To resolve ambiguities, it is well settled that we may consult interpretative aids other than the words of the statute. See City of Baltimore v. Cassidy, 338 Md. 88, 93-4, 656 A.2d 757, 760 (1995); Gargliano v. State, 334 Md. 428, 439, 639 A.2d 675, 680 (1994); State v. Thompson, 332 Md. 1, 7, 629 A.2d 731, 734-35 (1993); Harris v. State, 331 Md. 137, 146, 626 A.2d 946, 950 (1993); Kaczorowski v. City of Baltimore, 309 Md. 505, 514-16, 525 A.2d 628, 632-33 (1987). The purpose of the statute, its legislative history, and "other material that fairly bears on the fundamental issue of legislative goal or purpose" are among the interpretative aids to which we look in determining the meaning of ambiguous statutory language, Id. at 515, 525 A.2d at 633; see also Mustafa v. State, 323 Md. 65, 73, 591 A.2d 481, 485 (1992); however, the statute must be interpreted reasonably, avoiding an interpretation that is illogical or incompatible with common sense. D & Y, Inc. v. Winston, 320 Md. 534, [***12] 538, 578 A.2d 1177, 1179 (1990); Blandon v. State, 304 Md. 316, 319, 498 A.2d 1195, 1196 (1985); Erwin & Shafer, Inc. v. Pabst Brewing Co., 304 Md. 302, 315, 498 A.2d 1188, 1194 (1985). Moreover, the language of the statute must be interpreted in context, Kaczorowski, 309 Md. at 516, 525 A.2d at 633, citing Potter v. Bethesda Fire Department, 309 Md. 347, 351-55, 524 A.2d 61, 63-4 (1987) (quoting State v. Fabritz, 276 Md. 416, 421-22, 348 A.2d 275, 278-79 (1975), cert. denied, 425 U.S. 942, 96 S. Ct. 1680, 48 L. Ed. 2d 185 (1976)), and given full effect, State v. Bricker, 321 Md. 86, 93, 581 A.2d 9, 12 (1990); Board of Education of Garrett County v. Lendo, 295 Md. 55, 62, 453 A.2d 1185, 1189 (1982), neither adding nor deleting words to obtain a meaning not otherwise intended, as evidenced by the words actually used. Id. at 63, 453 A.2d at 1189; Smelser v. Criterion Insurance [*472] Co., 293 Md. 384, 389, 444 A.2d 1024, 1027 (1982); Pappas v. Pappas, 287 Md. 455, 465, 413 A.2d 549, 553 (1980).

   [**184] V
 
   When the tort claim is made by the plaintiff in the underlying action, it is patent that the 180-day period begins to run as soon as the plaintiff or the [***13]plaintiff's property is injured, i.e, from the time of the accident. See Condon v. State, 332 Md. 481, 494, 632 A.2d 753, 759 (1993); Lopez v. State Highway Administration, 327 Md. 486, 492, 610 A.2d 778, 781 (1992); Simpson v. Moore, 323 Md. 215, 230, 592 A.2d 1090, 1094-95 (1991). Where, however, the claim is made by the defendant in the underlying action, whether by way of, as in this case, a third-party complaint, or an action for contribution or indemnification, the question becomes, whether the injury to which the statute refers is the injury directly resulting from the accident, as the State maintains, or, as the appellant contends, the injury which, although derived from the accident, may not manifest until later. Does it refer, in other words, to the injury to the person or property of the plaintiff in the underlying action or the injury which gives rise to the derivative third-party action or the action for contribution or indemnification?

   The statute's ambiguity can be illustrated by hypothesizing an accident for which the State potentially is responsible and in which only one of two non-State parties to the accident suffers an injury to person or property. [***14]In this scenario, only one of the non-State parties may file a claim with the Treasurer. A "'claimant' is one who claims a right, or asserts a right, demand or a claim." Black's Law Dictionary at 225 (5th Ed. 1979). Among the definitions of "claim" are "to demand as one's own or as one's right" and "cause of action." Id. at 224. Section 12-106(b)(1) contemplates a claim based on an injury to person or property. The non-State party who has sustained personal injury or property damage in the accident has a § 12-106(b)(1) claim.

   [*473] Although involved in the accident and aware of the injuries to the other party, the uninjured party does not have a claim against the State at that time. He or she has not suffered the required injury; only a party who suffers an injury in the accident can immediately state a claim for injury to person or property.

   In order to proceed against the State, a party must give notice to the Treasurer pursuant to § 12-106(b)(1). As we have seen, this involves the submission of a written claim within 180 days after the injury that is the basis of the claim occurs. Giving it its ordinary and commonsensical meaning, a claim is a broad and comprehensive term encompassing[***15] all species of legal demand. Leppo, 330 Md. at 427, 624 A.2d at 545, citing White v. Land Homes Corp. , 251 Md. 603, 610-611, 248 A.2d 159, 163 (1968). Therefore, "[a] claim in the context of civil litigation, is a substantive concept, defining the moment at which a litigant may seek judicial recourse." Id., citing Edmunds v. Lupton, 253 Md. 93, 100, 252 A.2d 71, 75 (1969).

   The Maryland Rules permit the filing of third-party claims by defendants and the litigation of third-party actions. Maryland Rule 2-302 allows for, among other pleadings, a complaint and a third-party complaint. Maryland Rule 2-332, provides in pertinent part:
 
(a) Defendant's Claim Against Third Party. A defendant, as a third-party plaintiff, may cause a summons and complaint, together with a copy of all pleadings and motions previously filed in the action, to be served upon a person not previously a party to the action who is or may be liable to the defendant for all or part of a plaintiff's claim against the defendant. A person so served becomes a third-party defendant.
 
Under Maryland's Third-Party Practice Rule, a third-party defendant may assert defenses, counterclaims[***16] and cross-claims to the same extent as can a defendant. See Rule 2-332(b). n4 

n4 Maryland Rule 2-332(b) provides:
 
(b) Response by Third Party. A third-party defendant shall assert defenses to the third-party plaintiff's claim as provided by Rules 2-322 and 2-323 and may assert counterclaims against the third-party plaintiff and cross-claims against other third-party defendants as provided by Rule 2-331. The third-party defendant may assert against the plaintiff any defenses that the third-party plaintiff has to the plaintiff's claim. The third-party defendant may also assert any claim against the plaintiff arising out of the transaction or occurrence that is the subject matter of the plaintiff's claim against the third-party plaintiff.

   [*474] [**185] For purposes of this case, the concept of "claim" must be considered in the context of the "Third-Party Practice" rule, Maryland Rule 2-332. Thus considered, it becomes clear that, relevant to the question of when the § 12-106(b)(1) notice must be given to[***17] the State prior to filing a third party claim is the determination when the legally operative facts permitting the filing of such a claim came into existence.

   Section 12-107 prescribes the contents of a "claim." It provides, as relevant:
 
(a) Form. - A claim under this subtitle shall:

(1) contain a concise statement of facts that sets forth the nature of the claim, including the date and place of the alleged tort;

(2) demand specific damages;

(3) state the name and address of each party;

(4) state the name, address, and telephone number of counsel for the claimant, if any; and

(5) be signed by the claimant, or the legal representative or counsel for the claimant.
 
Although § 12-106(b) sets forth the time for filing the claim, what must be included in the claim helps to determine when it has accrued and whether it suffices to provide the State with the notice it is due. The requirement that the claim "contain a concise statement of facts that sets forth the nature of the claim, including the date and place of the alleged tort" is particularly instructive in that regard. It requires not merely a statement[***18] as to the time and location of the occurrence out of which the claim arose, but the specifics of that claim as well. [*475] While the date and place of the alleged tort are known at the precise moment when the accident occurred, the nature of a third party claim may not be known until much later. To be sure, a potential defendant could be put on notice immediately following the accident that he or she may be liable for the accident and, consequently, may be sued. While that notice may cause the potential defendant to consider a third party action, in reality it can only trigger his or her need to investigate the accident to ascertain whether another party may have been at fault. Until he or she actually is named as the defendant in a tort action, no third party action initiated by him or her is possible.

   A third-party complaint is generated by pending litigation; consequently, the Third-Party Practice rule contemplates and, indeed, explicitly acknowledges, that a third-party complaint, having as its purpose the protection of the defendant against the demands of the plaintiff,- it is directed towards one "who is or may be liable to the defendant for all or a part of a plaintiff's claim against[***19] defendant," Leppo, 330 Md. at 428, 624 A.2d at 545, -will follow the filing of a complaint against the defendant. Moreover, and necessarily, a third-party claim is designed to precede any legal determination of the defendant's liability to the plaintiff for the occurrence of the accident. In other words, a third party claim may be brought even though the defendant in the underlying action has suffered no actual injury. For purposes of a third-party claim, therefore, "injury" has a different meaning than it has in the first party context.

   While a plaintiff may have commenced a civil action against a defendant when he or she files suit, see Maryland Rule 1-101(a) ("a civil action is commenced by filing a complaint with a court"), it is the service of the complaint and the summons on the defendant that exposes the defendant to liability. See [*476] Maryland Rule 2-112(a); n5 2-124(a); n6 2- [**186] 321(a). n7 It follows, therefore, that the earliest point at which a third-party plaintiff actually will be exposed to liability, so as to be able to provide the State with the notice required by § 12-106(b), is when he or she has been served with the plaintiff's complaint for damages. n8 Moreover, [***20] it is only then that the nature of the third-party claim and the specific damages pertaining thereto will be determinable. Only then can "a concise statement of facts that sets forth the basis for the claim" be alleged.

n5 Maryland Rule 2-112(a) provides:
 
(a) Summons. - Upon the filing of the complaint, the clerk shall issue forthwith a summons for each defendant and shall deliver it, together with a copy of each paper filed and a blank copy of the information report form required to be provided by Rule 1-112 (b), to the sheriff or other person designated by the plaintiff. Upon request of the plaintiff, more than one summons shall issue for a defendant.

n6 Maryland Rule 2-124(a) provides:
 
(a) Individual.- Service is made upon an individual by serving the individual or an agent authorized by appointment or by law to receive service of process for the individual.

n7 Maryland Rule 2-321(a) provides:
 
(a) General Rule.- A party shall file an answer to an original complaint, counterclaim, cross-claim, or third-party claim within 30 days after being served, except as provided by sections (b) and (c) of this Rule.

[***21] 

n8 Maryland Rule 2-332(e) requires the filing of a third-party complaint within 30 days after the time for filing the third-party plaintiff's answer, as defendant, in the underlying action. Pursuant to § 12-106(b)(1) and (3), notice of a claim is required to be given to the Treasurer, who must finally reject it, before an action against the State may be filed.

The appellant need not have filed a third-party claim; she had the option of suing the State for contribution or indemnification after judgment had been rendered against her. This raises the question when, in that event, must she have given notice to the state.

   Although a claim for indemnification or contribution does not accrue until judgment has been entered against the party seeking indemnification or contribution, Read Drug v. Colwill Constr., 250 Md. 406, 422-23, 243 A.2d 548, 558 (1968), see also Washington Suburban Sanitary Commission v. Riverdale Heights Volunteer Fire Co. Inc., 308 Md. 556, 570 n.3, 520 A.2d 1319, 1327 n.3 (1987), that does not mean that that [*477] party may delay giving the § 12-106(b)(1) notice until that[***22] time. The timeliness of the § 12-106(b)(1) notice is not tied to when a particular cause of action accrues; rather it is dependant upon the point at which the claimant suffered personal or property damage injury. Because Maryland permits third party claims, that means when a party may bring a third party suit. n9 Thus, for purposes of § 12-106(b)(1), the 180-day clock begins to run without regard to whether the defendant asserts a third party claim against the State in the pending action or brings a separate subsequent action against the State for contribution or indemnity. Consequently, in this case, the State became entitled to the 12-106(b)(1) notice the moment the appellant was able to bring a third party claim. 

 n9 The State agrees that, as written, § 12-106(b) applies to third-party complaints. It nevertheless argues that, in this case, the appellant's action is premature and that, in the absence of a judgment against the third-party plaintiff, the trial court has no jurisdiction to entertain the action. The State cannot have it both ways. Section 12-106 cannot both recognize the third-party practice as reflected in the Maryland rules by requiring third-party plaintiffs to comply with its notice requirement, and, at the same time, preclude third-party complaints, validly initiated, from being viable, by labeling them as premature.

[***23]

   We observed in Leppo, addressing when the 180-day clock begins to run, that "absent clear legislative direction, third-party actions and [the requirements of] § 12-106(b) must be reconciled to reflect the best interests of justice and fairness both to the third-party plaintiff and to the State." Leppo, 330 Md. at 431, 624 A.2d at 546-47. The State's interpretation of § 12-106(b)(1) as requiring notice to be given within 180 days of the accident fails to make the reconciliation. Indeed, it is illogical and incompatible with common sense. Interpreting § 12-106(b)(1) as requiring the 180-day clock to begin to run from the date of the accident places the non-injured party at the mercy of the injured party, in addition to controlling whether the State receives early notice of a claim against it. As this Court said in Leppo, to bar a third party plaintiff under this statute would be to: 
 
place in the hands of the plaintiff the determination of whether the defendant might be permitted to recover from [*478] the municipal corporation [here the State] because by the manipulation of the time of filing suit and the speed with which the plaintiff then proceeded, the plaintiff[***24] could [**187]easily place the potential third-party plaintiff outside the statutory period.
 
Id. at 421-22, 624 A.2d at 542 (quoting Cotham & Maldonado v. Bd. of County Comm'rs, 260 Md. 556, 567, 273 A.2d 115, 118 (1971). Thus, the plaintiff, by his or her action or inaction -by giving the requisite notice to the State in a timely fashion or refraining from doing so - could control whether the notice provided the third party was adequate, and is enabled to determine whether the third-party action successfully could be maintained. When the State's role in the accident is known and the defendant is not injured in the accident, the defendant may not, pursuant to § 12-106, place the State on notice as to his or her claim until after the plaintiff has filed suit against him or her, not to mention initiate a third-party action against the State.

   Moreover, when the State's involvement in the accident is not known at the moment of the accident, adopting the State's interpretation would require every uninjured party to an accident to expend considerable time and money investigating, within 180 days of the occurrence of the accident, the possibility that the State is responsible for[***25] the accident, if that party's rights against the State are to be preserved. That effort would have to be made in every case, even when there is no suggestion that the uninjured party will be sued or there is no knowledge that the other party to the accident has been injured.

   The purpose of the statute militates in favor of interpreting subsection (b) as referring to the injury suffered by the claimant, rather than that sustained by a plaintiff. Section 12-102 provides that "this subtitle shall be construed broadly to ensure that injured parties have a remedy," thus evidencing an attempt, recognized in other cases, see e.g. Simpson, 323 Md. at 222, 592 A.2d at 1095, to broaden the tort liability of the State of Maryland. Interpreting "injury to person or property that is the basis of the claim" to refer only to the [*479] plaintiff's injury fails to give effect to that legislative purpose, see Condon, 332 Md. at 491, 632 A.2d 757 ("the cardinal rule of statutory construction is to ascertain and carry out the true intention of the Legislature."), to the word "claimant," and to the first reference in the statute to "claim." See Lendo, 295 Md. at 62-63, 453 A.2d at 1189. To be sure, [***26]rules of construction are applied for the purpose of interpreting an ambiguous statute rather than broadening the reach of a clear one. As we have seen, § 12-106(b)(1) is far from unambiguous with regard to the injury to which the 180 day notice requirement pertains.

   We held in Leppo, 330 Md. at 424, 624 A.2d at 543, that, when the accident giving rise to this case occurred, § 12-106(a) did not except third-party complaints from coverage. Consequently, this Court has already decided that the appellant had to comply with the notice requirement of § 12-106(b)(1). We have held that a defendant has suffered sufficient injury to justify the bringing of a third party action when he or she is sued, i.e., exposed to liability for the plaintiff's injuries. The plaintiff filed suit against the appellant on August 17, 1992. The appellant was served with the summons and complaint on August 30, 1992. The appellant therefore had from August 30, 1992, when she was served with the plaintiff's complaint, to February 26, 1993 to submit a written claim to the Treasurer, the prerequisite to commencing the third-party action against the State. She did not do so.

   The appellant's third-party[***27] complaint against the State was not filed until March 5, 1993 and it was not served on the State until March 18. In short, at no time before filing the third-party complaint did the appellant submit written notice of a claim to the Treasurer. Not having done so, the appellant did not comply with the notification requirements of § 12-106(b)(1); accordingly, her third-party complaint against the State was untimely.

   We hold that since the notice required by § 12-106(b)(1) was not timely given, the appellant's third-party complaint was correctly dismissed.

   JUDGMENT AFFIRMED WITH COSTS. 

KATHY BRADLEY v. HAZARD TECHNOLOGY CO., INC. 
No. 30, September Term, 1995
 
COURT OF APPEALS OF MARYLAND
 
340 Md. 202; 665 A.2d 1050; 1995 Md. LEXIS 138
 
   October  12, 1995, Filed

   PRIOR HISTORY: Appeal from the Circuit Court for  Anne Arundel  County, Clayton Greene, Jr., JUDGE.

DISPOSITION: [***1] JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY REVERSED. CASE REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. COSTS TO BE PAID BY RESPONDENT.

CORE TERMS:  new trial, unavailable, memorandum, automatically, missing, trial transcript, stenographer, appellate review, unavailability, reconstructed, entitle, retrial, questions presented, specific allegation, clerk, reversal, omission, Maryland Rule, trial testimony, parties agree, reconstruct, appealing, warrant reversal, criminal case, losing party, reconstructing, incomplete, materially, preserved, automatic

COUNSEL: ARGUED BY: Nancy E. Leibowitz (C. Edward Hartman, III, Hartman and Parrott, on brief) of Annapolis, MD for petitioner.
 
ARGUED BY: No Brief filed on behalf of respondent.

JUDGES: Murphy, C.J., Eldridge, Rodowsky, Chasanow, Karwacki, Bell, Raker, JJ.

OPINIONBY: CHASANOW

OPINION: [*204] [**1051]
 
Opinion by Chasanow, J.
 
Filed: October 12, 1995
 
The question presented in this case is whether a party appealing the judgment of the district court in a civil action is entitled to a new trial when a complete trial transcript is unavailable on appeal due to a failure of the court's recording equipment. We hold that the unavailability of a full transcript does not automatically entitle a party to a new trial, but that retrial may be appropriate if the appellant can demonstrate that the missing portion of the transcript is relevant to consideration of a specific allegation of error, and that no sufficient substitute for the missing transcript can be reconstructed. [***2][**1052]

   I.

   This case grew out of a dispute over certain payments made to the Petitioner, Kathy Bradley, by the Respondent, Hazard Technology Co., Inc. (Hazard). In early 1992, Hazard's president, David Levinson, hired Ms. Bradley to work as a sales representative for his company. Ms. Bradley was expected to generate sales of Hazard's industrial health and safety equipment in a territory that included parts of Connecticut, New York, New Jersey and Eastern Pennsylvania. She was to be paid on a commission basis. In July of 1992, Mr. Levinson became dissatisfied with Ms. Bradley's efforts and terminated the arrangement.

   Hazard filed suit on April 19, 1993 in the District Court of Maryland sitting in Anne Arundel County seeking to recover $8,592.88 in payments that Hazard made to Ms. Bradley during the time she worked for the company. Hazard alleged [*205]that the payments were "advances" on commissions that Ms. Bradley never earned. Ms. Bradley maintained the payments were compensation for work performed. On May 5, 1994, after a one-day bench trial, the district court entered judgment in favor of Ms. Bradley.

   Hazard filed a timely notice of appeal with the clerk of the district court, pursuant[***3] to Maryland Rule 7-103(a), and requested that a transcript be prepared for appellate review in the Circuit Court for Anne Arundel County, pursuant to Maryland Code (1974, 1995 Repl. Vol., 1995 Supp.), Courts and Judicial Proceedings Article, §§ 12-401 and 12-403. n1 On September 22, 1994, counsel for Hazard was informed that, due to a faulty audio tape, a full transcript of the district court trial could not be provided. n2 A truncated 80-page transcript containing opening statements, the plaintiff's entire case, and a portion of the defendant's case was produced. On the final page of the transcript, the court reporter indicated "tape will no longer run ... we cannot complete this transcript." Missing from the transcript were the remaining portions of the defendant's case and the announcement of the district court's judgment. 

n1 Appeals from district court to the circuit court are conducted on the record in civil cases in which the amount in controversy exceeds $2,500. In cases in which $2,500 or less is in controversy, the appeals in circuit court are conducted de novo, unless all parties agree that the appeal shall be on the record. Maryland Code (1974, 1995 Repl. Vol.), Courts and Judicial Proceedings Article, § 12-401 (f); Maryland Rule 7-102. 

[***4] 

n2 Md. Rule 1224 d.2.(a) requires that the entire trial on the merits held in open court, excluding opening statements and closing arguments of counsel, be recorded in civil cases.

 
   On November 28, 1994, Hazard moved to have the circuit court remand the case for a new trial on the ground that in the absence of a complete transcript it was "unable to adequately prepare for and prosecute its appeal." The circuit court granted the motion without a hearing. Ms. Bradley filed a petition for certiorari in this court. We granted certiorari to consider her assertion that the circuit court erred[*206] in remanding the case without first requiring Hazard to submit a memorandum outlining the basis for its appeal, and then determining whether a record sufficient for appellate review could have been reconstructed from the partial transcript, supplemented with stipulations of the parties.

   II.

   It is well-settled that, on appeal, the burden of establishing error in the lower court rests squarely on the appellant.  Wooddy v. Mudd, 258 Md. 234, 237, 265 A.2d 458, 460 (1970)(quoting Rippon v. Mercantile-Safe Dep.,[***5] 213 Md. 215, 222, 131 A.2d 695, 698 (1957)). This rule reflects a general presumption of regularity in the proceedings below. See Hagerstown Trust Co., Ex. of Mealy, 119 Md. 224, 230, 86 A. 982, 984 (1913)("The presumption is that the ruling of the lower Court was correct, until the contrary appears."). Unless an appellant can demonstrate that a prejudicial error occurred below, reversal is not warranted. See Wooddy, 258 Md. at 237, 265 A.2d at 460.

   Pursuant to this principle, Maryland Rule 7-113(d)(2) requires a party appealing a judgment of the district court to file with the circuit court an appeal memorandum containing "(A) a statement of the questions presented for review, (B) a concise statement of [**1053] the facts material to a determination of the questions presented, and (C) argument in support of the appellant's position, stating the grounds for the relief sought and the authorities in support of each ground." n3 

n3 Maryland Rule 7-113(d) provides in pertinent part:
 
"(d) Memorandum and Response.

   (1) The appellant shall file a memorandum in opposition to the decision of the District Court within 30 days after the date the appeal was entered on the docket or as otherwise ordered by the court. The appellee may file a response within 15 days after service of the appellant's memorandum, but in no event later than five days before the date of argument, if argument has been scheduled.

   (2) In addition to otherwise complying with Rule 1-301, a memorandum or response ... shall not exceed ten pages in length. The appellant's memorandum shall contain (A) a statement of the questions presented for review, (B) a concise statement of the facts material to a determination of the questions presented, and (C) argument in support of the appellant's position, stating the grounds for the relief sought and the authorities in support of each ground. The appellee's response shall contain argument in support of the decision of the District Court, stating the grounds for affirmance and the authorities in support of each ground."

[***6] [*207]

   In the instant case, Respondent Hazard never filed its appeal memorandum, as required by Md. Rule 7-113(d)(2). Instead, Respondent moved to have the circuit court remand the case for a new trial because a full transcript of the trial was unavailable. Hazard also moved to extend the time to file its appeal memorandum until after the circuit court ruled on the motion to remand. The court granted Hazard's "Motion to Extend Time" on December 5, 1994, and then, on December 29, 1994, granted Hazard's "Motion to Remand Case to District Court for Trial." Consequently, the circuit court remanded the case for a new trial without even requiring Hazard to file a memorandum outlining the basis for its appeal.

   We hold that the circuit court erred in remanding the case before Hazard filed the appeal memorandum required by Md. Rule 7-113(d)(2). In so doing, the court granted appellate relief before Hazard had presented any specific allegation of error, posed any questions for appellate review, or provided an argument in support of its position. The mere absence of a full transcript does not relieve an appellant of its burden to assert error. Moreover, the circuit court awarded Hazard a new trial[***7] even though a substantial portion of the trial testimony, including Hazard's entire case-in-chief, had been transcribed and was available for review on appeal.

    We believe it is unfair to the prevailing party and the witnesses, as well as a waste of judicial resources, to automatically grant the losing party a new trial in cases where a full trial transcript is unavailable due to no fault of the litigants. n4[*208] In addition to enduring the added time and expense associated with retrial, a party may encounter problems procuring the presence of vital witnesses at a second trial. This Court has consistently held, in both the civil and criminal contexts, that the unavailability of a complete transcript does not by itself warrant a new trial. Smith v. State, 291 Md. 125, 136, 433 A.2d 1143, 1147 (1981); State v. Long, 235 Md. 125, 127-28, 200 A.2d 641, 642-43, cert. denied, Long v. Maryland, 379 U.S. 917, 85 S. Ct. 268, 13 L. Ed. 2d 187 (1964); Michigan Nat. Bank v. Racine, 234 Md. 250, 253, 198 A.2d 898, 899 (1964). 

n4 We note that in cases where a transcript is unavailable on appeal due to negligence or inaction of an appellant, the appeals have been dismissed. See Hohensee v. Hohensee, 214 Md. 284, 134 A.2d 82 (1957); Laukenmann v. Laukenmann, 17 Md. App. 107, 299 A.2d 466 (1973).

[***8]

   We faced this issue in the criminal context in Smith, supra, where the appellant argued he was denied his right of appeal because portions of testimony by two state's witnesses were not preserved due to technical problems with the trial court's tape recording system.  Smith, 291 Md. at 126, 433 A.2d at 1144. We made clear that the omissions in the trial transcript do not entitle an appellant in a criminal case to automatic reversal and a new trial:
 
"We do not believe, therefore, that every inadvertent omission in the record would call for reversal or would justify the time and expense incident to a new trial.

   It would wreak havoc on the administration of justice to require reversal in each [**1054] and every case in which it is alleged by an appellant that portions of trial testimony have not been preserved verbatim for review. As anyone familiar with appellate review can attest, transcripts are seldom perfect. Mistakes inevitably occur.... Electronic recording or stenographic equipment will occasionally fail....

   Understandably, therefore, it has been necessary for courts to proceed on a case-by-case basis."
 
Smith, 291 Md. at 133-34, 433 A.2d[***9] at 1147.

   Rather than automatically ordering a new trial, we noted that generally courts have placed the "onus upon the appellant to show that the omissions are not merely inconsequential, but are in some manner relevant on appeal," 291 Md. at 136, 433 A.2d at 1149. Further, we found that "sometimes substitute statements or affidavits can be prepared to replace or to[*209] supplement the record, thus providing an appellant with adequate material for the court to review." Id. Finally, we noted that "only when an adequate substitute cannot be made" need we consider an appellant's contention that he has been deprived of meaningful appellate review.  291 Md. at 137, 433 A.2d at 1149. We believe this reasoning applies with equal weight in the context of a civil action. See Michigan Nat. Bank, 234 Md. at 253, 198 A.2d at 899 ("The mere fact that the stenographer's notes were lost does not automatically call for a new trial."). In Burroughs v. Milligan, 199 Md. 78, 85 A.2d 775 (1952), we indicated:
 
"The court stenographer, who took down the testimony, died ... and her notes on the testimony cannot be located. Under these circumstances, we have no testimony in the record and must[***10] decide the case, therefore, upon the statements of fact contained in the court's opinion, and any other facts we may find are agreed upon by the parties."
 
199 Md. at 81, 85 A.2d at 777. We believe deciding an appeal on the merits where possible, even if a full transcript is unavailable, serves the interests of justice and judicial economy.

   Furthermore, the entire record is not always necessary for an appeal. Under Md. Rule 7-113(b)(1)(A), parties may stipulate to proceed on appeal in circuit court based on only that portion of the testimony they agree is relevant to the appeal:
 
"(b) Filing of Transcript. 

    (1) Unless a copy of the transcript is already on file, the appellant, within 10 days after the date the first notice of appeal is filed, shall order in writing from the clerk of the District Court a transcript containing:

   (A) a transcription of (i) all the testimony or (ii) that part of the testimony that the parties agree, by written stipulation filed with the clerk of the District Court, is necessary for the appeal...." (Emphasis added).
 
Md. Rule 7-113(b). The rule expressly provides for appeals to proceed on an abbreviated record[***11] containing only the testimony[*210] the parties agree is relevant. A new trial is not warranted merely because a full transcript is unavailable.

   Courts in several other states that have faced the issue concur that unavailability of a complete trial transcript for appeal does not per se entitle a losing party to a new trial. See Kay v. Kay, 277 A.D. 797, 97 N.Y.S.2d 607 (N.Y. App. Div. 1950)(holding that appeal could proceed on record reconstructed by parties with the aid of the judge after court reporter died); Lidgerwood Mfg. Co. v. Rogers, 56 Hun 350, 4 N.Y.S. 716 (1889)(no right to new trial where court stenographer's death made trial transcript unavailable); Hoffart v. Lindquist, 182 Ore. 611, 189 P.2d 592 (Or. 1948)(no automatic right to new trial when court reporter's shorthand notes were lost); McSherry v. Peckham, 50 R.I. 473, 149 A. 380 (R.I. 1930)(unavailability of trial transcript due to death of court stenographer did not entitle appealing party to new trial); Southern Pine Lumber Co. v. Martin, 118 S.C. 319, 110 S.E. 804 (S.C. 1922)(same). See generally, Edward L. Raymond, Jr., Annotation, Court Reporter's Death or Disability Prior to Transcribing Notes as Grounds for Reversal or New Trial,[***12] 57 A.L.R.4th 1049 (1987 & Supp. 1994)(discussing various approaches taken by courts in cases where a full transcript is unavailable). As the Supreme Court of Rhode Island pointed out in McSherry, supra:
[**1055]
 
"The purpose of [requiring the preparation of trial transcripts] was to make available to the court, and a party to the trial, the best obtainable record so as to eliminate, so far as possible, disputes and misunderstandings as to proceeding in a given case. But it does not follow that this method of making up a record for an appeal is exclusive...."
 
149 A. at 381.

   Federal courts also hold that the lack of a complete transcript does not automatically warrant a new trial. See Herndon v. City of Massillon, 638 F.2d 963, 965 (6th Cir. 1981)("[A] party may not seek a new trial simply because matters occurring in the [trial] court are not reflected in the transcript. Rather, that party must at least attempt to cure the defect by reconstructing the record as provided" by federal rule.); Hydramotive[*211]  Mfg. Corp. v, Securities and Exchange Com'n, 355 F.2d 179, 180 (10th Cir. 1966)("The inability to obtain a stenographic transcript of testimony is not enough[***13] alone to warrant a new trial."); Herring v. Kennedy-Herring Hardware Company, 261 F.2d 202, 203 (6th Cir. 1958)(no automatic right to new trial for lack of transcript). See also Bergerco, U.S.A. v. Shipping Corp. of India, Ltd., 896 F.2d 1210, 1217 (9th Cir. 1990)(noting that "the lack of a complete transcript does not automatically warrant reversal," but holding that a limited retrial was necessary where there was a specific allegation of error and the inability to create an adequate substitute record materially affected the ability of the appeals court to review the alleged error).

   Rather than automatically granting a new trial in cases where a full transcript is unavailable through no fault of the litigants, we hold that the circuit court should first require an appellant to assert specifically what errors occurred at the district court trial as required by Md. Rule 7-113(d)(2). If all or part of the trial transcript is missing, an appellant should be required to demonstrate to the circuit court that the missing portion is relevant to the appellate issues raised in the appeal memorandum. If the circuit court determines that the lost portion of the record is material to[***14] the appellate issues, the appellant must make diligent efforts to reconstruct the missing portions of the record through the use of affidavits and stipulations with the opposing party. If the circuit court finds that a record sufficient for a fair consideration of the appellate issues can be reconstructed, the appeal should proceed on that record.

   In this case, a transcript of a substantial portion of the trial testimony, including Hazard's entire case-in-chief and a portion of Ms. Bradley's case, is already available. This provides Hazard with a solid foundation upon which to reconstruct a record for appellate review. We recognize, of course, that the parties may legitimately be unable to agree about the further contents of the record. In that case, the circuit court may enlist the aid of the trial judge to settle any disputes, [*212] much in the same way trial courts resolve differences over the contents of the record in appeals to this Court and the Court of Special Appeals. See Md. Rule 8-413(a)(mandating that in appeals to the courts of appeal "the lower court, by order, shall resolve any dispute whether the record accurately discloses what occurred in the lower court, and shall [***15]cause the record to conform to its decision"). Other states have adopted similar procedures. See Brandenburg v. Brandenburg, 188 A.D.2d 368, 591 N.Y.S.2d 38 (N.Y. App. Div. 1992)(unavailable transcripts are to be replaced by a statement of facts approved by trial judge with assistance of the parties); Southern Pine Lumber, 110 S.E. at 805 (applying statute and rule requiring trial judge to settle disputes over contents of case on appeal where stenographer's death made transcript unavailable); Roberts v. Erickson, 851 P.2d 643, 644-45 (Utah 1993)(substitute statement of proceedings may be used on appeal after approval by trial judge in cases where no transcript is available). See also 57 A.L.R.4th at 1098-99 (citing cases in which a substitute record was prepared where no transcript was available). Disputes over the contents of a substitute record are similarly resolved in federal courts. See Federal Rules of Appellate Procedure 10(c). n5 

n5 Rule 10(c) of the Federal Rules of Appellate Procedure provides:

 
"Statement of the Evidence or Proceedings When No Report Was Made or When the Transcript Is Unavailable. If no report of the evidence or proceedings at a hearing or trial was made, or if a transcript is unavailable, the appellant may prepare a statement of the evidence or proceedings from the best available means, including his recollection. The statement shall be served on the appellee, who may serve objections or propose amendment thereto within 10 days after service. Thereupon the statement and any objections or proposed amendments shall be submitted to the district court for settlement and approval and as settled and approved shall be included by the clerk of the district court in the record on appeal."

 

[***16] [**1056]

   We do not mean to suggest that a new trial may never be an appropriate remedy for the lack of a complete trial transcript. If an appellant can demonstrate to the circuit court that error may have occurred at trial, and that a record sufficient to allow for a fair consideration of the specified[*213] appellate issues simply cannot be reconstructed, a new trial may be warranted. Cf.  Wilson v. State, 334 Md. 469, 476-79, 639 A.2d 696, 699-701 (1994)(noting that, in a criminal case, lack of complete trial transcript does not automatically warrant new trial, but holding that a new trial was justified given the impossibility of reconstructing a substitute record sufficient for consideration of the specified appellate issues). See also Bergerco, supra, where the Ninth Circuit explained:
 
"The lack of a complete transcript does not automatically warrant reversal. However, in certain circumstances, the original transcript may be so essential to meaningful appellate review that a remand for a new trial is necessary to insure a fair appeal.... We conclude that an appellant seeking a new trial because of a missing or incomplete transcript must 1) make a specific allegation of error; [***17] 2) show that the defect in the record materially affects the ability of the appeals court to review the alleged error; and 3) show that a ... proceeding [authorized by the rule] has failed or would fail to produce an adequate substitute for the evidence." 
 
896 F.2d at 1217. Although the court in Bergerco did find that limited retrial was necessary due to the absence of vital testimony on a legitimate appellate issue, the court noted that only in "rare cases" is a retrial justified because of a missing or incomplete transcript. Id.

   Therefore, we remand this case to the Circuit Court for Anne Arundel County for proceedings consistent with this opinion.
 
JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY REVERSED. CASE REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. COSTS TO BE PAID BY RESPONDENT.

                       
HERMAN L. CURRY v. STATE OF MARYLAND DEPARTMENT OF PUBLICSAFETY AND CORRECTIONAL SERVICES; STATE OF MARYLAND DEPARTMENT OF PUBLIC SAFETYAND CORRECTIONAL SERVICES v. PAUL O. FLAGG 
No. 27, September Term, 1995
 
COURT OF APPEALS OF MARYLAND
 
340 Md. 175; 665 A.2d 1038; 1995 Md. LEXIS 139

 October  11, 1995, Filed

   PRIOR HISTORY: [**1]

   Certiorari to the Court of Special Appeals. (Circuit Court for  Anne Arundel  County). Eugene M. Lerner, JUDGE.

COUNSEL: ARGUED BY Thomas P. Lydon (Law Offices of J. Edward Davis on brief) of Towson, MD, FOR PETITIONERS.
 
ARGUED BY Alan D. Eason, Assistant Attorney General, J. Joseph Curran, Jr. (Susan L. Howe, Assistant Attorney General, on brief) of Baltimore, MD, FOR RESPONDENTS.

JUDGES: ARGUED BEFORE Murphy, C.J., Eldridge, Rodowsky, Chasanow, Karwacki, Bell, and Raker, JJ.

OPINION: [*176]

   PER CURIAM ORDER

   The petition for writ of certiorari in the above entitled case having been granted and heard, it is this 11th day of October, 1995

   ORDERED, by the Court of Appeals of Maryland, that the writ of certiorari be, and it is hereby, dismissed with costs, the petition having been improvidently granted as it is of no prospective importance and thus not certworthy in light of 1995 Laws of Maryland, Chapter 625, effective October 1, 1995.

   /s/ Robert C. Murphy

   Chief Judge 

ROBERT E. GERTZ v. ANNE ARUNDEL COUNTY, MARYLAND 
No. 13, September Term, 1994
 
COURT OF APPEALS OF MARYLAND
 
339 Md. 261; 661 A.2d 1157; 1995 Md. LEXIS 100
 
   July  21, 1995, Filed

   PRIOR HISTORY: [***1] Certiorari to the Court of Special Appeals (Circuit Court for  Anne Arundel  County). Bruce C. Williams JUDGE.

DISPOSITION: JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED IN PART, REVERSED IN PART. CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO REINSTATE THE JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY. COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID BY APPELLANT/CROSS-APPELLEE GERTZ.

CORE TERMS:  ordinance, landfill, filling, sanitary, farming, judicata, landfill permit, counterclaim, cause of action, contempt, rubble, final judgment, adjudicate, litigated, tree, res judicata, regulation, off-site, raw, breach of contract, declaratory judgment, fill, unconstitutional taking, constitutional rights, convenient, breached, enacting, usage, space, Maryland Rule

COUNSEL: ARGUED BY Susan S. James Mayer (James L. Mayer, on brief) both of Columbia, MD, FOR PETITIONER.
 
Amicus Curiae - Francis M. Gasperich of Crownsville, MD.
 
ARGUED BY Judson P. Garrett, Jr., County Attorney (Robert M. Pollock, Sr. Assistant County Attorney, on brief) of Annapolis, MD, FOR RESPONDENT.

JUDGES: ARGUED BEFORE Murphy, C.J.; Eldridge, Rodowsky, Chasanow, Karwacki, Bell, and Raker, JJ.

OPINIONBY: RAKER

OPINION: [*263]
 
[**1158] Opinion by Raker, J.
 
Filed: July 21, 1995
 
In this case we are asked to decide whether the conduct of Anne Arundel County in enacting and enforcing an ordinance regulating sanitary landfills, passed as emergency legislation after a judgment in favor of a landowner against Anne Arundel County, gives rise to a cause of action under 42 U.S.C. § 1983 (1988). [***2]We must also decide whether, under the doctrine of res judicata, the judgment bars Anne Arundel County from subsequently applying the ordinance to land filling activity on the property. We answer both questions in the negative. 

   I.

   This appeal arises out of an action for declaratory and other relief filed by Robert E. Gertz ("Gertz") in the Circuit Court for Anne Arundel County. He sought a declaratory judgment that Bill No. 28-90 ("the Ordinance"), entitled "AN EMERGENCY ORDINANCE concerning: Zoning and Environmental Health - Applications for Sanitary Landfills, including Rubble Landfills," does not apply to his land filling activity. In response, Anne Arundel County ("the County") filed a counterclaim, seeking an injunction to enjoin Gertz's activities until he obtained a landfill permit required by the Ordinance.

   The land filling activity at issue here involves Gertz's plan to establish a farm on his property in Anne Arundel County to be used as a horse boarding operation. To that end, he was[*264] filling ravines on his property with raw tree materials to establish pasture land. The fees he charged others to accept their organic fill served as his primary source of income.
 
[**1159] The[***3] present suit over whether the Ordinance applies to Gertz is rooted in two earlier events. First, in 1985, the parties settled a grading permit dispute by entering into a Consent Agreement (the "Agreement") that allowed Gertz to dump, place, dispose, or otherwise store on his land loads from off-site of raw tree material for his farming and/or personal use. n1 It stated in pertinent part:

n1 The County had filed a grading permit enforcement action against Gertz, alleging that he was engaged in unpermitted grading and filling on the property. Gertz denied liability and claimed an agricultural exemption.

   1. That [Gertz], except for his and/or occupant's farming and/or personal use , shall not dump, place, dispose, or otherwise store any bulk loads from off-site of raw tree material consisting of root material, brush, tree limbs and stumps or otherwise dispose or store any rubble originating off-site on the Property which is the subject of this proceeding, unless otherwise or subsequently specifically permitted[***4] by law.
* * * * * * 

   7. That this Consent Order shall be binding on the heirs, assigns and successors in interest of the parties.
 
(Emphasis added.) Gertz and the County later agreed to a slight modification of the Agreement following continued disputes and erosion problems.

   Second, in 1989, after a dispute arose between the parties as to the nature of Gertz's activities under the Agreement, the County filed a Petition for Contempt in the Circuit Court for Anne Arundel County. On December 21, 1989, the Honorable Martin A. Wolff found Gertz not in contempt, ruling that his land filling activity was farming and permissible under the Agreement ("the Wolff decision").
 [*265]
On April 23, 1990, the County enacted Bill No. 28-90, "an emergency ordinance," which amended Articles 14 and 28 of the Anne Arundel County Code and created new requirements for sanitary landfills. See Anne Arundel County Code Art. 14, §§ 4-101 to 4-109 1987-1993 (Environmental Health), Art. 28, §§ 1-101(55B), 1-101(57), 11-112(a), 12-242 1993-1994 (Zoning). Specifically, the definition of "sanitary landfill" was modified to include the planned disposal of "rubble." Id. art. 14, § 4-101(f)(2). [***5] Rubble is defined, in part, as stumps, brush, roots, and topsoil. See C.O.M.A.R. 26.04.07.11B, 26.04.07.13B. Thus, rubble includes the raw tree materials that Gertz was using to fill his ravines. 

   Gertz was advised in a letter dated June 4, 1990, that he was using his property as a "rubble landfill" and that he was required by the new Ordinance to obtain a sanitary landfill permit to continue this use. He then filed a declaratory judgment action, and the County responded with a counterclaim for injunctive relief.

   After the circuit court issued an interlocutory injunction, Gertz filed an Amended Complaint containing four counts. Count One, claiming breach of contract (of the Consent Agreement), alleged that the County breached its contract with him by enacting legislation and pursuing injunctive relief that prohibited his land filling activity. He averred that his activities constituted farming, as previously determined by the circuit court (the Wolff decision), and, as such, are his contractual right. In Count Two, specific performance, Gertz asked the circuit court to order the County to specifically perform its contract by allowing him to continue his filling activity without[***6] the necessity of a sanitary landfill permit. In Count Three, the declaratory judgment claim, Gertz asked the court to declare that "[his] fill activities are allowable by law and under the Contract; that [he] need not obtain a permit under Bill 28-90; that retroactive application of Bill No. 28-90 is a violation of [his] constitutional rights; [and] that requiring [him] to obtain a permit and [the County's] work stoppage is an unconstitutional taking of [his] property." Finally, in Count Four, invoking 42 U.S.C. § 1983, Gertz averred that as [*266]a result of the County's enactment of the Ordinance and subsequent injunctive action, the County unconstitutionally impaired his contract rights and violated his property rights under the Due Process Clause of the Fourteenth [**1160] Amendment of the U.S. Constitution and Article 24 of the Maryland Declaration of Rights. n2 

n2 At oral argument before this Court, Gertz expressly stated that he is not alleging a violation of the Contract Clause of the U.S. Constitution.

[***7]

   Both parties filed motions for summary judgment. The circuit court, the Honorable Warren B. Duckett, Jr., presiding, found in favor of Gertz on the declaratory judgment count, and issued an order stating that Gertz had a vested right in his land filling activities and that the County was estopped from enforcing the Ordinance against him ("the Duckett decision"). The interlocutory injunction was dissolved. Judge Duckett did not, however, address the breach of contract claim or the 42 U.S.C. § 1983 claim.

   The matter was then set before the Honorable Bruce C. Williams, who granted final judgment in favor of the County. Judge Williams ruled that all of the issues in the case, liability as well as damages, were before him. Following an evidentiary hearing, and contrary to the ruling of Judge Duckett, Judge Williams concluded that the provisions of the Ordinance applied to Gertz. He ruled that the Consent Agreement did not permit Gertz to run a commercial landfill for profit, and found that his filling activity went beyond farming and constituted a commercial landfill operation. Finding no breach of the Consent Agreement, Judge Williams concluded there was no interference with a vested[***8] right and thus no proof of a claim under 42 U.S.C. § 1983.

   Gertz appealed and, in an unreported opinion, the Court of Special Appeals held (1) that the 1989 Wolff decision was res judicata as to the issues before Judge Williams, and (2) that 42 U.S.C. § 1983 is inapplicable in this case. According to the intermediate appellate court, the only issues before Judge Williams were whether, as a result of the acts by the County, [*267] damages could be awarded under either breach of contract or § 1983. The court reasoned that res judicata barred Judge Williams from reconsidering the nature of Gertz's filling activity, i.e., whether he was running a landfill or whether he was farming. The court concluded that because Gertz's activities had not changed since Judge Wolff found that he was farming, the only issue before Judge Williams was whether the agreement had been breached and, if so, the nature of the damages. Those issues were remanded to the circuit court. In addition, the Court of Special Appeals found that based on the law of the case doctrine, the Duckett decision that the Ordinance did not apply to Gertz precluded Judge Williams from revisiting that question. Having concluded[***9] that the Ordinance did not apply to Gertz, the court found § 1983 inapplicable in this case.

   We granted Gertz's petition for a writ of certiorari on the 42 U.S.C. § 1983 claim and the cross-petition of the County on the applicability of the doctrine of res judicata. We shall first consider whether the Court of Special Appeals erred in holding that under the doctrine of res judicata, the Wolff decision barred the County from regulating the disposal of rubble on Gertz's farm.

   II.

   A.

   Gertz's argument that res judicata applies in the case sub judice starts with the Wolff decision. In 1989, Judge Wolff ruled that Gertz was not in contempt of court. In his opinion, he stated:
 
Now, I can see where the County's going. The County's saying, you are running a landfill, not farming. That's basically the County's position, is it not?
 
Following the County's agreement, the court continued:
  
Okay. If that is the problem, then they can pass ordinances, requiring any off-site filling, whether it be for farming or not, over two truckloads, or whatever it be, [*268] needs a permit. But, they're trying to do it in another way, which is not reasonable. Because, at least[***10] in this case, he's allowed to farm. And, that was an exception that's cut off. So, if the County wants to stop this practice, it may be a good idea, if that's what they want to do, or to control [**1161] the practice, is to have some ordinance which would control it. This Consent Agreement does not. It calls for farming.
 
(Emphasis added.)

   Gertz argues that res judicata should be applied to bar the County's counterclaim before Judge Williams in 1992 because it is the same claim decided by Judge Wolff in 1989. He interprets the Wolff decision as a finding that he was not operating a commercial sanitary landfill requiring a permit. He maintains, moreover, that the Consent Agreement allows him to place on his land off-site tree materials for farming. Because his land filling activity has not changed, he argues that the County's counterclaim is but another attempt to force him to apply for a commercial sanitary landfill permit.

   He maintains that in the 1989 action, the County argued that he was running a landfill, and Judge Wolff concluded that he was farming. Therefore, the court implicitly found that he was not running a landfill. He maintains that the purpose of the County[***11] has always been to regulate his activities as a landfill, that the County's claims arise from the same transaction, and that only the County's legal theory has changed, nothing else.

   He argues that the County's two claims are the same based on the same evidence test or the transaction test of the Restatement (Second) of Judgments. He claims the same evidence would sustain the present action and the 1989 action. He also argues that the evidentiary facts in both actions constitute a series of connected transactions. He maintains that the only distinguishing factor between the present litigation and the 1989 action is the County's attempt to use a different ordinance to regulate his land filling activities, i.e., Bill No. 28-90 rather than the grading permit ordinance. He asserts that res judicata bars the County from again arguing[*269] that his conduct constitutes the operation of a commercial landfill, that he is not farming, and that he must therefore obtain a permit.

   B.

   The doctrine of res judicata bars the litigation of a cause of action or claim after it has already been or could have been decided. See DeLeon v. Slear, 328 Md. 569, 580, 616 A.2d 380, 385 (1992). The[***12] rule of res judicata was set forth in Alvey v. Alvey, 225 Md. 386, 390, 171 A.2d 92, 94 (1961), as follows:
 
a judgment 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.
 
In DeLeon, 328 Md. at 580, 616 A.2d at 385, this Court restated the elements of the traditional principle of res judicata:
 
(1) the parties in the present litigation should be the same or in privity with the parties to the earlier case; (2) the second suit must present the same cause of action or claim as the first; and (3) in the first suit, there must have been a valid final judgment on the merits by a court of competent jurisdiction.
 
The focus of this controversy is on the second element of res judicata: whether the claim presented before Judge Williams is the same "claim" or "cause of action" presented to and decided by Judge Wolff. If they are the same, res judicata bars the County from proceeding before Judge Williams. In [***13] Kent County Bd. of Educ. v. Bilbrough, 309 Md. 487, 499, 525 A.2d 232, 238 (1987), we adopted the transaction test of § 24 of the Restatement (Second) of Judgments as the basic test for determining when two claims or causes of action are the same for purposes of res judicata. We quoted § 24(2) with approval:
[*270]  
What factual grouping constitutes a "transaction", and what groupings constitute a "series", are to be determined pragmatically, giving weight to such considerations as whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties' expectations or business understanding or usage.
 
Bilbrough, 309 Md. at 498, 525 A.2d at 238. Applying the Bilbrough factors, and reviewing the two claims from a transactional analysis [**1162] approach, we conclude that the claim raised in the second action, the action before Judge Williams, was not the same as the claim decided in the prior adjudication, the action before Judge Wolff. They are separate transactions.

   We shall first address whether the facts are related in time, space, origin, or motivation. The[***14] conduct complained of by the County occurred at different times. The counterclaim addressed Gertz's failure to obtain a landfill permit following the enactment of the Ordinance in 1990, while the contempt action addressed Gertz's filling activity in 1989 under the Consent Agreement. Both of the County's claims relate to the same space, focusing on the filling activity on Gertz's property in Anne Arundel County. Nevertheless, the County's claims originated from different sources. Significantly, the theory of liability in the instant action did not exist when the earlier suit was litigated; thus, Gertz's argument that the counterclaim is barred because the County merely changed its legal theory is inapposite. Although res judicata generally bars a second suit based on a different legal theory applied to the same set of facts previously litigated, that rule does not apply here because it assumes that the second theory of liability existed when the first action was litigated. See Bilbrough, 309 Md. at 495-97, 525 A.2d at 236-37. When the contempt action was litigated, the County had no right to proceed against Gertz under the Ordinance because it had not yet been enacted.

   In terms[***15] of motive, the County's two claims were motivated by different considerations. In the contempt action, the County sought to enforce the Consent Agreement and to regulate[*271] activity related to land grading. It was not an attempt to regulate Gertz's activities as a sanitary landfill requiring a landfill permit. The motive of the County in the instant action, by contrast, was to enjoin Gertz's activities only until such time as he obtained a landfill permit in compliance with the requirements of the Ordinance. The motive of the County in enacting the Ordinance was stated in the findings of fact of Bill No. 28-90: the existing regulation of sanitary landfill operations, particularly rubble landfills, was inadequate, requiring the adoption of interim regulations, n3 effective for one year, to ensure orderly development of sanitary landfills, including rubble landfills. The recital went on to state that this regulation was necessary to protect and promote the health, safety, and welfare of the citizens of Anne Arundel County. Based on these interests, the County filed the counterclaim to enjoin Gertz's land filling activity only until such time as he complied with the new law.

n3 Section 3 of the Ordinance reads as follows:
 
That the provisions of this Ordinance shall be applicable for one year after the effective date of Bill 28-90 and shall expire thereafter without any further action of the County Council.

[***16]

   We shall next consider whether the facts form a convenient trial unit. The County's present and prior claims would not have formed a convenient trial unit in the earlier litigation because the County's rights under the Ordinance did not exist until April 23, 1990, and therefore could not have been litigated in the contempt action in 1989.

   Finally, we shall address whether treating the facts as separate trial units conforms to the parties' expectations or business understanding or usage. Certainly the County did not consider the Wolff decision to exempt Gertz from all future regulations relating to sanitary landfills. Gertz could not have expected that the Wolff decision determined that he was not running a sanitary landfill, or that it exempted him from future sanitary landfill regulations. Significantly, Judge Wolff expressly indicated that his decision was not intended to affect the County's ability under its police power to adopt [*272]prospective legislation that regulated activity like Gertz's as a sanitary landfill. We find that Judge Wolff only decided that Gertz was farming and did not determine whether he was running a sanitary landfill.

   We conclude that Gertz could not have[***17] expected the Consent Agreement to exempt him from a sanitary landfill permit requirement enacted pursuant to a legitimate exercise of the governmental power. Furthermore, the counterclaim of the County for injunctive relief to enforce the Ordinance is [**1163]not the same claim that was litigated in the contempt action. Accordingly, the doctrine of res judicata does not bar the County from proceeding before Judge Williams.

   III.

   The Court of Special Appeals also found that the Duckett decision "became the law of the case," and concluded that as a result, Judge Williams was barred from considering whether the Ordinance applied to Gertz's activities. We disagree. The order of Judge Duckett was not the law of the case and was subject to revision under Maryland Rule 2-602(a). n4 Thus, Judge Williams was not precluded by the order from applying the provisions of the Ordinance to Gertz.

n4 Maryland Rule 2-602 provides in pertinent part:

   (a) Generally.--Except as provided in section (b) of this Rule, an order or other form of decision, however designated, that adjudicates fewer than all of the claims in an action (whether raised by original claim, counterclaim, cross-claim, or third-party claim), or that adjudicates less than an entire claim, or that adjudicates the rights and liabilities of fewer than all the parties to the action:

   (1) is not a final judgment;

   (2) does not terminate the action as to any of the claims or any of the parties; and

   (3) is subject to revision at any time before the entry of a judgment that adjudicates all of the claims by and against all of the parties.

[***18]

   Maryland Rule 2-602(a) makes clear that an order that does not adjudicate all of the claims in an action, or that adjudicates less than an entire claim, or that adjudicates the liabilities of fewer than all the parties to the action is not a final judgment and may be revised at any time before the[*273] entry of a final judgment. See Rohrbeck v. Rohrbeck, 318 Md. 28, 44, 566 A.2d 767, 775 (1989) (until there is a final judgment, under Maryland Rule 2-602, all prior rulings remain interlocutory and subject to revision). We have held, moreover, that "as a general principle, one judge of a trial court ruling on a matter is not bound by the prior ruling in the same case by another judge of the court; the second judge, in his discretion, may ordinarily consider the matter de novo." State v. Frazier, 298 Md. 422, 449, 470 A.2d 1269, 1283 (1984).

   The Duckett decision falls within the terms of Rule 2-602(a). The order did not address Gertz's claims for breach of contract or violation of § 1983, nor the County's request for authorization to inspect Gertz's property to ensure his compliance with the Consent Agreement. On Gertz's claim for declaratory judgment, the order did not address[***19] whether the Ordinance was applied retroactively in violation of his constitutional rights, or whether the requirement that Gertz obtain a permit under the Ordinance and the County's application for an injunction for his failure to do so effected an unconstitutional taking of his property. Judge Duckett also did not reach the question of damages and he did not purport to grant final judgment to Gertz. See Rohrbeck, 318 Md. at 41, 566 A.2d at 773. Thus, Judge Williams was free to apply the Ordinance to Gertz.

   IV.

   Finally, we shall consider whether the actions of the County give rise to a cause of action under 42 U.S.C. § 1983. n5 Judge Williams found that Gertz suffered no constitutional deprivation and was therefore not entitled to damages under § 1983. We agree. The Court of Special Appeals found:

n5 42 U.S.C. § 1983 provides in pertinent part:
 
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

[***20] [*274] 

   Based upon the ruling by Judge Duckett, which became the law of the case, that the ordinance was not applicable to the Gertz situation because of Judge Wolff's "farming operation" ruling, we hold that 42 U.S.C. § 1983 does not apply to the matter at bar. Although the County may have attempted to divest the right of Gertz to conduct filling activities on his property for agricultural purposes, that particular statute was ruled not to apply to the Gertz operation. 
 
Although we find that the Ordinance applies to Gertz's land filling activity, we affirm the [**1164] holding of the intermediate appellate court that Gertz is not entitled to damages under § 1983.

   Gertz does not contend that the County lacked the power to enact the Ordinance, nor does he attack the validity of the Ordinance facially. He only argues that, as applied to him, the new sanitary landfill law is unconstitutional. His argument is that, because the farming provision of the Consent Agreement and the Wolff decision concern the same land filling activity regulated under the Ordinance, the County's efforts breached the Agreement, violated his right to substantive due process, and effected a taking of the equivalent[***21] of a permit to fill his land with raw tree materials, thus giving rise to a cause of action under 42 U.S.C. § 1983. We disagree.

   Gertz does not have a cause of action under § 1983 for a violation of his constitutional rights. He was subject to the Ordinance and failed to obtain a sanitary landfill permit. The actions of the County did not effect an unconstitutional taking of property because the Consent Agreement never entitled Gertz to an exemption from future legislation which was validly enacted under governmental power to regulate all sanitary landfills in Anne Arundel County. We therefore deny Gertz's § 1983 claim.
 
   In sum, we hold that neither the doctrine of res judicata nor the Duckett decision barred the application of the Ordinance to the activity of Robert E. Gertz. We also hold that the actions[*275] of the County do not give rise to a cause of action under 42 U.S.C. § 1983.
 
JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED IN PART, REVERSED IN PART. CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO REINSTATE THE JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY. COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID BY APPELLANT/CROSS-APPELLEE[***22] GERTZ. 

                       
JOAN A. PARA et al. v. THE RICHARDS GROUP OF WASHINGTONLIMITED PARTNERSHIP et al. 
No. 131, September Term, 1994
 
COURT OF APPEALS OF MARYLAND
 
339 Md. 241; 661 A.2d 737; 1995 Md. LEXIS 94
 
   July  20, 1995, Filed

   PRIOR HISTORY: [***1]

   Appeal from the Circuit Court for  Anne Arundel  County pursuant to certiorari to the Court of Special Appeals. Robert H. Heller, Jr., JUDGE.

DISPOSITION: JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANTS.

CORE TERMS:  principal contractor, subcontractor, subcontract, principal contract, antecedent, workers' compensation, summary judgment, contractor, third party, contracted, occupation, developer, owner-developer, residential, undertaken, general contractor, workman, immune, anticipate, coverage, Workers' Compensation Act, third parties, formation, execute, signing, cause of action, liable to pay, homesites, covering, build

COUNSEL: ARGUED BY George S. Tolley, III (Gilbert H. Robinette, Bruce J. Babij, Robinette, Dugan & Jakubowski, P.A., on brief) of Baltimore, MD, FOR APPELLANTS. 
 
ARGUED BY John T. Bergin (Kevin J. McCarthy, McCarthy, Bacon & Costello, on brief) of Lanham, MD, FOR APPELLEES.

JUDGES: Eldridge, Rodowsky, Chasanow, Karwacki, Bell, Raker, JJ.

OPINIONBY: CHASANOW

OPINION: [*243]
 
[**739] Opinion by Chasanow, J.
 
Filed: July 20, 1995
 
In the instant case, we must determine whether the owner and developer of a housing development who serves as the general contractor can be considered a statutory employer under the Maryland Workers' Compensation Act and whether, because of the statutory employer status, can be immune from tort liability in a suit arising out of the death of a subcontractor's employee. We hold that in the instant case, the owner/developer[*244] is a statutory employer and is therefore immune from tort liability.

   I.

   On December 21, 1989, The Richards Group of Washington, Limited Partnership ("Richards"), an owner and developer of new home sites, signed a contract with Razzano & Fohner, Inc. ("Razzano & Fohner") to do plumbing work on the houses under construction in section five of a new home development called Crofton Village, located in Anne Arundel County. The property on which the work was to be done was owned by Richards. Under the terms of this contract, Richards [***2]was known as the "contractor" on the Crofton Village project and Razzano & Fohner was designated as the "subcontractor." Additionally, the contract required that while working on the project, Razzano & Fohner maintain workers' compensation insurance covering its employees and that Richards be listed as a named insured on Razzano & Fohner's insurance policy.

   On February 2, 1991, prior to the accident giving rise to this cause of action, Richards entered into a contract for the sale of lot 37, section 5 of Crofton Village subdivision with Joseph and Lily Chang ("the Chang Contract"). This contract was later voided, subsequent to the accident in question, when Richards learned that the Changs intended to use the property for investment purposes. After the accident, on August 23, 1991, Richards entered into a contract of sale for lot 37, section 5 with Thomas Harrington and Rebecca Ebeling.

   On March 19, 1991, Brian Para, an employee of Razzano & Fohner, who was performing excavation and trenching work on lot 37, section 5 in connection with Razzano & Fohner's contract with Richards, was killed when the trench in which he was working collapsed. Joan Para, as executrix of her son's estate[***3] and individually with her husband, Carl Para, brought suit against Richards, Enterprise Washington Corporation, and Anne Arundel County in the Circuit Court for Anne[*245] Arundel County. n1 The complaint alleged counts for negligence and wrongful death against each of the parties. The complaint identified Richards as being in the "business of promoting and supplying general and specialized contracting services in the construction of condominiums, townhouses and residential homesites" and as the "general contractor[] in the construction and erection of residential homesites in ... 'Crofton Village.'" In response to the complaint, Richards filed a motion for summary judgment contending that it was entitled to judgment as a matter of law because, under the then existing codification of the statutory employer provision of the Maryland Workers' Compensation Act, Maryland Code (1957, 1985 Repl. Vol., 1990 Cum. Supp.), Article [**740] 101, § 62, n2 Richards was Para's statutory employer and was therefore immune from liability in a personal injury action. We note that Article 101, § 62 was transferred, with revisions, effective October 1, 1991 to Md. Code (1991), Labor and Employment Art., § 9-508. [***4] n3 See Chapter 8 of the Acts of 1991. The Revisor's Note to § 9-508 states that "this section is new language derived without substantive change from former Art. 101, § 62." Thus, because the transfer of the statutory employer provision did not affect a substantive change, we will refer to § 9-508 in the course of this opinion. Art. 101, § 62 provided in pertinent part:

n1 Enterprise Washington Corporation was the general partner of the Richards Group. Following the grant of summary judgment as to Richards, summary judgment was granted in favor of Enterprise on June 17, 1994. The Para's argued in their complaint that Anne Arundel County was negligent in that the agents of the county who inspected the site "knew or through the exercise of reasonable care should have known, that the soil of the premises known as Crofton Village was sandy and exceedingly unstable, thereby rendering any trenching or excavation work performed on it inherently dangerous and hazardous." Anne Arundel County's liability is not before this Court on the present appeal.

n2 Unless otherwise specified, all references to Article 101, § 1 et seq. are to Maryland Code (1957, 1985 Repl. Vol., 1990 Cum. Supp.).

[***5] 

n3 Unless otherwise specified, all references to § 9-508 are to Md. Code (1991), Labor and Employment Art.

[*246]

 
"(a) When any person as a principal contractor, undertakes to execute any work which is a part of his trade, business or occupation which he has contracted to perform and contracts with any other person as subcontractor, for the execution by or under the subcontractor, of the whole or any part of the work undertaken by the principal contractor, the principal contractor shall be liable to pay to any workman employed in the execution of the work any compensation under this article which he would have been liable to pay if that workman had been immediately employed by him; and where compensation is claimed from or proceedings are taken against the principal contractor, then, in the application of this article, reference to the principal contractor shall be substituted for reference to the employer...."
 
Our current statutory employer provision codified at § 9-508
 
provides:
 
"Liability of principal contractor for compensation.

   (a) In general.[***6] -- A principal contractor is liable to pay to a covered employee or the dependents of the covered employee any compensation that the principal contractor would have been liable to pay had the covered employee been employed directly by the principal contractor if:

   (1) the principal contractor undertakes to perform any work that is part of the business, occupation, or trade of the principal contractor;

   (2) the principal contractor contracts with a subcontractor for the execution by or under the subcontractor of all or part of the work undertaken by the principal contractor; and

   (3) the covered employee is employed in the execution of that work."
 
Richards argued that it was a general contractor on the Crofton Village project and that Razzano & Fohner had entered into an agreement with Richards as subcontractors on the project. Richards therefore argued that it was Para's statutory employer and that Para's exclusive remedy was through the Workers' Compensation Act. Appellants, the[*247] Paras, responded to the motion for summary judgment by arguing that Richards could not be Para's statutory employer because, at the time of the accident, Richards was the owner[***7] of the lot on which Para was injured and the owner of property could not be a statutory employer without first entering into a contract with a third party to perform work and then delegating part of that work under a subcontract. Richards later filed a Supplemental Memorandum in Support of Motion for Summary Judgment in which it introduced the Chang contract to refute the Paras' assertions that Richards was the owner of the property at the time of the accident. The Paras then filed a response, arguing that under workers' compensation law, a statutory employer is established only if there is an existing principal or antecedent contract with a third party at the time the subcontract is entered into. Thus, the Paras argued, because the Chang contract was not in existence at the time of the formation of the subcontract between Richards and Razzano & Fohner, Richards could not be considered Para's statutory employer.

   A hearing on Richards's motion for summary judgment was held before Judge Robert H. Heller, Jr. n4 Judge Heller issued a [**741] Memorandum Opinion and Order granting Richards's motion for summary judgment. Judge Heller recognized the existence of the Chang contract, but noted[***8] that "the existence of the Chang Contract is not dispositive of the Court's decision to grant the motion [for summary judgment]." Instead, the court found that:

n4 We note that the hearing on Richards's motion for summary judgment was held before the filing of Richards's supplemental memorandum noting the existence of the Chang contract. Nonetheless, the judge's Memorandum Opinion and Order following the hearing was issued subsequent to the filing of Richards's supplemental memorandum.

   
 
"The Court agrees with Plaintiffs that there was no 'antecedent undertaking, or principal contract' to build the townhouse for a third party, prior to the December 21, 1989 'Subcontractor's Contract' between Richards Group and R & F.... Although Richards Group had not contracted to[*248] build the townhomes prior to December 21, 1989, it was known and understood by all the parties that the townhomes to be developed in Crofton Village were eventually to be sold to the public. The Court notes that in developing residential[***9] communities it is common practice for the owner-developer to execute 'subcontracts' prior to selling the property to third parties. The owner-developer, for example, will typically contract for the construction of roads, foundations, roofing, plumbing, and electrical work, prior to sale to the public."
 
The court further recognized the unfairness that would result if it accepted the Paras' argument that the contract with the Changs needed to precede the contract between Richards and Razzano & Fohner. The court noted:
 
"Plaintiffs admit that if, for example, Brian Para had died while working on Lot 36, which was pre-sold to a third party prior to December 21, 1989, then Richards Group would be a 'statutory employer.' This hypothetical demonstrates the inconsistencies and unfairness that may arise -- Employee X, injured on a pre-sold lot may be compensated by his 'statutory employer' under the Act, while Employee Y, injured on an unsold lot, may be left without a remedy under the Act because no statutory employer-employee relationship is deemed to have existed. Such inconsistency and unfairness is not in accord with the purpose of section 62, and contrary to the intent[***10] of the statute."
 
The court therefore found that "in this situation, the issue of whether a statutory employer-employee relationship exists, should not turn on the date each lot was sold to the public" and therefore granted the motion for summary judgment, finding that Richards was Para's statutory employer. The Paras filed a Motion for Reconsideration of Grant of Summary Judgment or, in the Alternative, for Entry of Final Judgment. On August 2, 1994, Judge Heller granted the Paras' request for certification of final judgment. The Paras subsequently filed a notice of appeal to the Court of Special Appeals. Prior to a determination by the Court of Special Appeals, we granted certiorari on the Paras' appeal to determine the[*249] important issues raised in the instant case. We agree with the trial judge's analysis of the instant case.

   II.

   In deciding the issues in the present case, we look both to our application of the statutory employer provision of our workers' compensation law in prior opinions and the purpose behind the provision. In Honaker v. W. C. & A. N. Miller Dev. Co., 278 Md. 453, 365 A.2d 287 (1976)("Honaker I"), this Court considered the requirements which must[***11] be met under former Art. 101, § 62 to establish statutory employer status. In Honaker I, we were asked to review the grant of summary judgment to a development company, building a single house on property it owned, in a tort suit brought by the employee of a contractor who was injured while installing the roof on the house. Looking to the language of Art. 101, § 62, we established that to invoke the provisions of Art. 101, § 62 required:
 
"(1) a principal contractor

(2) who has contracted to perform work

(3) which is a part of his trade, business or occupation; and

(4) who has contracted with any other party as a subcontractor for the execution by [**742] or under the subcontractor of the whole or any part of such work."
 
Honaker I, 278 Md. at 460, 365 A.2d at 291. We therefore observed that the statute:
 
"clearly requires two contracts, one between the principal contractor and a third party whereby it is agreed that the principal contractor will execute certain work for the third party, and another between the principal contractor and a person as subcontractor whereby the subcontractor agrees to do the whole or part of[***12] such work for the principal contractor."
 
Id. We noted that "subcontract" is defined as "'[a] contract with a person who owes labor or services under another contract, to perform some or all of the services or labor due.'" Honaker I, 278 Md. at 460, 365 A.2d at 292 (quoting Radin's Law Dictionary) (emphasis omitted). In this light, we found[*250] that in order for statutory employer status to exist, "there must be an original contract and a subsequent contract." Honaker I, 278 Md. at 461, 365 A.2d at 292. We therefore held that the owner-developer could not be considered a statutory employer and therefore immune from tort suit because there was no showing that a contract existed under which Miller agreed to build the house. Honaker I, 278 Md. at 463, 365 A.2d at 293. Thus, we found that summary judgment was improper and remanded the case to the trial court. Honaker I, 278 Md. at 463-64, 365 A.2d at 293. Upon remand, the owner-developer established that he had a custom building contract for the house in question. The Court of Special Appeals therefore found on appeal from a judgment against the owner-developer that the owner-developer did in fact meet the[***13] requirements to establish himself as a statutory employer and was therefore immune from tort suit. See W. C. & A. N. Miller Dev. Co. v. Honaker, 40 Md. App. 185, 194, 388 A.2d 562, 568 (1978), aff'd, Honaker v. W. C. & A. N. Miller Dev. Co., 285 Md. 216, 401 A.2d 1013 (1979)("Honaker II").

   In our more recent opinions, we have reaffirmed the requirement for a principal contract, which we also have styled as an "antecedent undertaking." See Lathroum v. Potomac Elec. Power Co., 309 Md. 445, 524 A.2d 1228 (1987); Brady v. Ralph Parsons Co., 308 Md. 486, 520 A.2d 717 (1987). In Lathroum, we held that the Potomac Electric Power Company ("PEPCO") could not be the statutory employer of an injured worker of a company hired by PEPCO to provide labor and services for several of PEPCO's power facilities. 309 Md. at 455, 524 A.2d at 1232. We found that PEPCO's statutory duty as a public utility to provide services to the public did not qualify it as a statutory employer with an antecedent undertaking. 309 Md. at 450-51, 524 A.2d at 1231. Similarly, in Brady we again noted that former § 62 required two contracts. We stated:
 
"The first contract is between[***14] 'the principal contractor and a third party whereby it is agreed that the principal contractor will execute certain work for a third party.' This has been referred to as an 'antecedent undertaking' or[*251] 'principal contract.' The second contract is between the 'principal contractor and a person as subcontractor whereby the subcontractor agrees to do the whole or part of such work' that the principal contractor agreed to perform for the third party. The work covered by the second contract (i.e., subcontract) must be work which is a part of the principal contractor's trade, business or occupation." (Citations omitted).
 
Brady, 308 Md. at 504, 520 A.2d at 727. We there stated that the requirement of two contracts meant that property owners could not be principal contractors and thus statutory employers "except in those situations where the owner also serves as a contractor for yet another entity." Brady, 308 Md. at 504 n.20, 520 A.2d at 727 n.20.

   In applying the reasoning of these prior opinions to the instant case, we must also be mindful of the purpose behind the Workers' Compensation Act and the enactment of the statutory employer provision. We have previously stated that [***15]the Workers' Compensation Act as a whole "should be construed as liberally in favor of injured employees as its provisions will permit in order to effectuate its benevolent purposes." Howard Co. Ass'n, Retard. Cit. v. Walls, 288 Md. 526, 530, 418 A.2d 1210, 1213 (1980); Vest v. Giant Food Stores, Inc., 329 Md. 461, 467, 620 A.2d 340, 342 (1993). In State v. [**743] Bennett Bldg. Co., 154 Md. 159, 140 A. 52 (1928), this Court set forth the rationale behind the statutory employer provision of the Workers' Compensation Act. The Court stated:
 
"It is common practice in certain trades for one party to agree for a reward to complete a certain work or undertaking, and then to enter into subcontracts with various parties providing for the execution by them respectively of specified parts of the whole work or undertaking, so that the whole or part thereof would be done by such subcontractors and their assistants. In this manner the principal contractor would avoid in part the responsibility for accidents happening in the carrying out of the work or undertaking. If this responsibility were so shifted upon parties too weak financially[*252] to meet it, and who had not secured compensation[***16] to their employees in one of the ways required by the statute, an injured workman, proceeding at common law or under the Workmen's Compensation Act, would obtain neither compensation nor damages. Furthermore, difficult questions arose with reference to whether the workman was the servant of the principal contractor rather than of his immediate employer, depending largely upon who had power to hire and discharge, to direct and control the workmen, and a variety of other circumstances. In order to obviate these contingencies, and more certainly to assure the workman his contemplated compensation, the statute has imposed ... a liability to pay upon the principal contractor, although he might not have been held at common law the employer of the injured workman."
 
Bennett Bldg. Co., 154 Md. at 161-62, 140 A. at 53. See also Palumbo v. Nello L. Teer Company, 240 F. Supp. 226, 230 (D. Md. 1965)("[the statutory employer provision] had the purpose of obviating the sometimes difficult and troublesome construction of who was an employee's employer on a construction project where there were numerous subcontractors and subsubcontractors, and to obviate the use of subcontractors[***17] and subsubcontractors as a device for avoiding financially responsible workmen's compensation coverage"). Thus, the purpose of the statutory employer provision is the protection of the injured worker who might otherwise receive no compensation for work-related injuries if the worker's immediate employer had not obtained workers' compensation coverage and had little resources to pay damages in a personal injury action. See Inner Harbor v. Myers, 321 Md. 363, 375, 582 A.2d 1244, 1250 (1990)("it is obvious that the General Assembly, in enacting [the statutory employer provision], intended principal contractors to bear the responsibility of workers' compensation coverage even if, indeed, especially if, its subcontractors had not procured their own workers' compensation insurance"); Cogley v. Schnaper & Koren Constr., 14 Md. App. 322, 332, 286 A.2d 819, 824-25 (1972)("We think the legislative purpose in enacting [the statutory[*253] employer provision of the Workmen's Compensation Act] was to further the benevolent concept of Workmen's Compensation and to achieve that result by providing an incentive to the principal contractor to see that his subcontractors carry Workmen's Compensation[***18] insurance upon their employees.") The statute also serves to "prevent evasion of compensation coverage by the subcontracting of the employer's normal work." 1C Arthur Larson, Workmen's Compensation Law § 49.00, at 9-1 (2d ed. 1986). See also Roland v. Lloyd E. Mitchell, Inc., 221 Md. 11, 19, 155 A.2d 691, 696 (1959)(noting that the purpose of the statutory employer provision is to provide protection to workers "by forestalling evasion of the Act by any employers who might seek to avoid its obligations by subdividing their operations through subcontracts"). n5 The statutory employer provision [**744]considers the principal contractor to be an employer of the subcontractors' workers and requires the principal contractor to carry workers' compensation for these employees. See Richard P. Gilbert and Robert L. Humphreys, Jr., Maryland Workers' Compensation Handbook § 3.3, at 40 (2d ed. 1993). In return for providing workers' compensation coverage, the principal contractor is[*254] immune from civil liability for injuries suffered by covered employees. See Art. 101, § 15; Md. Code (1991), Labor and Employment Art., § 9-509. 

n5 Gilbert and Humphreys also set forth the rationale behind the existence of Maryland's statutory employer statute:
 
"A dozen or more different employers might routinely have their work forces commingled while engaged in building a structure. Small or inexperienced subcontractors too often fail to obtain workers' compensation coverage or neglect to keep it in force. That occurrence causes an injured employee significant hardship because of the denial of speedy medical treatment and compensation benefits. It leaves the injured employee with little practical recourse except to bring suit against his employer (who usually has little, if any, fiscal responsibility), other subcontractors, or the principal contractor. Aside from the claimant's personal suffering, the principal contractor is exposed to repeated litigation inasmuch as he is most often perceived as having the deepest pockets. Conversely, unscrupulous contractors might seek to avoid the Act by requiring every worker to sign a subcontracting agreement. Injured workers would find themselves without a remedy under the Act since they would be considered to be uninsured subcontractors, and 'employees' of no one." (Footnote omitted).
 
Richard P. Gilbert and Robert L. Humphreys, Jr., Maryland Workers' Compensation Handbook § 3.3, at 39-40 (2d ed. 1993).

[***19]
 
   Having reviewed the purpose behind the statutory employer provision and our interpretation of that statute in light of the facts of previous cases, we now turn to a consideration of the application of this statute to the facts of the instant case.

   III.

   We initially note that despite the reference in our previous opinions to the principal contract as "antecedent" to the formation of a subcontract, our previous cases have never clearly presented the issue of whether the principal contract must precede a contract with a subcontractor or whether "antecedent" merely requires that a principal contract exist prior to the time of injury. The factual circumstances of the previous cases have required us only to consider the requirement that there must be a principal contract and a subcontract to perform work under the principal contract in order for the principal contractor to be considered a statutory employer. Our discussions focused primarily on whether or not a principal contract existed at all and whether the injured employee was performing work which was part of the principal contractor's trade, business or occupation such that the principal contractor and the subcontractor were[***20] working together "toward the execution of the whole of a particular work which the principal contractor had promised to perform." Bennett Bldg. Co., 154 Md. at 166, 140 A. at 55. See also Brady, 308 Md. at 505, 520 A.2d at 727; Long Company v. State Acci. Fund., 156 Md. 639, 646, 144 A. 775, 778 (1929). We have never before been asked to consider whether the principal contract must precede the subcontract where the principal contractor and the subcontractor both clearly anticipate the formation of principal contracts between the principal contractor and third parties. Although the Paras argue that our use of the term "antecedent" in our prior opinions requires that the principal contract be "antecedent" to the signing of the subcontract, "antecedent" may also properly be interpreted to[*255] mean that the principal contract must be "antecedent" to the injury giving rise to the cause of action. The language of former § 62 did not itself require that the principal contract be antecedent to the contract with the subcontractor, nor does it state that the owner of property cannot be a statutory employer. See Art. 101, § 62. Rather, the statute required that the principal contractor[***21] undertake "to execute any work which is a part of his trade, business or occupation which he has contracted to perform." Art. 101, § 62. Further, § 9-508, our current statutory employer provision, eliminated the language "which he has contracted to perform" while noting that such change was not to be considered a substantive change from former Art. 101, § 62. This suggests that there was never an intention on the part of the legislature to prohibit statutory employer status to a contractor who is engaged in work which is part of his business, occupation or trade and contracts with another as subcontractor to carry out part of the work which the contractor has undertaken where both parties anticipate that principal contracts with third parties will be formed while the work is progressing. [**745] We believe that the language of the statute clearly anticipates circumstances such as that in the instant case in which an owner-developer in the business of the development of residential communities and the building of homes for sale to the public enters into "subcontracts" with subcontractors and both parties anticipate contracts for the sale of the houses before or during the time the subcontractors[***22] are to perform the work. 

    In the instant case, we agree with the trial judge that, at the time of Para's death, Richards was a principal contractor who had contracted to perform work which was a part of its trade, business or occupation, and who had contracted with Razzano & Fohner for the execution of a portion of the work undertaken by Richards. Although in our previous opinions we have indicated that in order to be considered a statutory employer, there must be an "antecedent" undertaking on the part of the principal contractor, we feel that interpreting that term to require the principal contract to be antecedent to the formation of a subcontract, rather than antecedent to the injury[*256] would, under the facts of the instant case, controvert § 9-508's policy of protecting workers and preventing contractors from escaping the strictures of the Workers' Compensation Act by contracting out their work.

   We hold in the instant case that where an owner/developer seeks to build homes for sale to the public and the owner/developer enters into a contract with a subcontractor to do construction work on a group of lots, where the parties clearly anticipate that before or during construction the[***23] houses are to be sold to third parties, then the owner/developer will be deemed to be a statutory employer of any employee of the subcontractor who is injured while working on the contract if, at the time of the injury, there were one or more contracts with third parties for the sale of any of the lots on which the subcontractor is working pursuant to the subcontract. It may not even be necessary that the principal contractor have a contract for sale for the specific lot on which the subcontractor's employee is injured if the subcontractor has undertaken to perform work on a group of lots that are to be sold to the public, and at the time of the injury, one or more contracts exist between the principal contractor and a third party. The primary basis for the statutory employer status is that the owner/developer is in the business of building and selling homes and it is understood by the parties that the homes being built are to be sold to the public before or during construction and one or more are sold prior to the injury. Cf. Clendening v. London Assurance Co., 206 Tenn. 601, 336 S.W.2d 535, 538 (Tenn. 1960)(holding that builder who was in the business of building and selling homes and who had[***24] a contract for the building of a home in which employee of subcontractor was injured was to be considered a principal contractor for purposes of workers' compensation even though at the time of injury, he was the owner of the house being built). The subcontractor working on a development project covering several lots generally does not enter into a series of "mini contracts" for each lot on which the subcontractor's employees are to perform work. Rather, the subcontractor generally enters into one contract covering the work to be performed on [*257]all of the lots. Thus, a contract for the sale of any of the lots may provide the necessary "two contracts" for the relationship encompassed by the subcontract to establish the existence of the general contractor as a statutory employer. To hold otherwise might leave some employees of subcontractors with the unfortunate situation of finding themselves unable to receive workers' compensation simply because they were not "lucky" enough to have been injured on one of the lots which had already been sold to a third party.

   Applying § 9-508 to the facts of the instant case, it is clear that Richards undertook to perform work which was part of its[***25] business, occupation, or trade; that Richards further contracted with Razzano & Fohner to perform part of the work which Richards had undertaken; and that Para was killed while performing work under the contract between Richards and Razzano & Fohner. We see nothing in the language of § 9-508 which would be inconsistent with providing a general contractor statutory employer status as [**746] long as a principal contract exists at the time of the injury in question.

   In the instant case, the trial judge noted that the parties to the contract between Richards and Razzano & Fohner understood that the lots in the residential community were to be developed for sale to the public. The contract between the parties identifies Richards as the "contractor" and Razzano & Fohner as the "subcontractor." Additionally, the contract between Richards and Razzano & Fohner required Razzano & Fohner to provide workers' compensation covering its employees and to name Richards as an "other insured" under its workers' compensation policy. The complaint filed by the Paras further indicates the understanding of the parties as to the nature of their relationship. The complaint identifies Richards not only as the owner, [***26] but also as "the general contractors in the construction and erection of residential homesites in ... 'Crofton Village.'" n6 Thus, the record clearly[*258] supports the trial judge's conclusion that the parties understood that the lots on which Razzano & Fohner were working were to be developed into homesites to be sold to the public. 

n6 We do not mean to imply that the term "general contractor" is synonymous with "principal contractor." See Honaker v. W. C. & A. N. Miller Dev. Co., 278 Md. 453, 460 n.4, 365 A.2d 287, 291 n.4 (1976)(Honaker I); Kegley v. Vulcan Rail & Constr. Co., 203 Md. 476, 480, 101 A.2d 822, 823 (1954). We merely note the use of the term to denote the understanding of the parties in the instant case as to the nature of their relationship while working on the Crofton Village development.

   At the time of Para's accident, both a principal contract and a subcontract did in fact exist. Although there is no evidence of other sales contracts at the time of the accident, the record demonstrates[***27] that on February 2, 1991, prior to the accident giving rise to this cause of action, Richards entered into a contract with Joseph and Lily Chang for the sale of the lot on which Para was killed. Although this contract was later voided, it was in effect at the time of the accident in question. Merely because the contract was later voided does not void Richards's status as a statutory employer at the time of Para's death. Looking strictly to the language of the statute, it is clear that at the time of the accident out of which this cause of action arose, Richards was a principal contractor, having undertaken to perform work for a third party (the Changs) which was a part of its business, occupation, or trade, and having contracted with Razzano & Fohner to perform part of the work required under the Chang contract. We do not, however, suggest that Richards was a statutory employer of Razzano & Fohner's employees prior to the signing of the contract for the sale of any homes within the subdivision. We do not depart from out prior holdings that there must be two contracts -- one by which the principal contractor becomes obligated to do work and one by which part of this work is delegated[***28] to a subcontractor. We merely hold that where an owner/developer in the business of constructing homes for resale to the public contracts with a subcontractor to do part of the development and construction work and it is understood by the parties that the homes are being built for sale to the public, we will not require a principal contract to be antecedent [*259]to the contract formed with the subcontractor in order to fall within the purview of § 9-508.

   We do not believe that the purpose of § 9-508 is well served by holding that a worker of a subcontractor injured on the job will receive workers' compensation only if the lot on which he or she is injured was sold prior to the signing of the subcontract. As the trial judge in the instant case noted, it is commonplace for the owner/developer of a tract of land to be developed as a residential community to contract for the completion of certain construction work such as plumbing, roofing, electrical work, or other preparatory work prior to the formation of contracts for the sale of any of the lots. We do not believe that § 9-508 intends to exclude the workers of such subcontractors from workers' compensation coverage where the anticipated[***29] principal contract on one or more of the lots covered by the subcontract occurs prior to the time of injury but subsequent to the signing of the subcontract.

   Given our interpretation of the application of § 9-508 to the facts of the instant case, we [**747] hold that Richards was Para's statutory employer and that the Paras cannot maintain a cause of action sounding in tort against Richards. The lower court properly granted summary judgment in favor of Richards.
 
JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANTS.

                       
HALLE COMPANIES et al. v. CROFTON CIVIC ASSOCIATION et al. 
No. 129, September Term, 1994
 
COURT OF APPEALS OF MARYLAND
 
339 Md. 131; 661 A.2d 682; 1995 Md. LEXIS 92
 
   July  17, 1995, Filed

   PRIOR HISTORY: Appeal from the Circuit for  Anne Arundel  County pursuant to certiorari to the Court of Special Appeals. Martin A. Wolff, JUDGE.

DISPOSITION: [***1] JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY REVERSED. COSTS TO BE PAID BY RESPONDENTS IN EQUAL SHARES.

CORE TERMS:  special exception, variance, landfill, administrative hearing, de novo, novo, site, entrance, gravel, sand, acre, traffic, original application, Express Powers Act, original jurisdiction, access road, wetland, tribunal, public health, neighboring, mitigate, intersection, zoning, orphans', notice, rubble, Law of Zoning, de novo hearing, de novo review, impermissibly

COUNSEL: ARGUED BY: Steven P. Resnick (Kevin Reynolds, on brief) of Annapolis, MD for petitioner.
 
ARGUED BY: Lynn A. Robeson, Assistant County Attorney, (Phillip F. Scheibe, County Attorney; Stephen M. LeGendre, Deputy County Attorney, all on brief) all of Annapolis, MD.
 
ARGUED BY: Warren K. Rich (Rich and Henderson, P.C. on brief) of Annapolis, MD for respondent.

JUDGES: Murphy, C.J., Eldridge, Rodowsky, Chasanow, Karwacki, Bell, Raker, JJ.

OPINIONBY: KARWACKI

OPINION: [*134]
 
[**683] Opinion by Karwacki, J.
 
Filed: July 17, 1995
 
In this case, we shall analyze the authority of the Anne Arundel County Board of Appeals to impose a condition upon the grant of a special exception when that condition was not sought during earlier proceedings before the county administrative hearing officer.

   I
 
   This case originated from applications filed with the Anne Arundel County Department of Planning and Code Enforcement by the Halle Companies and its totally owned enterprise, Chesapeake Terrace (referred to collectively hereafter as "Halle"). Specifically, in 1990, Halle sought administrative approval for sand and gravel landfill operations. Those operations were to be conducted on approximately 108 acres of land located near the intersection of Routes 3 and 424, in Odenton, Maryland. n1 Of the 108 acres subject to the special exception [*135]request, only 35 acres of previously cleared property was proposed for sand and gravel extraction. Halle also sought[***2] approval for rubble landfill operations to be conducted at that same location on approximately 482 acres (including the 108 acres for the sand and gravel landfill). Of the 482 acres, only 150 acres of previously cleared property was contemplated for landfill use, to be accomplished through the sequential filling of a number of small cells on the property. Halle's applications for special exception and variance approval were denied by Anne Arundel County's administrative hearing officer. 

n1 The property in question is located nearly two miles northwest of the intersection of Maryland Routes 3 and 424, along Conway Road. It is bordered on the north by the Little Patuxent River and to the west by the Conrail railroad tracks.

   [**684] Halle appealed that decision to the Anne Arundel County Board of Appeals ("the Board"), which heard the appeal de novo, pursuant to § 603 of the Anne Arundel County Charter. n2 Evidence produced at the sixteen administrative hearings held over seventeen months demonstrated that the site[***3] was within a resource extraction area on the master plan of the County, was the subject of an existing special exception granted for a sand and gravel operation, and that the subject property had been mined off and on for 40 years. The site was likened to a moonscape, and photographs of the site showed debris, deep ravines, and erosion on the property.

n2 Anne Arundel County Charter, § 603 provides, inter alia, that "all decisions by the County Board of Appeals shall be made after notice and hearing de novo upon the issues before said Board."

   Photographs of the property showed trees falling into eroding ravines which were 30-45 feet deep, abandoned sediment basins, and unclaimed excavation pits. Illegal dumping, target shooting, and hunting regularly occurred on the property. After its site inspection, the Board observed that "because of previous mining which has occurred on this property, the land is cratered virtually up to the property line."

   Halle offered expert testimony on subjects including traffic[***4] impact and road improvements, environmental protection and wetland preservation, hydrology and ground water contamination, land use planning and development, civil and environmental[*136] engineering related to landfill development, and acoustical engineering. Each expert testified at length and addressed the impact of the landfill and sand and gravel operations at the site upon vicinal properties. The County and the protestants claimed that harsh environmental impact on the Patuxent River and the surrounding wetlands and floodplain would result, and further asserted that their primary concern was traffic. Patuxent Road access required truck travel along "a bad curve . . . referred to as a reverse horizontal curve," and also "would require disturbing major wetlands." Questions were raised as to "the relationship of the landfill to the 100 year flood plain on Patuxent Road," and the potential threat of Patuxent Road access to residential communities north and west of the site.

   Due to these concerns, Halle suggested an alternate access to the site from Conway Road at the first of the Board's sixteen hearings. Conway Road access would alleviate both the wetlands and traffic problems raised[***5] by the County and the protestants. It was also a shorter access route, would affect fewer people overall, and would direct the traffic further from the Patuxent River. The County Department of Public Works evaluated the proposed Conway Road access and concluded that such access was preferable because it addressed the traffic and environmental concerns.

   The County argued that the Board could not consider the access from Conway Road because Halle could not propose an alternative entrance after having filed the initial appeal. The Board rejected the County's argument:
 
"Although the County argues that the Petitioners could not suggest this alternative entrance after filing the initial appeal (an argument which this Board rejects), the County also indicated in its closing argument that the Conway Road entrance is a much better choice because it avoids the wetlands and the heavier traffic on Patuxent Road as well as directing the traffic further from the Patuxent River. This Board has often accepted modifications to an initial plan when the modifications were offered during the hearing process. There does not appear to be any reason that the[*137] proposed use of the Conway Road entrance[***6] must be rejected by this Board."

   After three months of deliberation, an on-site visit by the members of the Board to the property, and a review of the record taken as a whole -- consisting of more than 2,000 pages of transcribed testimony and voluminous documents -- the Board determined that the landfill would advance the public welfare of the County. It recognized the need for the landfill, concluded that its location was well suited to the use, and determined that the special exception and variance proposals [**685] would benefit the vicinal community by reclaiming and restoring previously mined ravines and properties "cratered" up to the property line. Accordingly, the Board granted the special exception and variance requests, subject to eight specific conditions. n3 

 n3 Two of the Board's conditions addressed the access issue:

   "The special exceptions for a sand and gravel operation and rubble landfill operation are granted with the following conditions:

   "1. Patuxent Road shall not be used as an entrance to the operation.

   "2. Conway Road is to be used as the entrance to the operations, with the following conditions:

   "a. A right turn lane shall be constructed on eastbound Conway Road at Maryland Route 3 to a minimum length of 500 feet.

   "b. From the intersection of Patuxent Road and Conway Road to the entrance of the site, the road shall be improved with 12 foot travel lanes and 8 foot shoulders improved to county standards (pursuant to Article 26, Section 3-202(d), Anne Arundel County Code) where the county right-of-way exists. Additionally, the Petitioners shall pursue a diligent course to obtain the right-of-way from private property owners where possible.

   "c. The Road improvements on Conway Road from Route 3 to Patuxent Road shall be constructed before any rubble landfill or sand and gravel operation begins; road improvements from the intersection of Conway Road and Patuxent Road to the entrance of the site are to be completed within one year of the start of operations.

   "d. The access obtained to the site from Conway Road shall be through a fee-simple right-of-way, not through an easement."

[***7]

   Petitioners, several community associations led by the Crofton Civic Association and eighteen individual property owners, sought judicial review of the decision of the Board in the Circuit Court for Anne Arundel County. The circuit court[*138] granted Anne Arundel County's motion to intervene and, after oral argument, reversed the decision of the Board, holding that the Board exceeded its de novo authority by imposing the Conway Road access as a condition of its special exception and variance approvals, as the Conway Road access went beyond the scope of the original application.

   The circuit court concluded that the condition of access from Conway Road was a "so-called" condition and not a proper one, because it in effect substantially augmented the property "touched" by Halle's application:

   "The central question, then, which this Court must resolve is whether the Board had the authority under its "de novo" power to address the Conway Road access even though it was not part of the original application.

    * * *
 
"[Halle] argues that the introduction of the Conway Road access was simply a new issue which the Board had every right to consider. The Court agrees with [Halle] [***8] that the Board, pursuant to its de novo power, can address new issues. Boehm [v. Anne Arundel County, 54 Md. App. 497, 459 A.2d 590 (1982)]. It cannot, however, indiscriminately entertain matters which in effect change the nature of the original controversy or application. In this case, the Board's entertainment of the Conway Road access was not a mere consideration of a new issue. It was much more. Indeed, given the amount of property affected by the Conway Road access and the intensity of the ancillary activities possibly to be performed thereon, the Board's decision impermissibly enlarged the substance of [Halle's] application. Therefore, it is the opinion of this Court that under the circumstances, the Board, in entertaining the Conway Road issue, expanded the scope of its inquiry to such a degree that the nature of the original application was significantly altered. In so doing, the Board exceeded the bounds of its de novo authority.

   "For the reasons aforementioned, this Court finds that the Board erred as a matter of law when it granted the[*139] special exceptions and variance beyond the scope of [Halle's] original application." (footnotes omitted).

   Halle noted[***9] an appeal to the Court of Special Appeals and then filed a petition for a writ of certiorari in this Court prior to consideration of the case by the intermediate appellate court. We granted certiorari to determine whether the Board exceeded its de novo authority in requiring the Conway Road access as a condition to the grant of the special exceptions and variance.

   [**686] II

   Petitioners first point out that the Board has the authority to impose conditions to the grant of special exceptions or variances to preserve the health, safety, and welfare of the community. Further, petitioners stress that the proceedings before the Board were conducted de novo, or as if the proceedings before the administrative hearing officer had never occurred. As the broad issue of access was before the administrative hearing officer, petitioners conclude that, pursuant to its de novo power, the Board had the authority to address the alternative access to the site.

   Respondents argue that Halle modified its application before the Board by proposing the alternative Conway Road access and thereby impermissibly expanded the scope of its original application. Further, respondents point out that the "amendment" [***10] for the new access road was not included in the notice of the public hearing and that Halle had not yet obtained ownership of the private access road intersecting with Conway Road. Consequently, respondents conclude that the circuit court was correct in reasoning that the proceedings before the Board of Appeals constituted an original rather than appellate proceeding regarding what was, in essence, a new application.

   III

   Under the Express Powers Act, Md. Code (1957, 1994 Repl. Vol.), Art. 25A, § 5(U), each county is authorized to[*140] create a board of appeals. Anne Arundel County, by its charter, created the Board of Appeals as an independent unit of county government and vested the Board with the power to hear de novo all appeals authorized by the Express Powers Act. n4 Anne Arundel County provides for initial action upon a special exception or variance request by an administrative hearing officer. Thereafter, appeal may be taken from the decision of the hearing officer to the Board of Appeals. Anne Arundel County Charter § 603 mandates that "all decisions by the County Board of Appeals shall be made after notice and hearing de novo upon the issues before said Board." The [***11] Board is purely a statutory creature and may exercise only those powers expressly granted to it by law or those which can be fairly implied. Baylis v. Mayor & City Council of Baltimore, 219 Md. 164, 168, 148 A.2d 429, 432 (1959).

n4 The Express Powers Act, Md. Code (1957, 1994 Repl. Vol.), Art. 25A, § 5(U) provides that a county board of appeals may make a decision
 
"on petition by any interested person and after notice and opportunity for hearing and on the basis of the record before the board, of such of the following matters arising (either originally or on review of the action of an administrative officer or agency) under any law, ordinance, or regulation of, or subject to amendment or repeal by, the county council, as shall be specified from time to time by such local laws enacted under this subsection: An application for a zoning variation or exception or amendment of a zoning ordinance map; the issuance, renewal, denial, revocation, suspension, annulment, or modification of any license, permit, approval, exemption, waiver, certificate, registration, or other form of permission or of any adjudicatory order; . . ."

[***12]

   The power to impose conditions upon the grant of a variance or special exception is one which is implicit in the power to grant a variance or special exception. "This is so because the whole basis for the exception is the peculiar hardship to the applicant, and the Board is justified in limiting the exception in such a way as to mitigate the effect upon neighboring property and the community at large." Id. at 169, 148 A.2d at 432. See also Skipjack Cove Marina, Inc. v. Board of County Comm'rs of Cecil County, 264 Md. 381, 287 A.2d 49 (1972); 3 Yokley, Zoning Law and Practice, § 21-12. Both a variance and a special exception authorize uses which[*141] otherwise would not be permitted. Having been given the power to authorize such unusual uses, the Board must also have the power to limit those uses to protect the health, safety, and welfare of the community. See Skipjack Cove Marina, Inc., 264 Md. at 386, 287 A.2d at 51 (The board is justified in limiting the special exception in such a way as to mitigate its effect upon neighboring property and the community at large.); 3 Rathkopf, The Law of Zoning and Planning, § 40.02[3] ("Even in the absence of any specific provision[***13] therefor in the ordinance, the board would thus have inherent power to condition a variance. If this were not so, the [**687] board, for lack of such right, might be forced, at times, to deny a variance and thus perpetuate the hardship which the restrictions have imposed upon the landowner.").

   IV

   Respondents cite the three cases in which we have previously addressed de novo review by a county board of appeals, United Parcel Serv., Inc. v. People's Counsel for Baltimore County, 336 Md. 569, 650 A.2d 226 (1994) ("UPS"); County Fed. Sav. & Loan Assoc. v. Equitable Sav. & Loan Assoc., Inc., 261 Md. 246, 274 A.2d 363 (1971), and Daihl v. County Bd. of Appeals, 258 Md. 157, 265 A.2d 227 (1970). In the latter two of those cases, however, we addressed the Board's jurisdiction rather than the scope of de novo review. In Daihl, we held that a board of appeals cannot review actions which were not appealed specifically:
 
"We think that the context in which the term de novo is used in Section 501.6 and 501.3 . . . means that on appeal there shall be a de novo hearing on those issues which have been appealed and not on every matter covered in the application. In[***14] this sense de novo means that the Board of Appeals may hear testimony and consider additional evidence pertaining to the issue or issues presented on appeal. See Vol. 2, The Law of Zoning and Planning, Rathkopf, ch. 65-30, § 7. The original nature of a de novo hearing with its quality of newness is in contra-distinction to a review upon the record as exists where matters are heard on[*142] certiorari. 73 C.J.S. Public Administrative Bodies and Procedure, § 204."
 
Daihl, 258 Md. at 162, 265 A.2d at 229. We made a similar holding in County Federal, quoting the above language from Daihl. County Federal, 261 Md. at 253-54, 274 A.2d at 367. Contrary to respondents' assertions, neither of these holdings affects the disposition in this case, as they show that we have consistently treated de novo appeals as wholly original proceedings, with the word "appeal" meaning simply that the proceedings are new and independent rather than strict review of prior proceedings. See also Lohrmann v. Arundel Corp., 65 Md. App. 309, 318, 500 A.2d 344, 348 (1985) ("the use of the word 'appeal,' to the extent it denotes review of the action of a lower tribunal, is a misnomer, [***15]for there is no review."); Hardy v. State, 279 Md. 489, 369 A.2d 1043 (1977); Travelers Indemnity Co. v. Nationwide Construction Corp., 244 Md. 401, 224 A.2d 285 (1966). Although the issues to be addressed on review by the Board may be limited, new and additional evidence is permitted. The proceedings, therefore, are wholly original with regard to all issues properly raised.

   In UPS, we interpreted the power granted by the Express Powers Act as providing charter counties the option to vest the board of appeals with either original jurisdiction or appellate jurisdiction over any subject matter set forth therein. UPS, 336 Md. at 588, 650 A.2d at 236. We concluded that it was the intent of the General Assembly that "under the Express Powers Act, a board of appeals is primarily an appellate tribunal, having only such original jurisdiction as a county's charter and ordinances expressly grant[.]" Id. at 591, 650 A.2d at 237.

   "The protestants also rely upon People's Counsel v. Crown Development, 328 Md. 303, 316, 614 A.2d 553, 559 (1992), where this Court held, inter alia, that on an appeal from the decision of administrative officials granting final approval[***16] of a development plan, the Baltimore County Board of Appeals was authorized under the Express Powers Act and local law to receive and consider evidence in addition to that contained in the record before the administrative[*143] officials. The Crown Development case, like the Hope [v. Baltimore County, 288 Md. 656, 421 A.2d 576 (1980)] case, was concerned only with the appellate jurisdiction of the Board of Appeals. Our holding with regard to additional or de novo evidence before the Board of Appeals does not support the view that the Board has original jurisdiction over all subjects delineated in § 5(U). The fact that an appellate tribunal may be authorized to receive additional evidence or hear a case de novo does not mean that it is exercising original jurisdiction. A de novo appeal is nevertheless an exercise of appellate jurisdiction rather than original jurisdiction. [**688] See Hardy v. State, 279 Md. 489, 492, 369 A.2d 1043, 1046 (1977). Whether a tribunal's exercise of jurisdiction is appellate or original does not depend on whether the tribunal is authorized to receive additional evidence. Instead, as Chief Justice Marshall explained, 'it is the essential[***17] criterion of appellate jurisdiction that it revises and corrects the proceedings in a cause already instituted, and does not create that cause. . . ." Marbury v. Madison, 5 U.S. (1 Cranch) 137, 175, 2 L. Ed. 60, 73 (1803)."
 
336 Md. at 589-90, 650 A.2d at 236. That decision, however, does not conflict with our prior interpretation of de novo proceedings. The Anne Arundel County Board of Appeals may not entertain a truly original petition for variance or special exception, but it may review the actions of the administrative hearing officer and take any action which that officer could have taken in the original proceeding. See Soothcage v. King, 227 Md. 142, 152-53, 176 A.2d 221, 227 (1961). Additional evidence may be presented in the de novo proceedings, and the Board may impose any conditions it feels necessary to protect the public health, safety, and welfare. It is appellate review mainly in the sense that a decision by the administrative hearing officer is a prerequisite to proceedings before the Board and not in the sense that the Board is restricted to the record made before the administrative hearing officer. See also 3 Rathkopf, The Law of Zoning and [***18]  Planning, § 37.01[7][a] ("A person aggrieved by the decision [of the[*144] administrative hearing officer] appeals to the board of appeals, asking it to rule upon the correctness of the administrative officer's determination; the board may reverse or affirm, wholly or partly, or may modify the order requirement, decision, or determination appealed from, and make such order, requirement, decision, or determination as, in its opinion, ought to be made in the case.").

   We are left, therefore, with a question of first impression in this state regarding the scope of a board of appeals' de novo review. We shall first determine whether the Board had the authority under its de novo power to address the Conway Road access in the first instance, as it was not part of the original application. Then we shall address whether the conditions imposed by the Board were proper.

   V

   The circuit court concluded that, although the Board could address issues not raised before the administrative hearing officer, it could not "indiscriminately entertain matters which in effect change the nature of the original controversy or application. . . . The Board, in entertaining the Conway Road issue, expanded [***19] the scope of its inquiry to such a degree that the nature of the original application was significantly altered."

   As acknowledged by the County in this case, and as noted by the Court of Special Appeals in Lohrmann v. Arundel Corp., 65 Md. App. 309, 319, 500 A.2d 344, 349 (1985)(quoting Boehm v. Anne Arundel County, 54 Md. App. 497, 511, 459 A.2d 590, 599):
 
"The de novo hearing contemplated by section 603 . . . 'is an entirely new hearing at which time all aspects of the case should be heard anew, as if no decision has been previously rendered[.]" (emphasis added).
 
Acting de novo, the Board exercises jurisdiction akin to original jurisdiction. See Kaouris v. Kaouris, 324 Md. 687, 714-15, 598 A.2d 1193, 1206 (1991); Volz v. State Roads Comm'n, 221 Md. 209, 214-15, 156 A.2d 671, 673 (1959). [*145]

   In Kaouris, we held that on appeal de novo from the orphans' court, a circuit court could consider issues not raised or decided below:
 
"A party is foreclosed from challenging for the first time on appeal, the propriety of the exercise by a court of its power to act. Where, however, the appeal is from an orphans' court to a circuit court pursuant[***20] to Courts Article § 12-502, the exercise of that orphans' court's power may be challenged in the circuit court even though the issue was not raised in the orphans' court. This is so because the matter is heard de novo."
 
324 Md. at 715-16, 598 A.2d at 1207; see also Barbee v. Barbee, 311 Md. 620, 537 A.2d 224 (1988) (directing the circuit court hearing a [**689] case de novo to determine issues not raised in the district court).

   As discussed in Part IV, supra, the Board conducts wholly original proceedings with regard to all issues properly before it, and may consider new and additional evidence beyond that introduced before the administrative hearing officer. The issue appealed to the Board was whether the sand and gravel and rubble landfill operations would be in the best interest of the public health, safety, and welfare. The main reasons for the administrative hearing officer's denial of Halle's application were the traffic and environmental impacts the Patuxent Road access would produce. Although the Conway Road access was not specifically discussed in the prior proceedings, the broad issue of access was addressed. The same issue of how access to the site would affect[***21] the public health, safety, and welfare was raised before the Board, but, in essence, different evidence was used to prove Halle's position that the public safety would not be in danger. In a de novo hearing before a board of appeals, new or different evidence beyond that presented during the original proceeding may be used concerning any issue properly before the tribunal. See Daihl and UPS, supra .

   We reject an interpretation of the County's two-tier process that would preclude the Board from addressing by condition[*146] any aspect of a zoning proposal which might affect the public welfare. The access issue was so inextricably intertwined with the administrative hearing officer's decision that it was an issue properly before the Board which could be addressed.

   VI

   Although we have never clearly defined the scope of the de novo powers of a county board of appeals in zoning cases, we have made it clear that a board of appeals can, and should in many cases, impose conditions when granting a special exception or variance to protect the public welfare. See, e.g., Rohde v. County Board of Appeals, 234 Md. 259, 199 A.2d 216 (1964); Montgomery County v. Mossburg[***22] , 228 Md. 555, 180 A.2d 851 (1962); Oursler v. Board of Zoning Appeals, 204 Md. 397, 104 A.2d 568 (1954). "It has long been held and is firmly established that it is not only proper but desirable to attach to the grant of a special exception conditions which do not violate or go beyond the law and are appropriate and reasonable." Mossburg, 228 Md. at 558, 180 A.2d at 852.

   The power of the Board to address all issues properly before it by condition goes hand-in-hand with the authority to take whatever action the administrative hearing officer could take if presented with the same evidence. After determining that permitting the proposed operations would be in the best interest of the public, therefore, the Board had the authority to address the access issue by imposing conditions as part of its de novo power.

   Respondents contend that the condition imposed by the Board of Appeals was only a "so-called" condition rather than a true condition. In support of this conclusion, respondents point to the circuit court's reasoning:
 
"The Court of Appeals, in Baylis v. City of Baltimore, 219 Md. 164, 148 A.2d 429 (1959), summarized the nature and scope of conditions imposed upon special [***23]exceptions: 'The Board is justified in limiting the [special] exception in such a way as to mitigate the effect upon neighboring property and the community at large.' Baylis, 219 Md. at 169[*147] (emphasis added). A review of the circumstances in this case reveal that the Board's 'condition' of the Conway Road access is contrary to the characterization of the term as described by the Baylis court."
 
This analysis, however, ignores the findings by the Board that the Conway Road access would alleviate the wetland and traffic problems associated with the landfill and "mitigate the effect upon neighboring property and the community at large." The main difficulty with which the circuit court seems to have struggled is the fact that Halle did not own the property across which the Conway Road access would be built. The circuit court believed that a separate administrative proceeding was necessary for approval of such access:
 
"[**690] It seems logical to this Court that an access road of the significance as the one here must also be authorized by a special exception. To authorize such a substantial use as a 'condition' of the special exception, rather than authorizing the use of the[***24] access pursuant to a specific special exception grant, is contrary to reason and adverse to the plain reading and spirit of the zoning statute."

   In Rohde, supra, we upheld a special exception to which a board of appeals had imposed a condition similar to the one at issue in this case. There, we upheld a condition that access be acquired over property owned by third parties. The developer proposed to reclassify 37 acres of undeveloped land to a zoning classification which permitted apartment development, and sought a special exception permitting two high rise apartment buildings on the tract. The reclassification allowed 592 apartment units, and the special exception would add 240 more. The court noted:
 
"A proposal . . . [had] been pending for some time, to extend a substantial highway known as Goucher Boulevard so as to run southeast from Taylor Avenue and connect with Loch Raven Boulevard. As planned, it would pass close to the northeast side of the Ortel land, but would not actually touch that tract. A small strip of land, now zoned R-6[*148] would be left between, but would be useless for development purposes."
  
Rohde, 234 Md. at 263, 199 A.2d at 218. The board[***25] of appeals granted both the reclassification and the special exception conditioned upon the extension of Goucher Boulevard for access. We addressed the contention that the special exception could not be granted due to the uncertainty of the completion of the Goucher Boulevard extension in our holding:

   "In reaching this conclusion, we have not overlooked Bonhage v. Cruse, supra, [233 Md. 10, 194 A.2d 803 (1963)], which involved the same provision of the Baltimore County Zoning Regulations. There, we found that there was no assurance that a side street which led into a development behind the subject property would be widened, and that unless this street were widened it could not be shown that congestion would not result. Consequently Section 502.1 b was not satisfied. The situation here presented is different in that the extension of Goucher Boulevard is required as a condition precedent to construction and access to that new road is implicitly required, so that we think the Board could find that with the new road built and with access to it provided, it appeared that traffic congestion would not result from the grant of the exception."
 
Id. at 265, 199 A.2d at 219-20. [***26] Similarly, Halle must obtain a fee simple estate rather than an easement in the Conway Road access land before the landfill operations may proceed. That was explicitly made a condition of the Board's grant of the exception and variance. The uncertainty of a prerequisite's occurrence is irrelevant if the Board is satisfied that, once that prerequisite occurs, the approved activities would be appropriate. See also Gulick v. Board of Environmental Protection, 452 A.2d 1202, 1210 (Me. 1982) ("The Board is free to set any conditions that fall within the range of its statutory authority. If any of those conditions require action by someone other than the applicant itself, it is up to that applicant to get whatever agreements or guarantees it needs."). The Board here imposed a true condition, not an illusory one. Contrary to the circuit court's conclusion, the condition imposed[*149] does in fact restrict Halle's use of the property. We shall uphold that condition, as it is justifiable in terms relating to the public health, safety and welfare. See 3 Yokley, Zoning Law and Practice, § 21-12; Exxon, Inc. v. City of Frederick, 36 Md. App. 703, 375 A.2d 34 (1977) (special exception[***27] conditioned upon entrance to and exit from gas station being positioned at a specific location).

   VII

   The circuit court also determined that because of the "intensity of the ancillary activities possibly to be performed, the Board's decision impermissibly enlarged the substance of respondents application." Petitioners contend that this conclusion was erroneous, and that "the 'fundamental flaw' in the [**691] court's reasoning was that on its face, neither the Board's opinion nor the condition at issue authorized these facilities along the access road." Petitioners are correct, as the Board's order merely grants landfill and sand and gravel approval for the property; it does not mention off-site support facilities.

   It is true that at the first hearing before the Board, Halle submitted an exhibit depicting support facilities along the alternative access and off of the 482 acres. After inquiry by the Board, however, Halle agreed to locate the support facilities within the 482 acres and submitted exhibits specifically locating them in that area. Halle stated that it could seek a subsequent special exception if it later desired to locate those facilities along the access road.

   The Board recognized[***28] that the scope of Halle's application was limited to the 482 acre tract and appropriate access. Uses outside that tract were a question to be resolved in a separate application; hence, Halle agreed to keep the facilities within the acreage at issue. Nowhere in its opinion did the Board authorize support facilities along the access road, and the circuit court incorrectly concluded otherwise.
 
JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY REVERSED. COSTS TO BE PAID BY RESPONDENTS IN EQUAL SHARES. 

WILLIE JAMES OAKS et al. v. ANNA CONNORS et al. 
No. 113, September Term, 1994
 
COURT OF APPEALS OF MARYLAND
 
339 Md. 24; 660 A.2d 423; 1995 Md. LEXIS 86
 
   June  26, 1995, Filed

   PRIOR HISTORY: [***1] Certiorari to the Court of Special Appeals (Circuit Court for  Anne Arundel  County). H. Chester Goudy, JUDGE.

DISPOSITION: AS TO APPELLANT GIANT FOOD, INC., JUDGMENT OF THE COURT OF SPECIAL APPEALS VACATED; CASE REMANDED TO THAT COURT WITH DIRECTIONS TO AFFIRM THE JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY IN FAVOR OF GIANT FOOD, INC.
 
AS TO APPELLANT WILLIE JAMES OAKS, THAT PART OF THE JUDGMENT OF THE COURT OF SPECIAL APPEALS AWARDING LOSS OF CONSORTIUM DAMAGES TO APPELLEES VACATED; CASE REMANDED TO THAT COURT WITH DIRECTIONS TO AFFIRM THAT PART OF THE JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY DELETING IN ITS ENTIRETY THE AWARD OF LOSS OF CONSORTIUM DAMAGES TO APPELLEES.

   COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID BY APPELLEES.

CORE TERMS:  noneconomic, cap, loss of consortium, spouse, servant, travel, marital, duties, marital relationship, consortium, mileage, tortious conduct, personal injury, reimbursement, respondeat superior liability, furthering, loss of consortium claim, personal injury action, noneconomic damage, vicariously liable, derivative, suffering, pain, negligent driving, plain meaning, motor vehicle, jury trial, en route, traveling, driving

COUNSEL: ARGUED BY Charles E. Gallagher, Jr. (Neil J. MacDonald, DeCaro, Doran, Siciliano, Gallagher, Sonntag & DeBlasis, on brief) of Lanham, MD.
 
ARGUED BY Margaret Fonshell Ward (William J. Jackson, P.C., Semmes, Bowen & Semmes, on brief) of Baltimore, MD, FOR PETITIONERS.
 
ARGUED BY Phillips P. O'Shaughnessy (Phillips P. O'Shaughnessy, P.A.; Joseph A. Miklasz and Stacy O'Neil, on brief) of Glen Burnie, MD, [***2] FOR RESPONDENTS.

JUDGES: ARGUED BEFORE: Murphy, C.J.; Eldridge, Rodowsky, Chasanow, Karwacki, Bell, and Raker, JJ.

OPINIONBY: MURPHY
 
OPINION: [*27]
 
[**425] OPINION BY MURPHY, C.J.
 
Filed: June 26, 1995
 
This case involves an employer's liability to third parties for the negligent driving of its employee while en route to the employee's usual place of work in the employee's personal vehicle. We must also determine whether the statutory cap on noneconomic damages, codified as Maryland Code (1974, 1989 Repl. Vol.) § 11-108 of the Courts and Judicial Proceedings Article, is to be applied separately to the claim of an injured spouse and a loss of consortium claim by the marital unit. n1 

n1 Unless otherwise indicated, all statutory references are to the Courts Article.

   I.

   On July 5, 1989, Petitioner Willie James Oaks (Oaks) was on his way to work when he was involved in a motor vehicle accident with a van in which Anna Connors (Connors) was a passenger. n2 Earlier that day, there had been a thunderstorm, which left a substantial[***3] amount of water on Maryland Route 176. As Oaks drove through this water at an excessive rate of speed, he lost control of his car, crossed the center line, and[*28] hit the vehicle in which Connors was riding. Connors, who was married at the time, was severely injured as a result of the collision, sustaining several fractures to her right hand and arm in addition to serious neurological and psychological damage. She was also rendered incapable of caring for her invalid husband in the same manner as before the accident.

n2 The driver of the van, Martha Marris, and her husband also sued Oaks for their injuries resulting from the accident; however, the Marrises' claims are not involved in this appeal.

   On July 5, Oaks was employed by Giant Food, Inc. (Giant) as an Automated Teller Machine (ATM) Sergeant in its Loss Prevention Department, a position he had held since April 17, 1989. His duties in that capacity varied, sometimes requiring him to stay at the corporation's Jessup facility all day, and other times requiring[***4] him to proceed to various Giant stores to stand guard while ATM machines were being serviced. To fulfill this latter task, Giant required Oaks to have a personal vehicle, in good working order, available to use when travel was necessary. Giant did not supply or pay for the vehicle or for its maintenance, fuel, or repair. It also did not specify the type of vehicle to be used or the route to be taken to and from the Jessup facility. n3 

n3 The evidence in the record establishes that Oaks was not entitled to travel expense reimbursement on July 5. Giant's clearly-stated policy on the date of the accident in question reads as follows:
 
"For associates regularly traveling for Giant (an average of two or more days a week) you may report the mileage from your nearest Giant store, all business mileage in between, plus mileage back to the originating nearest store. An assignment to one location for more than two months does not constitute travel; it is a commuting expense, and may not be claimed for mileage reimbursement."
 
As an ATM Sergeant, Oaks traveled regularly between stores for Giant and, therefore, qualified for travel mileage reimbursement from his home store to his initial reporting location, Jessup, for the first two months that he was assigned there; however, because Oaks began reporting to Jessup as an ATM Sergeant on April 17, 1989, his entitlement to reimbursement for his daily commute there ended on June 17, 1989, several weeks before the accident in question. Even assuming that Oaks was entitled to travel reimbursement on July 5, 1989, the case law shows that such an entitlement does not of itself create respondeat superior liability in Giant. See Dhanraj v. Potomac Elec. Power Co., 305 Md. 623, 630, 506 A.2d 224 (1986).

[***5]

   Beginning April 17, Oaks reported to Jessup each day to receive his daily work assignment. At the time of the accident, [*29] he was operating his personal vehicle and was en route from his residence to Jessup. His scheduled hours on July 5 were from 3:00 p.m. to 11:00 p.m. and the accident occurred at approximately 2:42 p.m. Oaks testified that he was not performing any duties for Giant at the time of the accident, his understanding being that his work day began after he punched in at Jessup.

   On April 3, 1990, Respondents Anna and Herbert Connors (collectively, the Connorses) filed a Complaint against Oaks and Giant, alleging that the employee's negligent operation of his motor vehicle caused the accident that injured Anna Connors. Connors sought damages for her individual personal injuries and she and her husband jointly claimed damage to their marital relationship. The case against Giant was based on its alleged [**426] respondeat superior liability for Oaks' negligent driving in the course of his employment.

   A jury trial was held in the Circuit Court for Anne Arundel County. At the close of the Connorses' presentation of evidence, the court (Goudy, J.) granted Giant's Motion for Judgment[***6] pursuant to Rule 2-519, finding that respondeat superior liability did not apply in this case. n4 As to Oaks, at the conclusion of all the evidence, the jury awarded Anna Connors economic damages of $84,200 and noneconomic damages of $350,000; it also awarded the Connorses $130,000 for the noneconomic damage to their marital relationship. Following the verdict, the court reduced the judgment to comply with § 11-108, the cap on noneconomic damages, stating that "the law requires [it] to find the damage to the marital relationship [in this case to be] non-economic and, accordingly, the [Connors] claim must necessarily be reduced by $130,000." To accomplish this end, the court vacated the Connorses' loss of consortium award and reduced it to zero. Judgment was then[*30] entered against Oaks in favor of Anna Connors in the amount of $434,200. n5 

n4 According to Maryland Rule 2-519(b), when a motion for judgment is made after the close of the plaintiffs' case in a jury trial, the court must consider all evidence and inferences in the light most favorable to the party against whom the motion is made.

[***7] 

n5 The Connorses elected this resolution in response to the court's order that their aggregate noneconomic damages award be reduced by $130,000 to comply with § 11-108.

   The Connorses appealed from the judgment in favor of Giant and from the part of the judgment vacating their loss of consortium award. In Connors v. Oaks, 100 Md. App. 525, 642 A.2d 245 (1994), the intermediate appellate court reversed the lower court's judgment for Giant, finding it vicariously liable for Oaks' actions under the theory of respondeat superior, and ordered the reinstatement of the Connorses' loss of consortium award pursuant to its construction of § 11-108, permitting a separate noneconomic damages cap for a consortium claim. We granted certiorari to consider the important issues raised in this case.

   II.

   The doctrine of respondeat superior, in Maryland, allows an employer to be held vicariously liable for the tortious conduct of its employee when that employee was acting within the scope of the employment relationship. Dhanraj v. Potomac Elec. Power Co., 305 Md. 623, 627, 506 A.2d 224 (1986).[***8] See also Embrey v. Holly, 293 Md. 128, 134, 442 A.2d 966 (1982); Restatement (Second) of Agency § 219 (1958). We have held that "'a master is liable for the acts which his servant does with the actual or apparent authority of the master, or which the servant does within the scope of his employment, or which the master ratifies with the knowledge of all the material facts.'" Dhanraj, supra, 305 Md. at 627 (quoting Globe Indemnity Co. v. Victill Corp., 208 Md. 573, 580, 119 A.2d 423 (1956)). Because "the master holds out his servant as competent and fit to be trusted, . . . he in effect warrants his servant's fidelity and good conduct in all matters within the scope of his employment." Globe, supra, 208 Md. at 580. [*31]

    This rule has been somewhat modified with respect to the use of automobiles. In Dhanraj, we stated:
 
"On account of the extensive use of the motor vehicle with its accompanying dangers, the courts have realized that a strict application of the doctrine of respondeat superior in the modern commercial world would result in great injustice. . . . It is now held by the great weight of authority that a master will not be held responsible[***9] for negligent operation of a servant's automobile, even though engaged at the time in furthering the master's business unless the master expressly or impliedly consents to the use of the automobile, and . . . had the right to control the servant in its operation, or else the use of the automobile was of such vital importance in furthering the master's business that his control over it might reasonably [be] inferred."
 
305 Md. at 627-28 (quoting Henkelmann v. Insurance Co., 180 Md. 591, 599, 26 A.2d 418 (1942)). The "right to control" concept is key to a [**427] respondeat superior analysis in the motor vehicle context. The doctrine may only be successfully invoked when an employer has either "'expressly or impliedly, authorized the [servant] to use his personal vehicle in the execution of his duties, and the employee is in fact engaged in such endeavors at the time of the accident.'" Id. at 628 (quoting L.M.T. Steel Products v. Peirson, 47 Md. App. 633, 643, 425 A.2d 242, cert. denied, 290 Md. 717 (1981) (emphasis added)). See also Embrey, supra, 293 Md. at 134 (stating that respondeat superior liability "rests upon the power of control and direction[***10] which the superior has over the subordinate"); A. & P. Co. v. Noppenberger, 171 Md. 378, 390-92, 189 A. 434 (1937); Regal Laundry Co. v. Abell. Co., 163 Md. 525, 531-33, 163 A. 845 (1933); Goldsmith v. Chesebrough, 138 Md. 1, 8, 113 A. 285 (1921); Restatement (Second) of Agency § 219 cmt. a (1958) (stating that "[a] master's liability to third persons appears to be an outgrowth of the idea that within the time of service, the master can exercise control over the physical activities of the servant"). [*32]

   Driving to and from work is generally not considered to be within the scope of a servant's employment because getting to work is the employee's own responsibility and ordinarily does not involve advancing the employer's interests. Dhanraj, supra, 305 Md. at 628. See also Restatement (Second) of Agency § 229 cmt. d, 235 (1958). Accordingly, we have held that "absent special circumstances, an employer will not be vicariously liable for the negligent conduct of his employee occurring while the employee is traveling to or from work." Dhanraj, supra, 305 Md. at 628.

   Giant argues that it should not be liable to the Connorses for Oaks' negligent driving[***11] while he was en route to his usual job site in his personal vehicle, even though it required him to have the vehicle available for use during the work day. It contends that the theory of respondeat superior does not apply in this case because Oaks was not acting within the scope of his employment at the time of the accident. According to Giant, the case law makes clear that employees traveling to or from work in a personal vehicle are acting for their own purposes and, therefore, their employers should not be held liable for their actions during this time.

   It is undisputed that while Giant required Oaks to have a vehicle available for use in the execution of his duties, he was not actually performing any of his designated job responsibilities at the time of the accident. While driving to work, Oaks was not furthering any business purpose of Giant; his job assignments were limited to either fulfilling security-related duties at the Jessup facility or guarding ATM machines at various Giant stores as they were being serviced. He was accomplishing neither of these tasks at the time of the accident. Moreover, Oaks' work day did not even begin until he arrived at Jessup, punched in, [***12] and received his daily work assignment; the accident occurred before the time that Oaks was scheduled to start work on July 5.

   Furthermore, Giant exerted no control over the method or means by which Oaks operated his vehicle. It did not supply[*33] or pay for the vehicle that Oaks used or for its maintenance, fuel, or repair. It also did not specify the type of vehicle to be used or the route to be taken to or from the Jessup facility. Finally, the use of an automobile was not of such vital importance in furthering Giant's business that Giant's control over it, as Oaks commuted to work, can reasonably be inferred.

   The Connorses argue that Oaks was in fact executing his duties for Giant at the time of the accident because he was transporting to the job site a vehicle which Giant required him to have available for use in the course of his employment. The Connorses seek to analogize this situation to that involved in the workers' compensation case of Alitalia v. Tornillo, 329 Md. 40, 617 A.2d 572 (1993), which dealt with the "going and coming" rule, finding compensable injuries to have been sustained by an employee in an accident that occurred while the employee was driving home from[***13] work in a car required for use in his employment. Unlike the instant case, however, the employee in Alitalia, Tornillo, was an "outside sales representative" for an airline. His primary business-related duties [**428] included selling tours and travel packages to travel agencies, visiting existing clients, distributing travel brochures and promotional materials to attract new customers, attending weekly sales meetings, and running occasional errands for his employer, which required him to travel throughout the Maryland-Virginia area on a daily basis. Tornillo admitted to frequently making sales calls on his way to and from his home in Rockville. In addition, after approving his choice of vehicle, Alitalia assisted Tornillo in financing the car, which was to be used to fulfill the conditions of his employment. Finally, Tornillo was reimbursed with a travel allowance for his business mileage. Alitalia, supra, 329 Md. at 42. We believe that these factual differences clearly distinguish Alitalia from the case at hand.
 
III.

   A claim for loss of consortium arises from the loss of society, affection, assistance, and conjugal fellowship suffered by the marital unit as a result [***14]of the physical injury to one[*34] spouse through the tortious conduct of a third party. Deems v. Western Maryland Railway Company, 247 Md. 95, 100, 231 A.2d 514 (1967). See also Klein v. Sears Roebuck, 92 Md. App. 477, 493, 608 A.2d 1276, cert. denied, 328 Md. 447, 614 A.2d 973 (1992) (setting forth the possible injuries that a married person may sustain as a result of a third party's tortious conduct, which include "(1) the physical injury to the spouse who was directly injured by the tortious conduct and (2) the derivative loss of society, affection, assistance, and conjugal fellowship to his or her spouse"). A comprehensive discussion of the consortium claim was set forth by this Court in Deems in which we held that damage to the marital relationship is a compensable injury. We further concluded that a consortium claim must be filed jointly by a couple and tried concurrently with the claim of the physically injured spouse in order to avoid duplication of awards. 247 Md. at 109-11. See also Phipps v. General Motors Corp., 278 Md. 337, 354-56, 363 A.2d 955 (1976); Travelers Indem. Co. v. Cornelsen, 272 Md. 48, 50, 321 A.2d 149 (1974) (stating that our decision[***15] in Deems "created a new substantive right . . . [and] delineated a different procedural approach in actions for loss of consortium. Nevertheless, it gave rise to no new cause of action").

   Maryland's cap on noneconomic damages is codified as § 11-108; it provides that "in any action for damages for personal injury . . ., an award for noneconomic damages may not exceed $350,000." § 11-108(b). It further states: "'Noneconomic damages' means pain, suffering, inconvenience, physical impairment, disfigurement, loss of consortium, or other nonpecuniary injury" and "does not include punitive damages." n6 § 11-108(a). One of the primary purposes in enacting[*35] this statutory limitation was to promote the availability and affordability of liability insurance in Maryland. See Murphy v. Edmonds, 325 Md. 342, 368, 601 A.2d 102 (1992) (stating that § 11-108 was enacted "in response to a legislatively perceived crisis concerning the availability and cost of liability insurance in this State" caused in part by excessive noneconomic damage awards in personal injury cases); Franklin v. Mazda Motor Corp., 704 F. Supp. 1325, 1327 (D. Md 1989).

n6 In 1994, the General Assembly revised § 11-108. The new amendments, one of which raised the statutory limit on noneconomic damages to $500,000, went into effect on October 1, 1994 and thus are not directly applicable in the instant case. ch. 477 of the Acts of 1994. The 1994 revision also clarified that the cap was to apply in wrongful death actions. Finally, it stated that the new cap "shall apply in a personal injury action to each direct victim of tortious conduct and all persons who claim injury by or through that victim." § 11-108(b)(3).

[***16]

   Oaks argues that both the plain meaning of the language of § 11-108 and its legislative history show that the General Assembly intended for a single cap to apply to the individual claim of an injured person and a loss of consortium claim by the marital unit, which is derivative therefrom. He contends that including "loss of consortium" within the § 11-108(a) definition of noneconomic damages evidences this legislative intent. He further asserts that the ruling of the Court of Special Appeals in this case effectively doubles the amount of noneconomic damages recoverable in a personal injury [**429] action with a consortium claim, thereby frustrating the Legislature's purpose in enacting § 11-108. We agree.

   The cardinal rule of statutory interpretation is to ascertain and effectuate the intention of the legislature. Fish Market v. GAA, 337 Md. 1, 8, 650 A.2d 705 (1994). See also Jones v. State, 336 Md. 255, 260, 647 A.2d 1204 (1994); Parrison v. State, 335 Md. 554, 559, 644 A.2d 537 (1994); Rose v. Fox Pool, 335 Md. 351, 358, 643 A.2d 906 (1994). The first step in determining legislative intent is to look at the statutory language and "if the words of the statute, construed[***17] according to their common and everyday meaning, are clear and unambiguous and express a plain meaning, we will give effect to the statute as it is written." Jones, supra, 336 Md. at 261. See also Parrison, supra, 335 Md. at 559; Rose, supra, 335 Md. at 359; Outmezguine v. State, 335 Md. 20, 41, 641 A.2d 870 (1994).
 
There is no indication in the literal language of § 11-108 that the Legislature intended to allow a separate cap for a[*36] consortium claim. In fact, the General Assembly expressly chose to include "loss of consortium" in its definition of what constitutes noneconomic damages in a personal injury action, along with such other intangibles as pain, suffering, inconvenience, and disfigurement. § 11-108(a)(1). The plain meaning of this provision is that damages for loss of consortium should be governed by the same $350,000 limit as the other items enumerated in § 11-108(a)(1). It would be illogical to conclude that a separate cap should apply to loss of consortium damages and not to the damages awarded for the other items listed in § 11-108(a)(1) as the Connorses' argument would suggest.

   Further evidence that a single cap was intended is the[***18] language of § 11-108(b), which clearly states: "In any action for damages for personal injury . . ., an award for noneconomic damages may not exceed $350,000." (emphasis added) The ordinary meaning of this language is that in each personal injury action, which includes the injured individual's underlying claim for damages along with all claims arising therefrom, a single award ("an award") of noneconomic damages should be made and should be subject to the statutory cap.

   Finally, reviewing the statutory scheme within which § 11-108 was enacted, we note that § 11-109(b) states: "As part of the verdict in any action for damages for personal injury . . ., the trier of fact shall itemize the award to reflect the monetary amount intended for: (1) Past medical expenses; (2) Future medical expenses; (3) Past loss of earnings; (4) Future loss of earnings; (5) Noneconomic damages; and (6) Other damages." The fact that the Legislature was so methodical in its requirements for the itemization of damage awards, and yet still lumped all noneconomic damages into one category with no separate delineation for consortium versus non-consortium damages, is additional evidence that it[***19] intended for all noneconomic damages to be subject to a single cap.

   The Connorses argue that the absence of statutory guidance as to the proper allocation of a noneconomic damage award between the injured spouse and the marital unit reveals that[*37] the Legislature intended the imposition of separate caps in this situation. A decision to the contrary, they say, could make a claim for loss of consortium a meaningless procedural exercise and effectively eliminate this type of claim in cases where the injury to the victim spouse is serious enough to warrant a noneconomic damage award of $350,000 or more to that person alone. Since an award for "loss of consortium" presupposes the existence of an intact marital relationship that can be damaged, we believe that couples in this situation should be able to, and responsible for, deciding how to allocate the money they are awarded, which is precisely what occurred in the instant case.

   The Connorses further contend that § 11-108 violates the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution and Article 24 of the Maryland Declaration of Rights and infringes upon their right to a jury trial under Articles[***20] 5, 19, and 23 of the Declaration of Rights. We expressly rejected these constitutional arguments in Murphy v. Edmonds, [**430]325 Md. 342, 601 A.2d 102 (1992), and we reaffirm that decision today. See also Franklin v. Mazda Motor Corp., 704 F. Supp. 1325 (D.Md. 1989).

   Finally, the Connorses assert that, although they must be adjudicated concurrently, a claim for loss of consortium by the marital unit is separate and distinct from any claim made by the injured spouse and, therefore, should have its own cap. We believe that damages to a marital relationship are frequently inextricably intertwined with the harm sustained by the injured spouse. As we held in Deems, "marital interests are in reality . . . interdependent [and] injury to these interests is . . . essentially incapable of separate evaluation as to the husband and wife." 247 Md. at 109. For example, the pain, suffering, and depression that are personal to the injured victim will inevitably affect the relationship with that person's spouse. Whether these injuries are claimed individually, by the marital unit, or by both, however, they constitute noneconomic damages flowing from a single source, the tortious injury to the [***21]victim spouse. [*38]

   Moreover, since half of the damages awarded under a loss of consortium claim belong to the injured spouse, allowing a separate cap for it would circumvent the Legislature's intent to limit noneconomic damages and avoid double recoveries because a married victim would be able to receive up to $525,000 in compensation for such damages, instead of the $350,000 allowed by the statute. Accordingly, we hold that a loss of consortium claim is derivative of the injured spouse's claim for personal injury and, therefore, a single cap for noneconomic damages applies to the whole action.
 
AS TO APPELLANT GIANT FOOD, INC., JUDGMENT OF THE COURT OF SPECIAL APPEALS VACATED; CASE REMANDED TO THAT COURT WITH DIRECTIONS TO AFFIRM THE JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY IN FAVOR OF GIANT FOOD, INC.
 
AS TO APPELLANT WILLIE JAMES OAKS, THAT PART OF THE JUDGMENT OF THE COURT OF SPECIAL APPEALS AWARDING LOSS OF CONSORTIUM DAMAGES TO APPELLEES VACATED; CASE REMANDED TO THAT COURT WITH DIRECTIONS TO AFFIRM THAT PART OF THE JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY DELETING IN ITS ENTIRETY THE AWARD OF LOSS OF CONSORTIUM DAMAGES TO APPELLEES.

   COSTS [***22]  IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID BY APPELLEES. 

SUSAN PALMER GREENTREE v. NEAL FERTITTA, et al. 
No. 8, September Term, 1994
 
COURT OF APPEALS OF MARYLAND
 
338 Md. 621; 659 A.2d 1325; 1995 Md. LEXIS 83
 
   June  23, 1995, Filed

   PRIOR HISTORY: Certiorari to the Court of Special Appeals (Circuit Court for  Anne Arundel  County). Bruce C. Williams, JUDGE.

DISPOSITION: [***1] JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED. CASE REMANDED TO THE COURT OF SPECIAL APPEALS WITH DIRECTIONS TO REVERSE THE JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AND TO REMAND THE CASE TO THAT COURT FOR PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION. RESPONDENTS TO PAY COSTS.

CORE TERMS:  decedent, personal representative, insurer, statute of limitations, limitations period, expiration, instituted, notice, insurance coverage, three-year, administrator, liability insurance policy, qualification, substituting, executor, rules governing, appointment, tort-feasor, occurrence, designated, died, dead man, insured, timeliness, claimant, substitution, recoverable, tortfeasor, appointed, nullity

COUNSEL: ARGUED BY John R. Greiber, Jr. of Annapolis, MD (Carol L. James of Columbia, MD and John W. Wright of Annapolis, MD all on brief), FOR PETITIONER.
 
ARGUED BY Joseph M. Mott (Miles & Stockbridge, on brief) of Rockville, MD, FOR RESPONDENT.

JUDGES: ARGUED BEFORE Murphy, C.J., Eldridge, Rodowsky, Chasanow, Karwacki, Bell, Raker JJ. Rodowsky and Karwacki, JJ., dissent.

OPINIONBY: ELDRIDGE

OPINION: [*623]
 
[**1326] Opinion by Eldridge, J.

   Rodowsky and Karwacki, JJ., dissent.
On June 29, 1989, Susan Greentree was involved in an automobile accident with Neal Fertitta. According to the complaint which Ms. Greentree later filed, Mr. Fertitta's vehicle crossed the center line of the highway and hit Ms. Greentree's vehicle head on. Ms. Greentree was seriously injured in the accident. She underwent a series of surgical procedures and extensive rehabilitation, and required medical care until June, 1992.
 
   On June 30, 1989, the day after the accident, Ms. Greentree's attorneys informed Mr. Fertitta's insurer of her potential claim. Thereafter, they informed the insurer from time to time of the amount of Ms. Greentree's medical bills and of her prognosis for recovery. The last of[***2] these communications was acknowledged by the insurer approximately three weeks before the expiration of the three-year general statute of limitations applicable to Ms. Greentree's cause of action. In addition, Ms. Greentree's attorneys sought to reach a settlement agreement with Mr. Fertitta's insurer. When their attempts to settle ultimately proved unsuccessful, Ms. Greentree's attorneys filed suit in the Circuit Court for Anne Arundel County against Mr. Fertitta on June 23, 1992, six days before the expiration of the three-year statute of limitations. Ms. Greentree's complaint named Neal Fertitta as the sole defendant.

   When service was attempted upon Mr. Fertitta, Ms. Greentree's attorneys learned, for the first time, that Mr. Fertitta had died on March 6, 1991. The insurer had never revealed that fact to Ms. Greentree or to her attorneys. n1 

n1 There is a factual dispute with respect to whether or not the insurer had prior knowledge of Mr. Fertitta's death.

   After learning of Mr. Fertitta's death, Ms. Greentree's[***3] counsel arranged for an estate to be opened for Mr. Fertitta on October 15, 1992. On October 21, 1992, n2 the original [*624] complaint was served upon the personal representative of the estate and a copy forwarded to the insurer. 

n2 There a dispute, which is not pertinent to the issues before us, as to whether service occurred on the 20th or 21st of October.

   On November 20, 1992, attorneys employed by the insurer, representing the estate, entered their appearance and filed a motion to dismiss pursuant to Maryland Rule 2-322. The estate argued that the claim was time-barred by Maryland Code (1974, 1991 Repl. Vol.), § 8-104 of the Estates and Trusts Article.

   On January 14, 1993, Ms. Greentree amended her complaint to change the name of the defendant from "Neal Fertitta" to "the Estate of Neal Fertitta, Dorrie Moon, personal representative." After a hearing, the trial court granted the estate's motion to dismiss the amended complaint on the ground that it was untimely filed under § 8-103(a) of the Estates and Trusts[***4] Article, as it was not filed within nine months of Mr. Fertitta's death. n3 

 n3 Mr. Fertitta died on March 6, 1991; therefore, according to the trial court, the complaint should have been filed by December 6, 1991. Section 8-103(a)(1) of the Estates and Trusts Article was amended in 1992. This amendment changed the limitations period for filing claims against an estate from nine months to six months, but the amendment was effective only as to estates of persons who died on or after October 1, 1992.

   Ms. Greentree appealed to the Court of Special Appeals. In an unreported opinion, the intermediate appellate court held that the [**1327] circuit court's application of the nine-month limitation period set forth in § 8-103(a)(1) of the Estates and Trusts Article was erroneous. The appellate court held that because the decedent was covered by liability insurance at the time of the accident, a three-year limitations period, running from the date of the accident, was applicable under § 8-104(e) of the Estates and Trusts Article. [***5]n4 Nevertheless, the Court of Special Appeals affirmed on an alternate ground which had been argued to the trial court. Relying on Burket v. Aldridge, 241 Md. 423, 216 A.2d 910 (1966), the intermediate appellate court reasoned that, under the circumstances of the present case, [*625] the amendment substituting the estate for Fertitta did not relate back to the filing of the original complaint. n5 

n4 The parties agree in this Court that this is the applicable limitations period.

n5 Under our liberal rule governing the amendment of pleadings, amendments should "be freely allowed when justice so permits." Maryland Rule 2-341(c). But, as the Court observed in Crowe v. Houseworth, 272 Md. 481, 485-486, 325 A.2d 592, 595 (1974), it may at times be difficult to determine the consequences of an amended pleading:

   "A frequently encountered problem, which is the result of the more liberal use of amendments, is whether a new action has commenced, an action which may be barred by limitations, or whether the doctrine of relation back is applicable: that is, whether the assertion of the original complaint tolled the running of the statute. The modern view seems to be that so long as the operative factual situation remains essentially the same, no new cause of action is stated by a declaration framed on a new theory or invoking different legal principles. As a consequence, the doctrine of relation back is applied, and the intervention of a plea of limitations prevented. . . ."
 
An amended complaint changing the name of a defendant in the action, filed after the statute of limitations has run, may either seek to substitute a new party for the defendant originally named, or may correct a misnomer of the originally named defendant. The effect of an amended complaint ordinarily depends upon whether the "correct" defendant was intended to be sued originally and whether the "correct" defendant would be unfairly prejudiced by allowing the amendment to relate back to the time of the filing of the original complaint. See, e.g., McSwain v. Tri-State Transportation, 301 Md. 363, 369-371, 483 A.2d 43, 46-47 (1984); W. U. Tel. Co. v. State, Use Nelson, 82 Md. 293, 306-307, 33 A. 763, 764 (1896).

[***6]

   In Burket, this Court held that an amendment substituting the personal representative of a decedent in a tort action, mistakenly instituted against the decedent after his death, did not relate back to the time of the filing of the original action so as to prevent the applicable statute of limitations from barring the action. Following its earlier decision in Hunt v. Tague, 205 Md. 369, 109 A.2d 80 (1954), this Court stated that "an action brought against a dead man is a nullity," so that there was nothing to which the later complaint against the estate could relate back. Burket v. Aldridge, supra, 241 Md. at 430, 216 A.2d at 913. According to the estate in this appeal, Burket controls the present case and requires us to hold that Ms. Greentree's complaint against Mr. Fertitta's estate was untimely. The estate contends that Ms. Greentree's claim against Mr. Fertitta's [*626] estate cannot, under Burket, relate back to her timely complaint against Mr. Fertitta. Thus, the estate argues, Ms. Greentree's complaint is barred by the statute of limitations. In response, Ms. Greentree contends, inter alia, that the estate may not successfully rely upon the statute of limitations. [***7] Ms. Greentree points out that "any judgment entered in this case is recoverable from, and limited to, Mr. Fertitta's insurance coverage," pursuant to Code (1974, 1991 Repl. Vol., 1994 Cum. Supp.), § 8-104(e) of the Estates and Trusts Article. In this regard, Ms. Greentree states that her attorneys had negotiated with Mr. Fertitta's insurer for almost three years, from the day after the accident until approximately two weeks before suit was filed. Under these circumstances, Ms. Greentree contends, since "it would be unjust to grant a windfall to the insurer for failing to disclose Mr. Fertitta's death to Ms. Greentree's counsel," the estate should not be permitted to rely on the limitations defense. (Ms. Greentree's brief at 8).

   We agree that § 8-104(e) of the Estates and Trusts Article is controlling in this case. In our view, however, the effect of § 8-104(e) is to create an exception to the Burket principle under circumstances like those in this case, for claims against decedents' estates [**1328] which are covered by insurance. Section § 8-104(e) therefore makes timely Ms. Greentree's action against Mr. Fertitta's estate.

   The Estates and Trusts Article sets forth both procedural[***8] and substantive rules governing the administration of estates. Sections 8-101 through 8-115 of the Article establish procedures whereby claims may be made against decedents' estates. Section 8-104(e) of the Estates and Trusts Article sets forth separate procedures for those claims made against decedents' estate which are covered by insurance. Section 8-104(e) provides in part as follows:
 
"Where insurance exists. -- (1) If the decedent was covered by a liability insurance policy which at the time the action is instituted provides insurance coverage for the occurrence, then, notwithstanding the other provisions of this section, an action against the estate may be instituted [*627] after the expiration of the time designated in this section, but within the period of limitations generally applicable to such actions. 

   (2) . . . If a verdict is rendered against the estate:

   (i) The judgment is not limited to the amount of insurance coverage for the occurrence; and

   (ii) The amount of the judgment that is recoverable from the estate is limited to the amount of the decedent's liability insurance policy."
 
Thus, to the extent that a successful claim will[***9] be satisfied by the proceeds of an insurance policy, rather than by the assets of the estate, § 8-104(e) makes inapplicable certain procedural requirements which would generally apply to limit claims against estates.

   According to the estate's theory in this appeal, the sole effect of § 8-104(e) upon the timeliness of claims against estates is to create an exception, for claims covered by insurance, from the special statute of limitations set forth in § 8-103(a) of the Estates and Trusts Article. Section 8-103(a) provides that a claim against a decedent's estate must ordinarily be filed within six months of the decedent's death or within two months of the mailing of notice by the personal representative, whichever is earlier. The estate contends that § 8-104(e) makes inapplicable to claims covered by insurance the limitations period set forth in § 8-103(a). Nevertheless, the estate argues that, despite § 8-104(e), all other rules governing the limitation of claims against estates, including common law rules, apply equally to claims covered by insurance and to claims seeking recovery from the assets of the estate. The estate reads § 8-104(e) too narrowly.

   While § 8-104(e)(1) [***10] does indeed state that a claim covered by insurance "may be instituted after the expiration of the time designated in this section," the section itself, § 8-104, contains no time limitation. Furthermore, § 8-104(e)(1) provides more broadly that "notwithstanding the other provisions of this section, an action against the estate may be instituted after the expiration of the time designated in this section, but [*628] within the period of limitations generally applicable to such actions." Since subsections (a) to (d) of § 8-104 describe the manner and form in which claims against an estate must be presented, the statement in § 8-104(e) that it applies "notwithstanding the other provisions of this section" cannot refer to the other subsections of § 8-104, which have nothing to do with the timeliness of claims. It is unclear from the statutory language exactly which "other provisions" of law the General Assembly intended to make inapplicable to claims covered by insurance. In order to ascertain the scope of § 8-104(e), we must therefore look to the purposes of that provision. n6 

n6 Moreover, we must interpret § 8-401(e) in light of the overall purposes of the Estates and Trusts Article. See Bertonazzi v. Hillman,  241 Md. 361, 216 A.2d 723 (1966); Chandlee v. Shockley, 219 Md. 493, 150 A.2d 438 (1959). The General Assembly has set forth in § 1-105 of the Estates and Trusts Article the general purpose of the legislation:
 
"The purpose of the estates of decedents law is to simplify the administration of estates, to reduce the expenses of administration, to clarify the law governing estates of decedents, and to eliminate any provisions of prior law which are archaic, often meaningless under modern procedure and no longer useful. This article shall be liberally construed and applied to promote its underlying purpose."

[***11]

   [**1329] Section 8-104(e) governs the limitations of claims against estates where "the decedent was covered by a liability insurance policy which at the time the action is instituted provides insurance coverage for the occurrence. . . ." Thus, § 8-104(e) distinguishes claims which are to be paid from the assets of the estates from claims which are to be paid by the proceeds of a policy of liability insurance. Furthermore, § 8-104(e)(2) limits a claimant's recovery under that section to the amount of the decedent's liability insurance policy, regardless of the amount of the judgment entered against the estate. An action brought under § 8-104(e), therefore, ultimately seeks compensation only from the decedent's insurer and not from the decedent's estate.

   In deciding to what extent the Legislature intended the limitations period set forth in § 8-104(e) to supersede other rules of timeliness, it is significant that the procedural rules governing the limitation of claims which will be satisfied from [*629] the assets of a decedent's estate are not pertinent to claims which will be covered by insurance. The Estates and Trusts Article sets forth uniform procedures for opening estates, taking stock [***12]of the estates' assets, handling claims from estate creditors, and distributing the remaining assets according to law. See Code (1974, 1991 Repl. Vol., 1994 Cum. Supp.), Titles 5, 7, 8 and 10 of the Estates and Trusts Article. The Estates and Trusts Article includes numerous provisions designed to promote speed and efficiency in estate administration. Thus, the Legislature established short time periods within which claimants could file claims against an estate, to be paid from the estate's assets. See  § 8-103(a) (claims against an estate must ordinarily be filed within six months of the decedent's death). Moreover, a personal representative "is under a general duty to settle and distribute the estate of the decedent . . . as expeditiously . . . as is reasonable under the circumstances." § 7-101. In addition, the Article fixes a limited time period within which a personal representative is required to distribute the estate assets. §§ 7-101, 7-305.

   This Court has recognized that "the six-month statute of limitations in suits against executors or administrators has the . . . purpose of requiring claimants seeking damages resulting from the negligence of the decedent to make[***13] claim by suit within six months so that the personal representative of the decedent can make the prompt settlement of the estate contemplated by the law. . . ." Bertonazzi v. Hillman, 241 Md. 361, 367, 216 A.2d 723, 726 (1966). See also Yingling v. Smith, 259 Md. 260, 265, 269 A.2d 612, 614 (1970); MacBride v. Gulbro, 247 Md. 727, 730, 234 A.2d 586, 588 (1967); Burket v. Aldridge, supra 241 Md. at 428-429, 216 A.2d at 912. Where the claim against the estate is covered by insurance, however, considerations relating to the prompt distribution of estate assets are not as pertinent. In such situations the claimant ultimately seeks recovery, not from the estate to be distributed, but from the insurance company which assumed the risk of insuring the decedent. Consequently, late claims will not interfere with the personal representative's statutory obligation to settle the estate expeditiously.

   [*630] We must interpret § 8-104(e) in light of the fact that the procedural rules which favor early finality in the distribution of estates were intended to be relaxed with regard to claims covered by insurance. Section 8-104(e)(1) clearly states that, to the extent that a claim against[***14] an estate is to be satisfied by the proceeds of insurance, it may be filed "within the period of limitations generally applicable to such action." In order to give effect to this statutory language, and to the substantial difference between those claims covered by insurance and those claims directed against the assets of the estate, the statement in § 8-104(e) that it governs claims covered by insurance "notwithstanding the other provisions of this section" must refer generally to the rules of timeliness contained in sections 8-101, 8-102 and 8-103 of the Estates and Trusts Article, and to any inconsistent common law rules incorporated therein. Consequently, when a claim against a decedent's estate is covered by a policy of insurance, § 8-104(e) provides that the ordinary statute of limitations applies to the claim, notwithstanding rules relating to the filing of claims against decedents' estates which might otherwise make the plaintiff's complaint untimely. Under § 8-104(e), [**1330]therefore, a claim made within the limitations period generally applicable to the action is effective against the estate, where insurance coverage is available, to the extent that it would have been effective [***15]against the decedent, had he or she survived. In the present case, § 8-104(e) makes inapplicable, the rule of Burket v. Aldridge, supra, 241 Md. 423, 216 A.2d 910, which prevents a late claim against a decedent's estate from relating back to a complaint filed against the decedent within the period of limitations, but after the time of death.

   By making the usual statute of limitations applicable to claims covered by insurance where the insured dies before suit is filed, § 8-104(e) fully implements the contract of insurance between the insurer and the insured. There is no reason to permit an insurance company to receive premiums for providing coverage for a particular risk, but to avoid paying under the policy because the unforeseen death of its insured allows it to take advantage of procedural rules governing the administration [*631] of estates. On the contrary, since the insurer would avoid liability under the policy at the expense of the person injured by the decedent, applying procedural rules governing estate administration to defeat a claim against an insurer undermines Maryland's strong public policy of making compensation available to those injured in motor vehicle and other[***16] accidents. See Van Horn v. Atlantic Mutual,  334 Md. 669, 680, 641 A.2d 195, 200 (1994).
 
In addition, claims covered by insurance generally differ from claims against the assets of an estate with respect to the provision of notice. The personal representative of a decedent's estate may be entirely unaware of circumstances which might give rise to claims against the estate. By contrast, a contract of insurance ordinarily provides that the insurer must receive early notice of a potential claim in order to trigger its obligations under the policy. Thus, an insurer typically has notice of a claim against an insured long before suit is filed. Indeed, the filing of suit is often, as in the present case, the consequence of protracted, but ultimately unsuccessful, settlement negotiations. 

   In Burket v. Aldridge, supra, 241 Md. at 428, 216 A.2d at 912, this Court quoted Justice Jackson's description of the purposes of statutes of limitation from Order of Railroad Telegraphers v. Railway Express Agency, Inc., 321 U.S. 342, 348-349, 64 S. Ct. 582, 586, 88 L. Ed. 788, 792 (1944), stating as follows: 

   "'Statutes of limitation, like the equitable doctrine of laches, in their conclusive[***17] effects are designed to promote justice by preventing surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared. The theory is that even if one has a just claim it is unjust not to put the adversary on notice to defend within the period of limitation and that the right to be free of stale claims in time comes to prevail over the right to prosecute them.'"
 
[*632] As § 8-104(e) recognizes, considerations with respect to notice which are pertinent to uninsured claims against decedents' estates do not apply where the claim is covered by a policy of insurance.
 
In the present case, Ms. Greentree filed suit against Mr. Fertitta within the three-year statute of limitations applicable to her action. Under § 8-104(e), therefore, her action was timely, notwithstanding the special time limitations upon the administration of estates established by the Estates and Trusts Article and by the Burket principle. 
 
JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED. CASE REMANDED TO THE COURT OF SPECIAL APPEALS WITH DIRECTIONS TO REVERSE THE JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL[***18] COUNTY AND TO REMAND THE CASE TO THAT COURT FOR PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION. RESPONDENTS TO PAY COSTS. 

DISSENTBY: KARWACKI

DISSENT:  
Dissenting opinion by Karwacki, J., in which Rodowsky, J., concurs.
 
I would affirm the judgment of the Court of Special Appeals in this case. The majority, in an apparent attempt to avoid a harsh result for the petitioner in this case, has arrived at its decision by judicially amending §§ 8-101 through 8-104 of the Estates and [**1331] Trusts Article which set forth the time limitations for presentation of various claims against the estate of a decedent. 

   I

   In Burket v. Aldridge, 241 Md. 423, 216 A.2d 910 (1966), we held that an amendment substituting the personal representative of a decedent in a tort action, mistakenly instituted against the decedent after his death, did not relate back to the time of the filing of the original action so as to prevent the applicable statute of limitations from barring the action. We granted certiorari in this case to reexamine our decision in [*633] Burket in light of certain changes in the pertinent Maryland statutes.

   In Burket, supra, this Court provided the history of the right to maintain [***19]an action for personal injury where the tortfeasor has died:

   "Until 1929, actions for personal injuries abated on the death of the tort-feasor. In 1929, the legislature provided that, where the tort-feasor died before suit, an action could be brought against his personal representatives within six months of the tort-feasor's death.[ n1 ] In 1949, the six months period of limitation on actions against the personal representative was changed to begin on the representative's qualification instead of on the death of the tort-feasor.[ n2 ] In 1953, in making certain amendments not here applicable, the legislature stated in the preamble to the amendatory act that the 1949 law had amended the Section in order to extend the time in which certain suits may be brought against an executor or administrator where there is a delay in the appointment or qualification of the executor or administrator." n3 

n1 Ch. 570 of the Acts of 1929, codified as Md. Code (1924, 1929 Cum. Supp.), Art. 93, § 106.

n2 Ch. 468 of the Acts of 1949, amending Md. Code (1939, 1947 Cum. Supp.), Art. 93, § 109. This amended section was not published until it appeared as Md. Code (1951), Art. 93, § 111.

[***20] 

n3 Ch. 689 of the Acts of 1953, codified as Md. Code (1951, 1957 Cum. Supp.), Art. 93, § 111.

 
Burket, 241 Md. at 427, 216 A.2d at 912. n4 

n4 At the time Burket was decided, the law governing this type of suit was codified as Md. Code (1957, 1964 Repl. Vol., 1965 Cum. Supp.), Art. 93, § 112.

   In Burket, the facts were practically identical to those in this case. The issue presented to this Court was whether Burket's suit was time-barred by the three-year limitation applicable to most tort actions imposed by Maryland Code (1957, 1964 Repl. Vol.), Article 57, § 1, or whether it was timely [*634] under Md. Code (1957, 1964 Repl. Vol.), Article 93, § 112, which provided that a suit against an executor must be commenced within six months of his qualification.

   Judge Oppenheimer, speaking for this Court, explained that the Court affirmed the trial court's judgment because both the six-month limitation on suits against[***21] an executor and the original three-year limitation on the cause of action applied -- nothing in the former tolled the running of the latter. Burket, 241 Md. at 427, 216 A.2d at 911. The opinion concludes with the holding of this Court:

   "Under the Maryland law, whether suit is brought against the tort-feasor during his life-time, or against his personal representative after his death, it must be filed both within three years from the date of the injuries and within six months from the qualification of the personal representative.

   "In this case, the action filed by Burket against Smith, a few days before the expiration of the three year period from the date of the injuries, had no legal effect. Smith was dead, and an action brought against a dead man is a nullity. Hunt v. Tague, 205 Md. 369, 378-79, 109 A.2d 80 (1954); Chandler v. Dunlop, 311 Mass. 1, 39 N.E.2d 969 (1942). Smith's Administrator was appointed after the three year period had run, and, while the Administrator was thereafter substituted as a party defendant, less than two months after his appointment, the substitution was subsequent to the expiration of the three year period.

    * * *

   "As Judge [Robert E. [***22] Clapp, Jr., the trial judge] held in his opinion, where an action, as here, is brought against a dead [**1332] man, the substitution of his personal representative after the expiration of the period of the Statute of Limitations does not relate back to the time of the filing of the original suit so as to prevent Statute from being a bar to the litigation. Chandle[r] v. Dunlop, supra, cited by the Judge, is on all fours with this holding."
[*635]  
Burket, 241 Md. at 430-31, 216 A.2d at 913-14. Under our reasoning in Burket, Ms. Greentree's original suit, brought against a dead man, was a nullity, and, therefore, there was nothing to which the amendment substituting the estate, as a party defendant, could relate back.

   II

   Md. Code (1957, 1964 Repl. Vol.), Article 93, § 112, as construed in Burket, has since been amended in certain particulars, and on the dates material to the issues presented in the case sub judice, was codified as §§ 8-101, 8-103 and 8-104 of the Estates and Trusts Article. A most significant change appears in what is now § 8-104(e) n5 which provides:

n5 Other changes, not relevant in this matter, have also been made. In 1969, Ch. 3 of the Acts of 1969 recodified and reorganized § 112 based on the recommendations of the Governor's Commission to Review and Revise the Testamentary Law of Maryland (the Henderson Commission). See infra note 9. The law was not amended in substance, but was thereafter codified as Article 93, §§ 8-101, 8-103, and 8-104. Then in 1974, Ch. 11 of the Acts of 1974 enacted the Estates and Trusts Article including §§ 8-101, 8-103, and 8-104 of old Article 93 which were similarly designated in the new Article. More changes have been made after the enactment of the Estates and Trusts Article. See Ch. 464 of the Acts of 1977 (minor change in § 8-104(e)); Ch. 418 of the Acts of 1981 (rewriting § 8-104(e)); Ch. 496 of the Acts of 1989 (amending the limitations period in §§ 8-102(b) and 8-103(a) and rewriting § 8-104(c) with accompanying amendment to § 8-101(a)); Ch. 671 of the Acts of 1989 (reorganizing and rewriting § 8-104(e)); Ch. 55 of the Acts of 1991 (substituting the Maryland Automobile Insurance Fund for the Unsatisfied Claim and Judgment Fund of the State in § 8-104(e)); and Ch. 226 of the Acts of 1992 (changing the limitations period in §§ 8-102(b) and 8-103(a)(1) from nine months to six months).

[***23]
 
"Where insurance exists. - (1) If the decedent was covered by a liability insurance policy which at the time the action is instituted provides insurance coverage for the occurrence, then, notwithstanding the other provisions of this section, an action against the estate may be instituted after the expiration of the time designated in this section, but within the period of limitations generally applicable to such actions.

   (2) The existence of insurance coverage is not admissible at the trial of the case and if a verdict is rendered against the estate:

   [*636] (i) The judgment is not limited to the amount of insurance coverage for the occurrence; and
 
(ii) The amount of the judgment that is recoverable from the estate is limited to the amount of the decedent's liability insurance policy."
 
These provisions created an exception, where insurance coverage exists, from the usual requirement that suits to enforce a claim against a decedent must be filed within the time limit for filing claims with the personal representative or the register. These provisions were first enacted by Ch. 642 of the Acts of 1966. This legislation was approved, and took effect, after Burket was decided [***24]by this Court.

   The majority opines "that § 8-104(e) of the Estates and Trusts Article is controlling in this case[,]" but it then proceeds to essentially ignore the plain language of that subsection that requires that suits brought under § 8-104(e) be brought "within the period of limitations generally applicable to such actions[.]" The majority reasons that the provisions of § 8-104(e) make the insurer the only real party in interest, and since Fertitta's insurer had notice of the claim, by way of settlement negotiations with Greentree, even the general three-year statute of limitations is inapplicable in this case. We have said on numerous occasions that we should not judicially create a new exception to a statute of limitations, in the name of determining legislative intent, where the Legislature has not provided such an exception. See, e.g., Garay v. Overholtzer, 332 Md. 339, 359, 631 A.2d 429, 439 (1993) and cases cited therein. Here, the majority's opinion will have the effect of creating an exception to a statute of limitations, if a defendant was aware, at any [**1333] time during the limitations period, of a potential claim against him.
 
III

   Even if[***25] Ms. Greentree's suit was able to escape the limitations bar, it is still procedurally barred. Section 8-101(a) of the Estates and Trusts Article provides:
 
[*637] "Except as provided in § 8-104,[ n6 ] a proceeding to enforce a claim against an estate of a decedent may not be revived or commenced before the appointment of a personal representative." n7 

n6 The § 8-104 exception, added by Chapter 496 of the Acts of 1989, refers to the § 8-104(c) provision for filing a claim with the register prior to appointment of the personal representative which was enacted by the same legislation. This exception is not applicable in this case because the petitioner did not attempt to file her claim in such a manner.

n7 This prohibition was derived from the Uniform Probate Code. See Second Report of the Governor's Commission to Review and Revise the Testamentary Law of Maryland at 121 (1968), Comment to proposed § 8-101.

 
Therefore, unless, and until, a personal representative is appointed and qualified, there[***26] is no party in existence capable of being sued. n8 See Cornett v. Sandbower, 235 Md. 339, 343, 201 A.2d 678, 680 (1964) (citing Behnke v. Geib, 169 F. Supp. 647 (D. Md. 1959)); Harlow v. Schrott, 16 Md. App. 31, 39, 294 A.2d 349, 354, aff'd sub nom. Blocher v. Harlow, 268 Md. 571, 303 A.2d 395 (1972). In constructing § 8-101, the Henderson Commission n9 simply codified then existing case law. Cases preceding the enactment of this section include, chronologically, Hunt v. Tague, supra (plaintiff could not amend complaint to substitute tortfeasor's personal representative as defendant in tortfeasor's place); Chandlee v. Shockley, 219 Md. 493, 150 A.2d [*638] 438 (1959) (personal representative does not take the place of the decedent but is made amenable, in his representative capacity, to service of process as an original party); Behnke v. Geib, supra (plaintiff cannot, by use of fictitious name in complaint, make personal representative, not in existence in that capacity at time of complaint, amenable to suit); Cornett v. Sandblower, supra (the appointment and qualification of the administrator brings into existence party capable of being sued); [***27] Burket, supra (substitution of personal administrator after expiration of limitations period does not relate back to original filing to prevent limitations bar); n10 Moul v. Pace, 261 F. Supp. 616 (D. Md. 1966) (applying Burket); and Cromwell v. Ripley, 11 Md. App. 173, 273 A.2d 218 (1971) (applying Burket). 

 n8 The existence of a party capable of being sued was within the control of the petitioner. A "Will of No Estate" was filed for Mr. Fertitta with the Register of Wills for Anne Arundel County on March 15, 1991, and was a matter of public record. The petitioner was entitled to seek letters of administration under Md. Code (1974, 1991 Repl. Vol.), § 5-104 of the Estates and Trusts Article. She ultimately did so, but four months after the statute of limitations had expired.

n9 The Henderson Commission conducted a four-year study of the probate and testamentary laws of Maryland and proposed comprehensive changes which were enacted by Ch. 3 of the Acts of 1969. See Shale D. Stiller & Roger D. Redden, Statutory Reform in the Administration of Estates of Maryland Decedents, Minors and Incompetents, 29 Md. L. Rev. 85 (1969). 

[***28] 

n10 The Henderson Commission expressly recognized the holding in Burket in its comments to proposed § 8-103(a). See Second Report of the Governor's Commission to Review and Revise the Testamentary Law of Maryland at 123 (1968), Comment to proposed § 8-103(a).

   Furthermore, since 1929, n11 whether the limitations period ran from the date of the decedent's death or the date of the personal representative's qualification, suit was required to be commenced within a certain time period n12 after that date. See, e.g., Md. Code (1951) Art. 93, § 111. Any suit commenced prior to that measuring date, therefore, would not be proper under § 8-103(a) or its predecessors. 

n11 See supra note 1 and accompanying text.

n12 This period has been amended over the years but had always been either six or nine months. Then Ch. 496 of the Acts of 1989 amended § 8-103(a) to the require commencement within the earlier of nine months after the decedent's death or two months after notice is given by the representative. The nine months in § 8-103(a)(1) was later changed to six months by Ch. 226 of the Acts of 1992. See supra note 5.

[***29]

    [**1334] Finally, § 8-104(e) and its predecessors do not abrogate the requirement of § 8-101(a) as suggested by the majority. As noted in part II supra, the legislation creating the insurance exception was enacted three years prior to the legislation creating § 8-101. If the Legislature had intended to create an exception to the § 8-101(a) requirement, for suits filed [*639] under § 8-104(e) or its predecessors, it could have done so when it enacted § 8-101 or in the decades following that enactment. It did not. Clearly the Legislature knows how to create exceptions to § 8-101(a), as it has done so in the past. n13 

n13 See supra note 6.

   At the commencement of Ms. Greentree's suit, no personal representative for the estate had been appointed; therefore, the suit, even if it named the estate as defendant at that time, would have been improper, as there was no one in existence who was capable of being sued. The subsequent amendment, therefore, cannot relate back to the original complaint, because the original[***30] complaint had no legal effect. While such a holding might cause a harsh result for the petitioner, if changes in this area are appropriate, it is within the province of the General Assembly, not this Court, to make them.

   Judge Rodowsky has authorized me to state that he concurs with the views expressed herein. 

ABRAHAM ARAH WARSAME v. STATE OF MARYLAND 
No. 75, SEPTEMBER TERM, 1994
 
COURT OF APPEALS OF MARYLAND
 
338 Md. 513; 659 A.2d 1271; 1995 Md. LEXIS 77
 
   June  19, 1995, Filed

   PRIOR HISTORY: [***1] Appeal from the Circuit Court for  Anne Arundel  County pursuant to certiorari to the Court of Special Appeals. Raymond G. Thieme, Jr., JUDGE.

DISPOSITION:  
JUDGMENT AFFIRMED, WITH COSTS.

CORE TERMS:  update, cathine, republish, khat, notice, republished, regulation, federal law, republication, updated, plant, phendimetrazine, mandatory, presumed, updating, norpseudophedrine, inclusion, analyzed, controlled substance, statutory scheme, directive, annual basis, proscribed, annually, failure to object, convicted, preceding year, designated, publish, chemist

COUNSEL: ARGUED BY William Lyle Poe, Jr. of Columbia, MD, FOR APPELLANT.
 
ARGUED BY Annabelle L. Lisic, Assistant Attorney General, (J. Joseph Curran, Jr., Attorney General, both on brief) both of Baltimore, MD, FOR APPELLEE.

JUDGES: ARGUED BEFORE Murphy, C.J.; Eldridge, Rodowsky, Chasanow, Karwacki, Bell, and Raker, JJ.

OPINIONBY: BELL

OPINION: [*515]
 
[**1271] OPINION BY Bell, J.
 
FILED: June 19, 1995
 
The issue this appeal presents is whether a substance controlled in Maryland by virtue of Maryland Code (1957, 1992 Repl. Vol., 1994 [**1272] Cum. Supp.), Art. 27, § 278(c) n1, remains controlled despite the fact that the substance has never been listed in § 279, the Maryland schedule of controlled dangerous substances. The[***2] Circuit Court for Anne Arundel County found that it did. Accordingly, the court found Abraham Arah Warsame, the appellant, guilty of possession of Cathine, n2 a schedule IV non narcotic controlled dangerous substance, with intent to distribute, suspended a term of imprisonment, and placed him on a period of probation. After the appellant had noted a timely appeal to the Court of Special Appeals, but before that court had considered it, we issued a writ of certiorari on our own motion.

n1 Maryland Code (1957, 1992 Repl. Vol., 1994 Cum. Supp.), Art. 27, § 278(c) provides:
 
(c) New substances controlled under federal law. - Any new substance which is designated as controlled under federal law shall be similarly controlled under this subheading unless the Department objects to such inclusion or scheduling. In such case the Department shall cause to be published and made public the reasons for such objection and shall afford all interested parties an opportunity to be heard. At the conclusion of such hearing, the Department shall publish and make public its decision, which shall be final. An appeal from a designation made pursuant to this section shall not stay the effect of such designation.
 
Unless otherwise indicated, future statutory references are to Article 27.

[***3] 

n2 The State abandoned its reliance on Cathinone, an ingredient in the Khat plant, as a basis for conviction, inasmuch as that substance was controlled after the appellant had been charged. In any event, the laboratory analysis was positive for Cathine.

[*516]

   I A.

   The facts, about which there are no disputes, are simple and straightforward. The appellant was on a flight from London, England to Baltimore. Upon deplaning and arriving at customs, the appellant's luggage was searched, with his consent. Discovered in his luggage were 101 bundles, or 47 lbs. of Khat, a large leafy plant, indigenous to certain parts of Africa. Upon subsequent chemical analysis, the plant was determined to contain Cathine. That substance had been added to Schedule IV of the Federal Schedule of Controlled Substances in 1988. See 53 FR 17459 (1988). The appellant was subsequently charged with and, having waived his right to jury trial, tried by the court for, possession with intent to distribute and possession of Cathine, a controlled dangerous substance. As we have seen, the appellant was convicted of the former[***4] charge.

   B.

   The thrust of the appellant's argument is that the requirement of § 278(d) n3 that the Department update and republish the controlled dangerous substances schedules is designed to provide notice of the changes that have occurred in such schedules over the preceding year. But rather than focus on the Department, as § 278(d) does, the appellant chooses to interpret that section, together with what he perceives to be the intent of the overall scheme embodied in § 278, to require the General Assembly to, itself, update and republish the schedules. As he sees it, § 278(c) is merely a stop-gap measure - substances controlled consistently with the federal government's actions retain that status only so long as they are "new", i.e., until the next update or republication is required. With specific reference to the facts sub judice, the appellant asserts:

n3 Article 27, § 278(d) provides:
 
(d) Updating and republishing schedules. - The Department shall update and republish a schedule on a semiannual basis for two years from July 1, 1970, and thereafter on an annual basis.

[***5] [*517] 
 
Four to five years is ample opportunity [for the State to itself publish the law]. To decide otherwise is to unconstitutionally strain the word "new" in the statute. Furthermore, to give no legal effect to the scheduling requirement of § 278(d) would be an unconstitutional denial of the appellant's right to reasonable notice.
 
Appellant's Brief at 11. n4 

n4 In his opening brief, the appellant denied that he was challenging the constitutionality of § 278(c), noting that he saw "nothing improper about the State obtaining its information from the Federal government, incorporating the Federal regulations into its criminal justice apparatus, and designating the technical authority to make evaluations of drugs to its qualified State agency." Appellant's Brief at 8. On the contrary, he said that he took issue only with the trial court's interpretation of § 278(d), "the obvious intent of ... [which] is to enable the State to make amendments, additions, and corrections to the schedule of controlled dangerous substances as new drugs are developed or discovered [and].... to be protective of the rights of the citizens of the State to be both free from dangerous drugs and also to be free from intrusions on their constitutional rights to proper notice." Id. at 8-9. In his rebuttal brief, however, the appellant seems at times to be making the opposite argument, that § 278 is unconstitutional, at least if it is interpreted otherwise than as the appellant thinks it should be. Thus, he argues that, to be constitutional, § 278 must be interpreted so
 
(1) That the term "new" in Section 278(c) ... [is] given its usual and ordinary meaning within the context of the statute, to mean drugs which the State has not had a reasonable opportunity to incorporate into its schedule, and

 (2) That the actions of the Department shall be such as to give reasonable notice to the public of the drugs that are proscribed, by the publishing of updated schedules in the criminal code, and 

(3) That the Department act in coordination with the legislature so that the making of a new criminal law remains a legislative function.
 
Appellant's Rebuttal Brief at 1. The appellant also believes, and so contends, that failure of the Legislature, acting in conjunction with the Department, to act affirmatively to include in the Maryland schedule a substance controlled initially pursuant to § 278(c) and to codify that schedule would be an unconstitutional delegation of legislative authority to the federal government. Id. at 3. We decline to address these arguments, raised for the first time in rebuttal. See Langworthy v. State, 284 Md. 588, 399 A.2d 578 (1979), cert. denied, 450 U.S. 960, 101 S. Ct. 1419, 67 L. Ed. 2d 384 (1981); Beck v. Mangels, 100 Md. App. 144, 640 A.2d 236, cert. granted, 336 Md. 405, 648 A.2d 991 (1994); Federal Land Bank, Inc. v. Esham, 43 Md. App. 446, 406 A.2d 928 (1979).

[***6]

   C.

   Not unexpectedly, the State takes the opposite position. Relying on Samson v. State, [**1273] 27 Md. App. 326, 341 A.2d 817 [*518] (1975) and State v. Ciccarelli, 55 Md. App. 150, 461 A.2d 550 (1983), it counters the appellant's argument by pointing out that the statutory scheme does not contemplate that the controlling of specific substances is a task which is entrusted to the Legislature on every occasion when the issue arises; it is, rather, a matter which the Legislature has designated the Department to perform. Thus, the State argues that whenever a substance has been controlled pursuant to § 278(c), by the Department's failure to object, that substance remains controlled in Maryland even though the Legislature never includes it in the § 279 schedules. The State's argument goes even further. Recognizing that the focus of § 278(d) is on the Department, it contends that the failure of the designated agency to update and republish schedules on an annual basis, as it is required by § 278(d) to do, does not permit a defendant charged with an offense involving the possession of a substance previously controlled pursuant to § 278(c) to escape punishment. The State, in other words, [***7] accepts the holding of the Court of Special Appeals in Samson, supra, 27 Md. App. at 334, 341 A.2d at 823, that the updating and republication requirement in § 278(d) is "directive only and although its failure is an abrogation of the Department's responsibility, its absence does not erase the law." Furthermore, the State notes that because § 278(d) makes clear that the schedules in § 279 are not necessarily the most current or accurate lists of controlled substances in Maryland, and because it designates the Department as the repository of such lists, the appellant was on notice to make appropriate inquiries with the Department.

   II

   We approach, as the parties have done, the critical issue in this case - the role of the General Assembly in the updating and the republication of the controlled dangerous [*519] substances schedules - by determining the meaning of § 278(d). Thus, we once again must engage in statutory interpretation. Determining the meaning and purpose of a statute requires, in addition to the words that the Legislature used in enacting it, consideration of the statutory scheme of which it is a part. See State v. Crescent Cities Jaycees Found, Inc., 330 Md. [***8] 460, 468, 624 A.2d 955, 959 (1993); Baltimore Gas & Elec. Co. v. Public Serv. Com., 305 Md. 145, 157, 501 A.2d 1307, 1313 (1986). Moreover, no portion of the statutory scheme should be read "so as to render the other, or any portion of it, meaningless, surplusage, superfluous or nugatory." GEICO v. Insurance Commissioner, [**1274] 332 Md. 124, 132, 630 A.2d 713, 714 (1993).

   III

   Section 278 deals with the "control of substances." The scheme it prescribes contemplates that the need to control dangerous substances will be decided in three ways. Under the first, pursuant to the command that the agency is responsible for controlling all substances enumerated in § 279, the Department "may, by motion or on the petition of any interested party pursuant to the procedures of the Administrative Procedure Act, and after notice and hearing, add a substance as a controlled dangerous substance." Subsection (a). The determination whether to add a substance must be made in light of eight factors, i.e.:
 
(1) Its actual or relative potential for abuse;

(2) Scientific evidence of its pharmacological effect, if known;

(3) State of current scientific knowledge regarding[***9] the substance;

(4) Its history and current pattern of abuse;

(5) The scope, duration, and significance of abuse;

(6)What, if any, risk there is to the public health;

(7) Its psychic or physiological dependence liability; and

(8) Whether the substance is an immediate precursor of a substance already controlled....
 
[*520] Id. An order controlling a substance "shall issue" if the Department's findings reveal that the subject substance has a potential for abuse. Id.

   The second method of controlling substances relates to "new" substances controlled under federal law. Thus, when federal law designates as controlled a substance not previously controlled in Maryland, that substance "shall be similarly controlled under this subheading unless the Department objects to such inclusion or rescheduling." Also contained in subsection (c) is the third method. In the event that the Department objects to the federal control of a substance, it is required to cause its reasons to be published and made public and to conduct a hearing. The decision reached at the conclusion of the hearing, which must be published and made public, [***10] is final. Subsection (d) places on the Department the responsibility to "update and republish a schedule ... on an annual basis," beginning after July 1, 1970. Thus, what subsection (d) requires the Department to do is quite clear; the words the Legislature used are not at all ambiguous. See Harris v. State, 331 Md. 137, 145, 626 A.2d 946, 950 (1993); State v. Thompson, 332 Md. 1, 7, 629 A.2d 731, 734 (1993). The question then becomes what is the purpose of subsection (d)?

   IV

   Although the Samson court touched upon it, the issue that this case presents was neither the focus nor the issue in that case. Notwithstanding that the defendant had challenged "whether the procedures followed [to control Phendimetrazine and communicate that act] were correct under the statute," id. at 330, 341 A.2d at 821, the question addressed by the Samson court actually was the sufficiency of the evidence - the adequacy of the proof offered by the State to prove that phendimetrazine, a substance not listed in § 279(c), was indeed a controlled substance, "that this has been made part of the law by virtue of Dr. Solomon's including it." 27 Md. App. at 329, 341 A.2d at 820. The State [***11]offered a letter from the Secretary of the Department of Health & Mental Hygiene, addressed to dentists, hospital administrators, manufacturers [*521]and wholesalers, pharmacies, physicians and veterinarians, specifying that phendimetrazine was a Schedule III controlled substance, as proof that phendimetrazine was controlled in Maryland. Id. at 340, 341 A.2d at 826. The letter purported to be "in compliance with § 279(c) and (d) of Art. 27" and to give notice "to reschedule, update, and republish" the substances listed. Id. According to the letter, "this action is being taken in order for the Maryland Controlled Dangerous Substances Act to conform with the Federal Comprehensive Drug Abuse Prevention and [**1275] Control Act of 1970 (Public Law 91-513)." Id.

   Seeking to ascertain the nature and effect of the Secretary's letter, the court considered the Department's responsibility for updating and republishing schedules pursuant to § 278(d) and for controlling dangerous substances pursuant to § 278(a). Noting that "an updated or 'republished schedule' certified as a true copy by the custodian of the republished schedule adopted pursuant to law, would be prima facie evidence of compliance[***12] with subsection (a) and Art. 41, Sec. 9 [present Maryland Code (1984, 1993 Repl. Vol.) §§ 10-106, 107 of the State Government Article] which, if unrebutted, would presume conformity with the formalities prescribed by those sections," id. at 332, 341 A.2d at 822, the court concluded that the letter was not a republished schedule pursuant to § 278(d); rather it was simply a notification, as an agency service, from the Department. Id. at 332-33, 341 A.2d at 822. That did not end the inquiry, however. It remained to be determined whether the substance had ever been controlled under Maryland law. Toward that end, and cognizant that the letter stated its purpose - "to conform [the Maryland Controlled Dangerous Substances Act] with the Federal Comprehensive Drug Abuse Prevention and Control Act of 1970" - the court directed its attention to § 278(c). It opined that it was by use of that method that phendimetrazine had been controlled. Id. at 333, 341 A.2d at 822.

   Holding that the State's proof was legally sufficient, id. at 335, 341 A.2d at 823, the court rejected, as running afoul [*522] of the maxim that ignorance of the law is no excuse, the argument that, because the[***13] unlawfulness of possession of phendimetrazine was derivative, the defendant had inadequate notice. Id. at 334, 341 A.2d at 823. Responding to that argument, the court concluded that § 278(d) n5
 
"is directive [*523] only" and, consequently, [**1276] that the Department's failure to comply with its direction "does not erase the law." Id. Indeed, the court asserted, "neither the letter of notification nor a subsection (d) republication is prerequisite to effecting an inclusion of a 'new substance' under the control of Maryland law." Id. at 334-35, 341 A.2d at 823-24. 

n5 The Samson court suggested that subsection (d) was included in § 278 "for obvious reasons." Samson v. State, 27 Md. App. 326, 331, 341 A.2d 817, 821 (1975). It did not state explicitly what those reasons were, although an observation made in a footnote provides a clue: "Presumably the appellant's denied request to argue whether he knew of the law was based upon the Health Department's failure to comply with the annual republication direction in Sec. 278(d)." Id. at 331 n.5, 341 A.2d at 821 n.5. Similarly, the court's discussion of § 278(d) in the context of the maxim that ignorance of the law is no defense suggests that the court recognized subsection (d) as a notice provision. Id. at 334, 341 A.2d at 823. It appears that the Ciccarelli court viewed the provision the same way and for the same reasons. See 55 Md. App. at 159, 461 A.2d at 555-56.

   There does not appear to be any conceivable purpose for subsection (d) other than to require compilation, on an annual basis, and publication in a Maryland source, of a list of those substances that have been controlled during the preceding year. Consequently, § 278(d) is a notice provision. There is the suggestion in both Samson and Ciccarelli, see Samson, 27 Md. App. at 330-335, 341 A.2d at 820-23; Ciccarelli, 55 Md. App. at 160, 461 A.2d at 556, that subsection (d) has relevance only with respect to substances controlled by the affirmative action of the Department and not as to those derivatively controlled by reference to the federal schedules. The statutory scheme embodied in § 278 does not support that conclusion. Rather than placing it immediately following subsection (a), the Legislature placed subsection (d) at the very end of the statute, clearly evidencing the intent that the Department update and republish the schedules to reflect all changes during the preceding year, by whatever method those changes may have been effected.

   In fact, an updated and republished schedule of controlled dangerous substances is more necessary when substances are controlled pursuant to the first sentence of subsection (c), by virtue of the Department's failure to object to the federal control of a substance. Under subsection (a), substances are controlled pursuant to an order issued, after notice and hearing, pursuant to the Administrative Procedure Act, (the "APA"). See Maryland Code (1984, 1993 Repl. Vol.) § 10-101 et. seq. of the State Government Article. The APA provides that the required notice must appear in the Maryland Register, § 10-111; see § 10-112, the temporary supplement, see § 7-206, to the Code of Maryland Regulations (COMAR), the official compilation of regulations issued by State agencies. See § 7-205. Moreover, the order controlling the substance must also appear in COMAR. See § 10-114. Therefore, on each occasion that a dangerous substance is controlled by the Department pursuant to subsection (a), there necessarily will be provided in a Maryland source notice of that fact. That is also true when the substance is controlled pursuant to subsection (c), after the Department's objection. On the other hand, when control is by virtue of the Department's failure to object, notice that the substance has been controlled will never appear anywhere in the Maryland regulatory machinery.

   Compliance with subsection (d) would assure that notice that "new" substances have been controlled in Maryland is provided in a Maryland source. An updated republished schedule of controlled dangerous substances fits within the broad definition of regulation. A regulation is defined by Maryland Code (1984, 1993 Repl. Vol.) § 10-101(e) of the State Government Article, as
 
a statement or an amendment or repeal of a statement that:

(i) has general application;

(ii) has future effect;

(iii) is adopted by a unit to;

1. detail or carry out a law that 

the unit administers;
 
* * * 
 
(iv) is in any form, including:

1. A guideline;

2. A rule;

3. A standard;

4. A statement of interpretation; or

5. A statement of policy.

 
Section 7-205(a)(2) and (3) of that Article requires that each regulation and each document that the General Assembly requires to be published with a regulation be included in the Code of Maryland Regulations (COMAR), the official compilation of the regulations issued by Maryland agencies. See also § 10-114. 
 
An order adding a substance as controlled, pursuant to subsection (a), thus must be published in COMAR. See n. 5 supra; Samson 27 Md. App. at 331-32, 341 A.2d at 821-22. It would appear that an updated and republished schedule compiled pursuant to subsection (d), must be also.

[***14]

   That § 278(d) is directive only was reaffirmed in Ciccarelli. In that case, among other challenges, the defendants argued that § 278(c) did not provide notice to a person of ordinary intelligence that the particular substance for the possession of which they were convicted was proscribed by Maryland law and thus denied them due process as guaranteed by the [*524] Fourteenth Amendment and Article 23 of the Maryland Declaration of Rights. The specific defect to which they referred was the statute's requirement that a defendant consult federal law to determine whether the substance is banned in Maryland. Noting the defendants' reliance on § 278(a) and (d), the court stated, "the fact that PCPY has not been included in an update of the Maryland schedules does not affect its legality. While it might be the better practice for the Department to publish an update annually, its failure to do so does not make lawful that which is not lawful." Id. at 160, 461 A.2d at 556. The court was equally unimpressed with the argument, quite similar to that made in the case sub judice, that "a 'new' substance within the meaning of 'a fair and reasonable' interpretation of the adjective 'new' as[***15] used in § 278(c) [is] ... 'new' only until such time as the Maryland General Assembly next meets following the inclusion of the substance on the federal schedule." Id. at 153, 461 A.2d at 553. That argument, the court asserted, was "contrary to the unmistakable purpose of the General Assembly in enacting § 278(c)." Id. at 154, 461 A.2d at 553.

   V.

   Subsection (d) of § 278 requires that the updating and republication of controlled dangerous substances schedules be done by the Department, not by the General Assembly. Consequently, the State correctly argues that the Legislature is under no obligation to republish or update the schedules within some "reasonable" time after a substance has been controlled either by the Department or pursuant to subsection (c). In that regard, its reliance on the legislative history to the 1986 amendment of § 279 is telling and appropriate. In connection with the 1986 amendment to House Bill 1479, a summary of the committee report, referring to the fact that the bill added certain substances to schedules already in existence, stated:
 
[*525] The substances added by this bill to the State schedules are controlled under federal law, and the[***16] Department of Health and Mental Hygiene does not object to their inclusion as controlled dangerous substances by the State. While not required in order for the State to regulate these substances, the additions should be helpful to law enforcement officers, drug inspectors, judges and others who need to refer to the latest list of controlled substances. The addition of these substances will equate the State schedules with those of the federal government. 
 
[**1277] That comment does not, however, negate, or even address, the Department's responsibility under subsection (d) annually to update and republish schedules. The Legislature thus is not, itself, required annually to update and republish the schedules contained in § 279. Because that is the premise of the appellant's argument, we reject it. It is the Department to which the legislative mandate contained in subsection (d) is directed. n6 

n6 In delegating to the Department the responsibility annually to update and republish the controlled dangerous substances schedules, the Legislature used the word "shall," thus, mandating that the Department discharges that responsibility. See In Re James S., 286 Md. 702, 708, 410 A.2d 586, 589 (1980) ("Under settled principles of statutory construction, the word 'shall' is ordinarily presumed to have a mandatory meaning"); State v. Hicks, 285 Md. 310, 334, 403 A.2d 356, 368 (1979) (same); Johnson v. State, 282 Md. 314, 321, 384 A.2d 709, 713 (1978) ("We have stated on numerous occasions that in the absence of a contrary contextual indication, the use of the word 'shall' is presumed to have a mandatory meaning, ..., and thus denotes an imperative obligation inconsistent with the exercise of discretion."); Moss v. Director, 279 Md. 561, 564-65. 369 A.2d 1011, 1013 (1977) ("It is now a familiar principle of statutory construction in this State that use of the word "shall' is presumed mandatory unless its context would indicate otherwise...."); United States Coin & Currency, etc. v. Director of Finance, 279 Md. 185, 187, 367 A.2d 1243, 1244 (1977) (the use of the word "shall" ordinarily is presumed mandatory); Bright v. Unsat. C. & J. Fund Bod., 275 Md. 165, 169-70, 338 A.2d 248, 250-51 (1975) ("We observe that ordinarily the word 'shall,' unless the context within which it is used indicates otherwise, is mandatory when used in a statute, and thus denotes an imperative obligation inconsistent with the idea of discretion."); Maryland Med. Serv. v. Carver, 238 Md. 466, 479, 209 A.2d 582, 589 (1965) ("Ordinarily the word 'shall' is mandatory and it is presumed that the Legislature used this word in its usual and natural meaning unless there is something in the legislation to indicate otherwise."). At oral argument, we were informed that the Department has not always complied with the Legislative mandate. The State conceded that, from 1989 through 1991, the schedules were not republished, due to fiscal cutbacks. We were also told that updated schedules were republished in 1992, 1993 and 1994. Judging from the November 1, 1994 update, to the Department, republication apparently means sending the updated schedules to the pharmacies in the State and to the Depository Libraries for Maryland publications, rather than publishing them in COMAR or the Maryland Register.

   The effect of the Department's non-compliance with the subsection (d) mandate is not presented on this record. Accordingly, we expressly do not intimate any opinion as to the correctness of the Court of Special Appeals' holding in Samson and Ciccarelli that subsection (d) is "directive" only or whether the Department's interpretation of "republish" is accurate. Instead, we leave resolution to another day, when the issues properly have been raised, briefed, and argued.

[***17] [*526]

   VI.
 
In 1988, the United States government controlled an ingredient in Khat, Cathine, as a schedule IV non narcotic controlled dangerous substance. It was listed in 53 FR 17459 in 1988 as Cathine ((+) - norpseudrophedrine). The appellant stipulated to the Maryland State Police's analysis of the large green leafy Khat plant seized from him. The laboratory report containing the analysis n7 concluded that the plant contained "Cathine IV CDS".

n7 The form is entitled "Maryland State Police Request for Laboratory CDS Examination Chain of Custody Log/Laboratory Report."

   The appellant challenges the sufficiency of the evidence to prove that Cathine IV CDS is the same substance as Cathine [(+) -norpseudophedrine]. Because, he submits, "the identification made by the State clearly does not match the name of the proscribed controlled dangerous substance in the Federal Register," the evidence was insufficient and he should, consequently, not have been convicted. He also argues that the court could not[***18] supply the necessary proof by taking judicial notice of common everyday factual information, since, in this instance, neither Cathine nor Norpseudophedrine is a commonly used or understood slang or colloquial word.

   [*527] The trial court rejected the appellant's argument, reasoning that all the appellant had done was to raise a mere theoretical possibility that the substance analyzed was different from that listed in the Federal Register. That, it concluded, was insufficient "to shift the burden of production to the prosecution to produce evidence that the substance tested did in fact comply with State guidelines." Op. at 3. The trial court also relied on Maryland Code (1974, 1989 Repl. Vol., 1993 Cum. Supp.) § 10-1001 of the Courts & Jud. [**1278]Proc. Art., which provides that the chemist's report alone is prima facie evidence that the subject substance was properly analyzed and constitutes a controlled substance. It concluded that the signed statement of the chemist was sufficient to prove that the analyzed substance was prohibited by Maryland law. The State entirely agrees with the trial court's analysis. So do we.

   In a sufficiency challenge, the applicable standard is "whether, after viewing[***19] the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." State v. Albrecht, 336 Md. 475, 479, 649 A.2d 336, 338 (1994); Tichnell v. State, 287 Md. 695, 717, 415 A.2d 830, 842 (1980) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560, 573 (1979)). What weight to give the evidence is a matter solely within the province of the trier of fact. Branch v. State, 305 Md. 177, 184, 502 A.2d 496, 499 (1986).

    In the present case, as we have seen, the court found the description supplied by the chemist to be sufficient to prove that the substance analyzed was a proscribed Schedule IV controlled substance. The chemical analysis did not just identify the substance analyzed as "Cathine IV CDS," it also identified the material submitted for analysis as "One (1) bundle of a greenish brown vegetable matter with a long greenish red stem, suspected (KHAT)." n8 A rational inference [*528] to be drawn from this evidence by a trier of fact is that Cathine IV CDS is the same substance that is controlled under federal law. We reject, therefore, the appellant's[***20] argument that "the Court has no way of knowing that cathine is or is not the same as cathine ((+)- norpseudophedrine)." Appellant's Reply Brief at 9. 

n8 The second page of the Federal Register states:
 
In the October 30, 1987 notice of proposed rule making, comments were solicited from persons interested in the proposed control action. DEA received comments regarding the proposed control of cathine ((+) norpseudophedrine) and its impact on the use of the plant known as khat. Following a review of the information available on the chemical constituents found in khat, it has been determined that khat will be subject to the same Schedule IV controls as cathine ((+)norpseudophedrine), one of the psychoactive substances found in khat. Such a position is consistent with the controls imposed on many other plants containing controlled psychoactive substances. 
 
53 FR 17459 (1988) (emphasis added).A

 
JUDGMENT AFFIRMED, WITH COSTS. 

                       
DOROTHY BATTAGLIA v. CLINICAL PERFUSIONISTS, INC. 
No. 123, September Term, 1994
 
COURT OF APPEALS OF MARYLAND
 
338 Md. 352; 658 A.2d 680; 1995 Md. LEXIS 63; 2 Wage & HourCas. 2d (BNA) 1273
 
   May  25, 1995, Filed

   PRIOR HISTORY: [***1] Appeal from the Circuit Court for  Anne Arundel  County pursuant to certiorari to the Court of Special Appeals. Robert H. Heller, Jr. JUDGE.

DISPOSITION: JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AFFIRMED. COSTS TO BE PAID BY THE APPELLANT, DOROTHY BATTAGLIA.

CORE TERMS:  wage, termination, salary, employment contract, terminated, termination of employment, failure to pay, notice, common law, indivisible, readiness, recovered, breach of contract, right of action, breached, promised, entitled to recover, weekly, hiring, work performed, obligation to pay, services rendered, two weeks, autotransfusion, terminating, installment, subtitle, withheld, contract of employment, indivisible contract

COUNSEL: ARGUED BY Christyne L. Neff (Francis J. Collins, Kahn, Smith & Collins, P.A., on brief) of Baltimore, MD, FOR APPELLANT.
 
ARGUED BY Thomas McCarthy, Jr. (McCarthy & Dernoga, on brief) of Annapolis, MD, FOR APPELLEE.

JUDGES: ARGUED BEFORE Eldridge, Rodowsky, Chasanow, Karwacki, Bell, and Raker, JJ. Opinion by Rodowsky , J.

OPINIONBY: RODOWSKY

OPINION:  
[*353] [**681] Opinion by Rodowsky, J.
 
Here we construe Maryland's Wage Payment and Collection Law (the Act), Maryland Code (1991, 1994 Cum. Supp.), §§ 3-501 through 3-509 of the Labor and Employment Article (LE). The Act provides, inter alia, for a private right of action for [***2]certain violations, in which up to three times the [*354] compensatory recovery may be awarded, together with counsel fees. § 3-507.1. As explained below, we shall hold that where the employer breaches an employment contract by terminating the employment after the employee's services had commenced, but where the employer timely pays the wages at the agreed rate for the work performed prior to termination of the employment, the private right of action does not lie.

   On October 3, 1991, the appellant, Dorothy Battaglia (Battaglia), and the appellee, Clinical Perfusionists, Inc. (CPI), entered into a written contract whereby Battaglia was to train to become, and perform services as, an on-call autotransfusion technician. n1 It seems to be conceded that the parties contemplated that the services would be performed in Monmouth Medical Center in Longbranch, New Jersey. n2 The contract provided for an annual salary of $17,000 payable in biweekly installments. On November 7, 1991, CPI notified Battaglia that her services were no longer desired. CPI paid Battaglia for services rendered up to November 8, 1991 and paid her two weeks severance pay.

n1 An autotransfusion technician operates a cell-saving machine which collects a patient's own blood lost during surgery, washes the blood, and returns it to the patient.

[***3] 

n2 We assume, arguendo, that the Act applies to this employment. Battaglia argued that the Act applies to her employment because the employment contract provided that "this contract is hereby made in the State of Maryland" and "shall be governed by and construed under the laws of the State of Maryland."

   Battaglia filed a two-count complaint in the Circuit Court for Anne Arundel County alleging in Count I breach of her employment contract and in Count II a violation of the Act. n3 [*355] Trial was to a jury. At the close of [**682]evidence the trial court granted Battaglia's motion for judgment on Count I as to liability, finding that CPI's termination of Battaglia's employment constituted a breach of contract. The jury awarded Battaglia $16,300 on Count I and $36,000 on Count II. The court thereafter granted, as to Count II, CPI's motion for judgment notwithstanding the verdict. 

n3 The relevant portions of the contract between CPI and Battaglia provided:
 
"5.
 
COMPENSATION Employee shall receive an annual salary of $17,000 to be paid in biweekly installments and subject to all applicable witholding [sic] taxes. This salary may be increased in accordance with company policy without affecting the force and effect of the remaining terms of this contract. In addition to said salary, the Employee shall receive CPI's standard package of benefits. CPI hereby reserves the right to alter its standard benefit package during the term of this contract as CPI sees fit.
  
"6.
 
TERM This contract shall be for a term of one year, commencing October 3, 1991, and unless terminated by either party shall automatically be renewed for annual terms thereafter. This contract may be terminated by either party upon the giving of at least two (2) week's written notice. Should Employee fail to give at least two weeks written notice prior to terminating his/her employment with CPI, Employee agrees that he/she shall forfeit his/her last paycheck for the two weeks worked prior to termination without notice. Additionally, CPI may terminate this contract with no notice should Employee fail to successfully complete any portion of his/her training, or receive a negative review from the person conducting his/her training."

[***4]

   Battaglia appealed to the Court of Special Appeals, and we issued certiorari on our own motion prior to consideration of the matter by the intermediate appellate court.

   The parties agreed that it would be unnecessary to transcribe the record of the trial for this appeal. We infer that the trial court construed the provision in the written contract concerning notice by CPI of termination of employment to be limited to a notice given at least two weeks prior to, but effective only as of, an anniversary of the contract. CPI has not appealed the judgment against it on Count I. Consequently the construction of the notice provisions of the contract is not before us.

   The sections of the Act that are most relevant to the parties' arguments are set forth below.
 
" § 3-501. Definitions.

   ....

   (c) Wage. -- (1) 'Wage' means all compensation that is due to an employee for employment.

   [*356] (2) 'Wage' includes:

   (i) a bonus;

   (ii) a commission;

   (iii) a fringe benefit; or
 
(iv) any other remuneration promised for service."
 
" § 3-502. Payment of wage.

   (a) Pay periods. -- (1) Each employer:

    (i) shall set regular pay periods; and
 
(ii) except as provided in paragraph[***5] (2) of this subsection, shall pay each employee at least once in every 2 weeks or twice in each month. ..."
 
" § 3-505. Payment on termination of employment.

   Each employer shall pay an employee or the authorized representative of an employee all wages due for work that the employee performed before the termination of employment, on or before the day on which the employee would have been paid the wages if the employment had not been terminated."

   Prior to October 1, 1993 Md. Code (1991), LE § 3-507 was the exclusive civil enforcement mechanism in the Act. It provides for initial informal mediation by the Commissioner of Labor and Industry. Id. § 3-507(a)(1). Thereafter, with the consent of the employee, the Attorney General may bring an action on the employee's behalf, id. § 3-507(a)(2), in which "the court may award the employee an amount not exceeding 3 times the wage." Id. § 3-507(b)(1). The private remedy which Battaglia seeks to enforce was added to the Act as § 3-507.1 by Chapter 578 of the Acts of 1993, effective October 1, 1993. n4 1993 Md. Laws at 2869. This section reads:

n4 CPI has argued that the remedy does not apply retroactively to the facts of this case. In view of our holding, infra, construing the Act contrary to Battaglia's contentions, we shall assume, arguendo, that the 1993 amendment otherwise would provide an available remedy.

[***6]
 
" § 3-507.1. Action to recover unpaid wages.

   (a) In general. -- Notwithstanding any remedy available under § 3-507 of this subtitle, if an employer fails to pay an [*357] employee in accordance with § 3-502 or § 3-505 of this subtitle, after 2 weeks have elapsed from the date on which the employer is required to have paid the wages, the employee may bring an action against the employer to recover the unpaid wages.

   (b) Award and costs. -- If, in an action under subsection (a) of this section, a court finds that an employer withheld the wage of an employee in violation of this subtitle and not as a result of a bona fide dispute, the court may award the employee an amount not exceeding 3 times the wage, [**683] and reasonable counsel fees and other costs." n5 

n5 Chapter 578 also amended § 3-507 to include a provision for counsel fees. 1993 Md. Laws at 2868.

 
The circuit court granted CPI judgment on Count II at the conclusion of a colloquy with Battaglia's counsel. As we interpret that colloquy the circuit [***7]court considered § 3-505 to control Count II. The court reasoned that CPI had not violated the Act because, under the plain language of § 3-505, CPI had paid "all wages due for work that the employee performed before the termination of employment."

   Battaglia argues that CPI breached the contract and "nowhere in the contract is the employer released from its obligation to pay the wages promised for the term of one year." Appellant's Brief at 6. Relying on that premise, Battaglia asserts that § 3-502 controls, and not § 3-505. Section 3-502 requires an employer to pay to each employee that employee's wages "at least once in every 2 weeks or twice in each month." § 3-502(a)(1)(ii). Battaglia argues that CPI's breach did not extinguish its obligation to pay wages, and that § 3-502 continues CPI's duty to pay Battaglia's wages every two weeks.

   Battaglia further asserts that § 3-505 deals only with "valid" terminations, i.e., those not effected by breach of contract, and that § 3-505 does not apply when there has been an "invalid" termination. An "invalid" termination of an employment contract, in Battaglia's reasoning, simply continues the [*358] employment and the obligation[***8] to pay the agreed wages per § 3-502. Here, Battaglia submits that she continued to be available for autotransfusion duties if called upon so that CPI continued to be obliged to pay her wages. Battaglia concludes that CPI's failure to pay the wages every two weeks violated § 3-502 and subjected CPI to § 3-507.1's remedy of potentially trebling those wages which were withheld.

   We were advised at oral argument that the amount of the verdict on Count I reflects any adjustment that the jury might have made in applying the doctrine of avoidable consequences, sometimes called the duty to mitigate. We were further advised that both parties assumed that, if the verdict on Count II had been allowed to stand, it would have been reduced by the amount of the verdict on Count I, in order to avoid a double recovery. Battaglia thereby treats as one and the same thing (1) the amount awarded for breach of the employment contract under Count I and (2) what § 3-507.1 refers to as the wage "withheld" that could be the factor to which a multiplier from zero up to and including three is applied in order to arrive at a verdict under Count II. n6 

n6 CPI has not presented any alternative argument that, even if the jury properly found a violation of the Act, it was nevertheless the duty of the court, and not of the jury, to apply the multiplier. Consequently, that issue is not before us.

[***9]

   Battaglia's arguments fail to distinguish between the employer's power to terminate the employment relationship by breach of contract and the employer's resulting and continuing liability for that breach of contract. The arguments fail to distinguish between the employer's liability for failure to pay for work already done ("back wages") and the employer's liability for damages for the failure or refusal to pay the wages anticipated to be paid over the balance of the term of the breached employment contract. At common law, where, as here, the contract is entire, i.e., indivisible, and the employment has been terminated, back wages may be recovered either by claiming the value of the work performed ( quantum meruit), or by including the back wages as part of a claim for [*359]breach of the express contract. Hippodrome Co. of Baltimore v. Lewis, 130 Md. 154, 157, 100 A. 78, 79 (1917); Olmstead v. Bach, 78 Md. 132, 145, 27 A. 501, 503 (1893); Keedy v. Long, 71 Md. 385, 390, 18 A. 704, 705 (1889). The Act in § 3-507.1 adds additional incentives to either form of common law action. In the case before us, Battaglia seeks in Count II to characterize her Count I claim for[***10] contract damages for breach of the promise to pay wages in the future as a claim for wages, as such, based on her readiness and availability to perform the services of the [**684] employment, after its termination and throughout the balance of the period agreed to for employment. Conceptualizing the effect of the breach of an employment contract in this fashion is known as "constructive service." It is a doctrine that "has been altogether repudiated both in England and in this country" for more than a century. Olmstead v. Bach, 78 Md. at 150, 27 A. at 505.

   Olmstead involved a contract under which the plaintiff promised to render services as a cutter in the defendant's merchant tailoring business for one year for which the defendant promised to pay a salary of $50 per week, payable weekly. The contract "was not fifty-two separate, independent contracts, but one indivisible agreement covering the period of a year and making provision for the weekly payment of wages." 78 Md. at 143, 27 A. at 502. The defendant breached the contract by terminating the employment, but paid the plaintiff in full for the week ending April 9, during which the plaintiff was dismissed. Prior to the action[***11] in the reported case, the plaintiff sued before a justice of the peace and obtained judgment for $50, the equivalent of the wage for the week ending April 16, which was paid. In the reported case the plaintiff again sued, seeking $250, the wages for the five weeks immediately following April 16. This Court held that the action was barred because of splitting of the cause of action on the indivisible contract. In an effort to avoid the legal conclusion that the prior suit had been one for breach of the contract of employment, the plaintiff argued that it was an action for wages. This Court said:

   [*360] "But it is insisted the pending suit is not for damages for dismissing the plaintiff, but that it is an action on the contract to recover the plaintiff's salary for the five weeks following the one for which a recovery had been had before the justice of the peace. And the right to recover this salary as salary and not as damages for a breach of the contract, is based upon the plaintiff's readiness and willingness to perform his work, and not upon his actual performance of it. In other words, he seeks to recover instalments of salary for work which he never performed, and to recover them[***12] merely because he was willing to perform it but was prevented from doing so. As thus presented, under a contract that is indivisible, and which covers a hiring for a whole year at a salary payable in weekly instalments, it is a claim to recover for constructive services. ... In both indebitatus assumpsit and in an action on an express contract to recover wages for services which have not been performed, a recovery is sought for the amount that the plaintiff would have been entitled to recover had the services in fact been rendered; and such recovery is sought, not because the services have been rendered, but because the plaintiff was ready and willing to render them and the defendant prevented him. In both instances, therefore, the readiness of the plaintiff to perform and the refusal of the defendant to allow a performance constitute, when unearned wages are sued for, the ground of the actions, though the forms and the allegations of the pleadings are widely different. That which is sought to be recovered in both cases is the same thing, viz., wages as wages--though in the one case it is under the allegation of work and labor done, which allegation is attempted to be supported[***13] by the proof of a readiness and willingness to perform; and in the other it is under an allegation of a refusal to allow that work to be done which the plaintiff had agreed to do, and continues ready and willing to do. Salary as salary, definitively fixed and agreed to, and not a sum of money as unliquidated damages for a broken contract of hiring, is what is sued for under the declaration in the case at bar. It is a suit to [*361] recover wages though no services have been rendered at all, and, if maintainable in that form, would preclude the defendants from showing by evidence that the plaintiff could have secured other similar employment during the time covered by the contract; because if wages, distinctively as wages, can be recovered under such conditions instead of damages for a wrongful discharge or dismissal, they must be recovered as specific, ascertained debts, the amount of which is fixed by the contract, and is in no way subject to abatement by [**685] circumstances which would reduce the damages in a suit founded on a refusal by the defendant to allow the plaintiff to perform his part of an indivisible contract of hiring. In other words, if under such a contract the plaintiff is[***14] entitled to recover wages as wages upon a mere offer to perform, he must be entitled to recover just precisely the wages named in the contract, even though he might have obtained other work of the same kind at the same price during the period for which he claims his wages under the contract. This would be recovering for constructive services. That doctrine has been altogether repudiated both in England and in this country. Keedy v. Long, 71 Md. 385, 18 A. 704."
 
Olmstead, 78 Md. at 148-50, 27 A. at 504-05. See also Howard v. Daly, 61 N.Y. 362, 369 (1875); James v. Allen County, 44 Ohio St. 226, 236-37, 6 N.E. 246, 252 (1886); Goodman v. Pocock, 117 Eng. Rep. 577, 580, 15 Q.B. 576, 583-84 (1850); Elderton v. Emmons, 136 Eng. Rep. 1213, 1219-20, 6 C.B. 160, 178 (1848), aff'd, 138 Eng. Rep. 1292, 13 C.B. 495 (1853); 5 A. Corbin, Corbin on Contracts § 1095, at 515 (1964); 11 S. Williston, Treatise on the Law of Contracts § 1361, at 315 (W. Jaeger ed., 3d ed. 1968).
 
Thus, where an indivisible employment contract has been breached, there is a difference between future wages and past wages. Future wages, reduced by whatever credit for avoidable consequences[***15] that the employer can demonstrate, and reduced to present value in appropriate cases, is the measure of damages for the failure to pay wages that would have been payable for services that would have been rendered under the contract. On the other hand, past wages, in full, [*362] measure damages for failure to pay wages for services rendered prior to termination. n7 

n7 The discharged employee also has the option of treating the contract as rescinded by the breach and suing for the market value of the services rendered but not paid for at the agreed rate. Keedy v. Long, 71 Md. 385, 18 A. 704.

   Against the foregoing background, nothing in §§ 3-502 or 3-505 of the Act alters the common law analysis. Section 3-507.1 supplements, but does not alter, the common law remedies. Nothing in the definition of "wage" in § 3-501(c) alters the common law analysis. There is no indication in the statutory text that the terms "compensation" in § 3-501(c)(1) or "remuneration" in § 3-501(c)(2)(iv) are intended to encompass contract[***16] damages in which promised wages for future services, not rendered, may enter into the damages computation.

   The construction of the Act that looks to § 3-505 as the applicable violation where wages have not been paid for work done prior to termination of the employment also harmonizes § 3-505 with § 3-502. Under § 3-505 the violation of the Act is not the termination of the employment but the failure to pay "wages due for work that the employee performed before the termination of employment." The failure becomes a violation upon expiration of "the day on which the employee would have been paid the wages if the employment had not been terminated." Id. That day is determined by the agreement of hire which, in turn, is regulated by the pay period requirements of § 3-502.

   Further, § 3-505 is the more particular provision with respect to terminations of employment, the situation presented in the matter before us. Section 3-505 is not in terms limited to terminations that might be found to be rightful or consistent with any contract of employment. Similarly, if one reads § 3-502 to apply to the termination situation as well (other than by regulating the maximum period between[***17] paydays), § 3-502 would not in terms be limited to wrongful, or [*363] contract breaching, terminations and, accordingly, would be duplicative of § 3-505.

   Battaglia's alternative submission is that, even if § 3-505 is the relevant section for determining whether there has been a violation when the employment is terminated, there nevertheless has been a violation of § 3-505 in this case because all future wages became "due" when the breach occurred, although no installment of wages would be "payable" until the payday on which the wages otherwise would have been payable if the employment had not been terminated. This argument gives no effect at all to the [**686] express limitation in § 3-505 to wages "due for work that the employee performed before the termination of employment."
 
From the plain language of the Act we conclude that there is no violation giving rise to an action under § 3-507.1 where wages have been paid in full for work that was performed prior to termination. Further, even if there were an ambiguity affecting the issue before us, we note that our construction is consistent with the purpose of the private remedy as articulated by the first named sponsor of that amendment[***18] to the Act.

   Prior to Chapter 578 of the Acts of 1993 the Commissioner of Labor and Industry and the Attorney General enforced the Act. § 3-507. Budget restraints, however, severely curtailed the Commissioner's ability to prosecute these claims:

   "Until the budget crises, employees could seek redress by filing a complaint with the Commissioner of Labor and Industry. ... The Division of Labor and Industry no longer has the funding or the staff to handle wage payment complaints."
 
Wage Payment and Collection Law, 1993: Hearings on H.B. 1006 Before the House Economic Matters Committee, Floor Report (microfilmed at H.B. 1006 Legislative Reference File (1993)) (Hearings).

   [*364] With the disappearance of financial authorization for the State to prosecute the wage claims of private individuals, two similar bills were introduced during the 1993 legislative session to provide for a private right of action, House Bill 1006 and Senate Bill 274. House Bill 1006 was enacted.

   Written testimony presented to the House Economic Matters Committee on behalf of the lead sponsor of House Bill 1006 reflects that its principal purpose was to provide a vehicle for employees to collect, [***19] and an incentive for employers to pay, back wages.
 
"With the passage of this bill into law, individuals will be able to take their claims to small claims court and sue their employer for violation of the wage payment and collection laws if they have not been paid wages for work they have already performed. Without such a private right of action, the State is in a position in which it requires employers to pay employees for work performed, but it cannot enforce that law.
 
Hearings, Testimony presented for Delegate Connie C. Galiazzo (emphasis added).

   For all of these reasons, the judgment of the Circuit Court for Anne Arundel County is affirmed.
 
JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AFFIRMED. COSTS TO BE PAID BY THE APPELLANT, DOROTHY BATTAGLIA.

                       
STATE OF MARYLAND v. STEVEN DONNELL PARKER 
No. 89, September Term, 1994
 
COURT OF APPEALS OF MARYLAND
 
347 Md. 533; 702 A.2d 217; 1995 Md. LEXIS 53

 May  9, 1995, Filed

   PRIOR HISTORY: [***1]

   Certiorari to the Court of Special Appeals (Circuit Court for  Anne Arundel  Co.). Raymond G. Thieme, JUDGE.

DISPOSITION: JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED. CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO REMAND THE CASE TO THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY FOR FURTHER PROCEEDINGS. COSTS IN THE COURT OF SPECIAL APPEALS AND THIS COURT TO BE PAID BY RESPONDENT.

CORE TERMS:  postponement, good cause, inordinate, trial date, scheduling, designee, prosecutor, arrest, postponed, congestion, mandatory, deadline, two-step, chronic, motion to dismiss, new trial date, criminal case, sanction of dismissal, speedy trial, post-postponement, relevance, rescheduling, arraignment, appearance, arrested, join, clear abuse of discretion, trial date beyond, express consent, case to trial

COUNSEL: ARGUED BY Ann N. Bosse, Assistant Attorney General, (J. Joseph Curran, Jr., Attorney General, on brief) of Baltimore, MD, FOR PETITIONER.
 
ARGUED BY Geraldine Kenney Sweeney, Assistant Public Defender, (Stephen E. Harris, Public Defender, on brief) of Baltimore, MD, FOR RESPONDENT.

JUDGES: ARGUED BEFORE Eldridge, Rodowsky, Chasanow, Karwacki, Bell, Raker, and McAuliffe, John F. (retired and specially assigned), JJ. Opinion by Karwacki, J. Rodowsky, Chasanow, and Raker, JJ. concur. Concurring Opinion by Raker, J., in which Rodowsky and Chasanow, JJ., join.

OPINIONBY: Karwacki

OPINION: [*534]

   [**217] Opinion by Karwacki, J. Rodowsky, Chasanow, and Raker, JJ. concur.

   In this case, we review the circumstances surrounding the scheduling of the trial of a criminal case beyond the 180-day mandate of Maryland Rule 4-271 n1 and determine[***2] whether the [*535] designee of the county administrative judge erred in concluding that Md. Rule 4-271 was violated and that the case must therefore be dismissed.

n1 Maryland Rule 4-271 provides in pertinent part:
 
"(a) Trial Date in Circuit Court. -- (1) The date for trial in the circuit court shall be set within 30 days after the earlier of the appearance of counsel or the first appearance of the defendant before the circuit court pursuant to Rule 4-213, and shall be not later than 180 days after the earlier of those events. . . . On motion of a party, or on the court's initiative, and for good cause shown, the county administrative judge or that judge's designee may grant a change of a circuit court trial date."

   [**218] I

   On November 16, 1992, Steven Donnell Parker was indicted by the Grand Jury for Anne Arundel County for numerous offenses. Parker initially appeared before the Circuit Court for Anne Arundel County for arraignment on December 14, 1992. The case was called for trial on March 30, 1993, [***3] before Judge Raymond G. Thieme, Jr., at which time the State advised the court that it was prepared to go to trial but that Parker was not present. Parker's attorney, who was also involved in another trial on March 30, advised the trial judge that she did not know where Parker was and that she had been unable to locate him since his release from the detention which followed his arrest. At that time, Judge Thieme, who was also the designee of the county administrative judge for purposes of compliance with Md. Rule 4-271, postponed the case and issued a bench warrant for Parker's arrest.

   Parker was arrested on that warrant on May 12, 1993. By letter dated June 9, 1993, the prosecutor outlined terms of a possible plea agreement and advised Parker's attorney that he had set trial for July 21, 1993, n2 in the event the parties were unable to reach an agreement on a plea. On July 19, 1993, Judge Thieme granted the State's request for a one-week postponement of the trial and ordered that motions be heard on July 21.

n2 In the Circuit Court for Anne Arundel County, the Office of the State's Attorney ordinarily schedules trial dates for criminal cases.

[***4]

   On July 21, 1993, Judge Thieme heard arguments on Parker's motion to dismiss for an alleged violation of Md. Rule 4-271. [*536] There was no dispute that the 180-day period specified in Md. Rule 4-271 (the Hicks n3 date) had expired on June 12, 1993. There also was no dispute that following Parker's arrest in May, the prosecutor had set trial for a date beyond that deadline. In granting Parker's motion to dismiss, Judge Thieme concluded that Md. Rule 4-271 had been violated because the State, after Parker's arrest in mid-May, had not scheduled a trial date prior to the Hicks date or sought a good cause finding for scheduling a trial date thereafter. Judge Thieme also stated that he had granted a postponement on March 30 because Parker was not present for trial but declined to determine whether there had been an inordinate delay between Parker's arrest on May 12 and the new trial date.

n3 State v. Hicks, 285 Md. 310, 403 A.2d 356 (1979).

   The Court of Special Appeals, in an unreported opinion, affirmed[***5] the judgment of dismissal. We granted certiorari upon the State's petition to determine whether dismissal was proper under these circumstances. For the reasons set forth below, we shall hold that dismissal was inappropriate in this case because Md. Rule 4-271 was satisfied.

   II

   The State contends that the appropriate rationale to be applied in this case is the two-step analysis which we employed in Rosenbach v. State, 314 Md. 473, 480, 551 A.2d 460, 463 (1989), and re-affirmed in State v. Cook, 322 Md. 93, 97-98, 585 A.2d 833, 835 (1991), which requires a finding of both good cause for postponement and the lack of inordinate delay in scheduling the ultimate trial date to satisfy Md. Rule 4-271. The State concludes that, if the Rosenbach analysis is employed, dismissal is not warranted in this case.

   Parker contends that the Rosenbach analysis does not apply in this case and that the prosecutor had an obligation to go to the administrative judge when it became clear that the case could not be tried within the 180-day limit. In Parker's [*537] words, "if the combination of when the failure to appear occurred and the length of time it takes to correct it is such that the prosecutor[***6] cannot try the case within the 180 day limit, then the prosecutor must go to the Administrative judge, explain the circumstances, and ask permission to exceed the 180 day limit."

   The Court of Special Appeals agreed with Parker, holding:

   "In this case, the prosecutor took it upon himself to schedule the trial beyond the [**219] 180-day deadline without first seeking the approval of the administrative judge. We are unable to conclude that the administrative judge abused his discretion in finding that the scheduling of the case was made without a good cause finding by the administrative judge. It follows that the court did not err in dismissing the indictment."
 
Without even mentioning the Rosenbach decision, the intermediate appellate court affirmed the dismissal of the case, based on the scheduling of the case by the prosecutor beyond the Hicks date without requesting a finding of good cause from the administrative judge. Accordingly, we shall reverse the judgment of the Court of Special Appeals and remand this case for trial.

   III

   In State v. Hicks, 285 Md. 310, 403 A.2d 356 (1979), we stated that the provisions of Maryland Code (1957, 1976 Repl. Vol.), Art. 27, [***7] § 591 n4 and Md. Rule 746, the forerunner to Rule 4-271, were mandatory:
[*538]
 
"The provisions of Rule 746 are of mandatory application, binding upon the prosecution and defense alike; they are not mere guides or bench marks to be observed, if convenient. Accordingly, Judge Pollitt was correct in holding that Rule 746 is mandatory and that dismissal of the criminal charges is the appropriate sanction where the State fails to bring the case to trial within the 120-day period prescribed by the rule and where 'extraordinary cause' justifying a trial postponement has not been established." n5
 
Id. at 318, 403 A.2d at 360. At its 1980 session, the Legislature retained the scope and mandatory nature of § 591, but changed the "extraordinary cause" requirement to one of "good cause." Ch. 378 of the Acts of 1980. n6 We later set forth the standard for reviewing a motion to dismiss for failure to try a defendant within 180 days:
 
"As the Hicks and Goins [293 Md. 97, 442 A.2d 550 (1982)] cases make clear, a trial judge entertaining such a motion must ordinarily grant it if the case was not tried within 180 days and if the trial was not postponed beyond that deadline[***8] in accordance with the statute and rule. But in making this determination, when reviewing a postponement beyond the 180-day deadline ordered by the administrative judge, deference must be accorded the judgment of the administrative judge and those assignment personnel acting under his supervision. We hold, therefore, as follows: with regard to both components of the 'good cause' requirement in § 591 and Rule 746, the trial judge (as well as an appellate court) shall not find an absence of good cause unless the defendant [*539] meets the burden of demonstrating either a clear abuse of discretion or a lack of good cause as a matter of law."
 
State v. Frazier, 298 Md. 422, 454, 470 A.2d 1269, 1286 (1984).

n4 Maryland Code (1957, 1976 Repl. Vol.), Art. 27, § 591(a) provided, in pertinent part:
 
"Within two weeks after the arraignment of a person accused of a criminal offense, or within two weeks after the filing of an appearance of counsel or the appointment of counsel for an accused in any criminal matter, whichever shall occur first, a judge or other designated official of the Circuit Court or the Criminal Court of Baltimore City in which the matter is pending, shall set a date for the trial of the case, which date shall be not later than six months from the date of the arraignment of the person accused or the appearance or the appointment of counsel for the accused whichever occurs first. The date established for the trial of the matter shall not be postponed except for extraordinary cause shown by the moving party and only with the permission of the administrative judge of the court where the matter is pending."
[***9] 

n5 Following our decision in State v. Hicks, supra, former Md. Rule 746 was amended in 1979 to increase the Hicks limit from 120 days to 180 days. 

n6 Md. Rule 746 was amended in 1980 to conform the rule with Article 27, § 591 as amended by ch. 378 of the Acts of 1980.

   Before addressing whether there was good cause in this case, we must first determine when the critical postponement occurred:

   "'The critical order by the administrative judge, for purposes of the dismissal sanction, is the order having the effect of extending the trial date beyond 180 days.' Frazier, 298 Md. at 428, 470 A.2d at 1272. Further, our holding in Goins v. State, 293 Md. 97, [**220] 442 A.2d 550 (1982), illustrates that the postponing judge need not make a specific finding that the postponement will of necessity carry the case beyond the 180 days."
 
Rosenbach v. State, 314 Md. at 478, 551 A.2d at 462. Once that date has been determined, we can address the remaining two-step analysis set out in Rosenbach: 

   "Nor is it essential, under the statute and rule, that the postponing judge, [***10] at the time of postponement or thereafter, personally reset or cause the case to be reset for a particular date. . . . But the only prerequisite is that the administrative judge or that judge's designee find good cause. Once that determination is made, the postponement is valid for purposes of the rule, subject only to the deferential review accorded the judge's good cause finding. . . .

   Once that occurs, the question is no longer whether there was a postponement for good cause. The issue then becomes the length of the delay. A case postponed for good cause may yet run afoul of the statute and rule if, after a valid postponement, there is inordinate delay in bringing the case to trial. The purpose of the rule is to promote the expeditious disposition of criminal cases, and this purpose is not served if, after a good cause postponement, nothing further is done to achieve that goal. Thus, the dismissal sanction may once again be invoked if, after a good cause postponement, trial is not begun with reasonable promptness."
[*540]
 
Id. at 479, 551 A.2d at 462-63 (citations omitted). The administrative judge need not be aware that his or her postponement will carry the case beyond the [***11]180-day limit and need not set the trial for a specific future date. Id. at 480, 551 A.2d at 463. "It is enough that the postponement be made by the administrative judge or designee, that it be for good cause, and that there be no inordinate delay between the postponement and the eventual trial." Id. (citations omitted).

   Once the critical postponement date is ascertained, therefore, we must apply a two-step analysis. First, we must ask whether there was good cause for the postponement which occurred on the critical date, and then we must determine if there was inordinate delay between the time of the good cause postponement and the trial date set by the assignment authority, in this case the Office of the State's Attorney.

   IV

   The critical postponement date in this case was March 30, the date on which the defendant failed to appear for trial. The indefinite postponement granted on that date carried the defendant's second trial date beyond the 180-day limit. See Frazier, 298 Md. at 428, 470 A.2d at 1272. Judge Thieme, as the designee of the county administrative judge, was the appropriate person to make the required good cause finding. Although Judge Thieme made no express[***12] finding of good cause for the March 30 postponement, it is patently obvious that unavailability of the defendant for trial constitutes good cause for a postponement. See, e.g., Frazier, 298 Md. at 462-63, 470 A.2d at 1290 (1984).

   The error made by both the Court of Special Appeals and the county administrative judge's designee was reading Rule 4-271 as requiring a specific good cause finding prior to scheduling of the case beyond the 180-day limit. The scheduling of the case by the Office of the State's Attorney was not the action that required good cause -- the March 30 postponement was. Rosenbach sets forth three important propositions: (1) the postponement which, in fact, carries the case beyond the 180-day [*541] limit, is the critical event, not the scheduling of the trial; (2) the judge granting that postponement need not be aware that it will cause the trial to occur beyond the 180-day limit and need not be involved in the rescheduling of the case; and (3) if the critical postponement was supported by good cause, the case will not be dismissed for failure to try the defendant before the Hicks date unless there has been an inordinate delay in scheduling the case for[***13] trial.

   Because good cause existed for the March 30 postponement by the designee of the county administrative judge in the instant case, the only [**221] remaining question in applying the principles set forth above is that of inordinate delay. Judge Thieme refused to make a finding on this issue at the hearing on Parker's motion to dismiss, and the intermediate appellate court also did not address the issue. The indefinite postponement was granted on March 30, but Parker was not arrested until mid-May. Thereafter, counsel were engaged in efforts to resolve the case without a trial. Little more than two months passed between Parker's second arrest and the new trial date. As a matter of law, we hold that the delay in this case between the time the defendant was arrested after his failure to appear for the initial trial date and the time of his ultimate trial date was not inordinate. We need not remand the case for a hearing on this issue, as we have upheld longer delays in previous cases. See Rosenbach, supra (characterizing 78-day delay as insufficient to meet Rosenbach's burden of showing inordinate delay); State v. Bonev, 299 Md. 79, 472 A.2d 476 (1984) (delay in excess of[***14] three months not a clear abuse of discretion); State v. Frazier, supra (no inordinate delay where delays ranged from slightly under three months to almost four months).

   As there was good cause for the initial postponement and no inordinate delay occurred in rescheduling the case for trial after Parker's second arrest, there was no violation of Md. Rule 4-271.
 
JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED. CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO REMAND THE CASE TO THE [*542] CIRCUIT COURT FOR ANNE ARUNDEL COUNTY FOR FURTHER PROCEEDINGS. COSTS IN THE COURT OF SPECIAL APPEALS AND THIS COURT TO BE PAID BY RESPONDENT.

CONCURBY: Raker

CONCUR:  
Concurring Opinion by Raker, J., in which Rodowsky and Chasanow, JJ., join.

   I join in Parts I and II of the majority opinion of the Court and in the mandate. I disagree, however, with the approach adopted in Parts III and IV of the opinion where the Court embarks on an analysis, purportedly required under Hicks v. State, 285 Md. 310, 403 A.2d 356 (1979), to determine whether there was inordinate delay requiring dismissal of the case between the good cause postponement and the trial date set by the assignment authority. In[***15] my view, the Court, having found good cause for the postponement, should not make an inquiry to determine if there was inordinate delay between the time of the good cause postponement and the trial date set by the assignment authority.

   "Inordinate delay" in the context of Rule 4-271 and Article 27, § 591 crept into our case law beginning with State v. Frazier, 298 Md. 422, 470 A.2d 1269 (1984). Today in the majority's opinion, "inordinate delay" becomes an independent basis (apart from failing to set a trial within 180 days without obtaining a continuance for good cause) for imposing the sanction of dismissal of a criminal case. In Hicks, we held that the sanction of dismissal was appropriate to enforce the mandatory 120-day period (now 180 days), where a case is not brought to trial within the time period and there is no postponement of the trial date complying with Rule 4-271 and § 591. 285 Md. at 318, 403 A.2d at 360. We should refrain, however, from expanding application of that extreme sanction to a new post-postponement "no inordinate delay" requirement that is not found in either § 591 or Rule 4-271.

   The majority relies on Rosenbach v. State, 314 Md. 473, 551[***16] A.2d 460 (1989), which relies on Frazier for the proposition [*543] that [***17]for a postponement. n1 In this context, the length of the post-postponement delay could shed light on the cause of the postponement itself, [**222] i.e., whether the cause was chronic or nonchronic congestion. Thus, the two-step look at "good cause" made perfect sense in Frazier, where the Court focused on postponements caused by an overcrowded docket. Although it suggested that an inordinately long delay might shift the burden of proof from the defendant to the State, the Frazier Court was not actually faced with such a case. Id. The Court's concern with the period of delay was inextricably intertwined with the determination of whether[***18] the postponement was for good cause.

 n1 In Frazier, we addressed the question of whether nonchronic congestion could be good cause for a postponement. We did not reach the question of whether chronic court congestion could ever constitute good cause. We noted, however, that in other states with statutes and rules similar to § 591 and Rule 4-271, "chronic court congestion is ordinarily not regarded as good cause for postponement." 298 Md. at 455, 470 A.2d at 1286. Further, as Judge Davidson pointed out in her dissent in Frazier, the Court has held that, in the context of constitutional speedy trial protections, chronic court congestion is inexcusable and is a factor to be weighed against the State. Id. at 474, 470 A.2d at 1269 (Davidson, J., dissenting).

   Defense attorneys rapidly picked up on this language and asserted lack of good cause for the extent of the delay until a new trial date. In State v. Bonev, 299 Md. 79, 81, 472 A.2d 476, 477 (1984), and Carey v. State, 299 Md. 17, 23, 472 A.2d[***19] 444, 447 (1984), the Court summarily rejected the defendants' arguments, holding that there was no showing of an abuse of discretion by the administrative judge (or those acting under the judge's supervision) in setting the new trial dates.

   In Rosenbach, 314 Md. at 479, 551 A.2d at 463, the defendant did not argue that post-postponement delay was inordinate. Nevertheless, the Court discussed the issue, taking the "inordinate length of time" and "undue delay" language in Frazier and combining it with a discussion of the purpose underlying Rule 4-271. The result was a statement that the "policy of the rule" (not the Rule itself) required dismissal if there was inordinate delay until the rescheduled trial after a [*544] good cause postponement that took the trial outside the 180 days. Id.

   Thus, whereas "inordinate delay" was a component of the "good cause" finding for the postponement in Frazier, it was transformed in Rosenbach to an independent consideration, subsequent to and independent of a finding of good cause for the postponement. This reasoning is now enshrined in the majority opinion as the law. But neither § 591 nor Rule 4-271 addresses timeliness of a trial[***20] date set in the post-180 day period -- and we should not do so. 

   Once the case is properly postponed beyond the 180 days, the dismissal sanction under § 591 and Rule 4-271 should have no relevance. As Judge Eldridge noted, writing for the Court in Farinholt v. State, 299 Md. 32, 41, 472 A.2d 452, 456 (1984) (emphasis added):

   Dismissal of a serious criminal case, on grounds unrelated to the defendant's guilt or innocence, is a drastic sanction. As the above-quoted language from Frazier indicates, the dismissal sanction for violating § 591 and Rule 746 should only be applied when it is needed, as a prophylactic measure, to further the purpose of trying a circuit court criminal case within 180 days. Once a postponement beyond the 180-day deadline is ordered in accordance with § 591 and Rule 746 (or upon the defendant's motion or with his express consent), it would not further this purpose to utilize the dismissal sanction for subsequent violations of the statute and rule. The sanctions for such subsequent violations must be ones of internal judicial administration, relating to circuit court personnel and/or procedures. See State v. Hicks, supra, 285 Md. at 335, [***21]403 A.2d 368. The defendant, of course, remains protected by his federal and state constitutional rights to a speedy trial.
 
See also State v. Brookins, 299 Md. 59, 62, 472 A.2d 465, 467 (1984) ("'After a case has already been postponed beyond the 180-day period, either in accordance with § 591 and Rule 746, or upon the defendant's motion, or with the defendant's express consent, the dismissal sanction has no relevance to [*545] subsequent postponements of the trial date unless the defendant's constitutional speedy trial right has been denied.'") (quoting Farinholt, 299 Md. at 40, 472 A.2d at 456).

   Our cases seem to disagree on what is necessary to further the purpose of Rule 4-271. Under Rosenbach, a lengthy delay to the new trial date after a good cause postponement could be the basis for dismissal, but under Farinholt, the same delay caused by repeated postponements after the 180 days, even if not for good cause, could not be sanctioned by dismissal. The simplest and fairest solution is to limit our use of the dismissal sanction to violations of the Rule itself, and to look to internal judicial administration procedures to control the dockets.

   [**223] The defendant in[***22] this case failed to appear for his trial, which was set within the 180-day period. There is no evidence in the record that he was unaware of this trial date. The reason for the postponement was his voluntary failure to appear; in my view, this is the equivalent of a motion by the defendant to continue the case. The administrative judge had good cause to order the "critical" continuance. Our inquiry should stop there. Rule 4-271 does not require that we scrutinize the process of rescheduling a trial date after the defendant's re-arrest. I would hold that under these circumstances, the sanction of dismissal has no relevance and any consideration of the length of the delay should be limited to constitutional speedy trial concerns.

   Judge Rodowsky and Judge Chasanow have authorized me to state that they join in this concurring opinion. 

ROBERT C. SCHAEFFER v. ANNE ARUNDEL COUNTY et al. 
No. 76, September Term, 1994
 
COURT OF APPEALS OF MARYLAND
 
338 Md. 75; 656 A.2d 751; 1995 Md. LEXIS 42
 
   April  7, 1995, Filed

   PRIOR HISTORY: Appeal from the Circuit Court for  Anne Arundel  County pursuant to certiorari to the Court of Special Appeals. Eugene M. Lerner, JUDGE.

DISPOSITION: [***1] JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT.

CORE TERMS:  ordinance, notice, laches, appointed, successive, analogy, county council, period of time, weeks prior, three-year, computation, accrual, retired, voiding, equitable remedy, municipality, statute of limitations applicable, cause of action, required notice, days prior, elected, intermediate, beneficiaries, equitable, effective, asserting, holiday, void, limitations period, applicable statute

COUNSEL: ARGUED BY John R. Greiber, Jr. (Council, Baradel, Kosmerl & Nolan, P.A., on brief) all of Annapolis, MD., FOR APPELLANT.
 
ARGUED BY David A. Plymyer, Deputy County Attorney (Judson P. Garrett, Jr., County Attorney, on brief) of Annapolis, MD. ARGUED BY Avery Aisenstark (Charles A.P. Christianson, Adelberg, Rudow, Dorf, Hendler & Sameth, LLC, on brief) of Baltimore, MD., FOR APPELLEE.

JUDGES: Murphy, C.J., Eldridge, Rodowsky, Chasanow, Karwacki, Bell, Raker, JJ.

OPINIONBY: KARWACKI

OPINION: [*77]
 
[**752] Opinion by Karwacki, J.
 
This case involves a challenge to the procedures followed in connection with the enactment of an Anne Arundel County ordinance that became effective July 1, 1989. Robert C. Schaeffer, the appellant, is a taxpayer and resident of Anne Arundel County. He seeks to have the ordinance declared void ab initio due to an alleged defect in the timing of notices published in The Capital. The issues presented are whether Appellant's claim is barred by laches, whether Anne Arundel County complied with the required notice procedures, and whether voiding the ordinance would violate the Contracts Clause of the United States Constitution.

   I

   On September 10, 1993, Schaeffer filed a complaint for declaratory judgment and injunctive relief in the Circuit Court for Anne Arundel County, challenging the enactment of Anne Arundel County Bill No. 36-89 ("the ordinance"), as it amended certain provisions of the Anne Arundel County Retirement Plan for Appointed and Elected Officials. [***2] n1 In its answer, Appellee Anne Arundel County asserted, inter alia, laches as an affirmative defense.

n1 Bill No. 36-89 made significant changes to the Anne Arundel County Retirement Plan for Appointed and Elected Officials, including reducing the normal retirement age from sixty to fifty, increasing the minimum pension benefit, and increasing the annual benefit accrual rate for appointed officials from 2% to 2.5% of final earnings for the first twenty years of credited service. Bill No. 36-89 also enhanced the benefits for participants in the Anne Arundel County Employee's Retirement Plan, which is the pension plan for all County employees other than appointed and elected officials, police, correctional officers and firefighters. Except for the increase in the minimum pension benefit for appointed and elected officials, the enhancements in the benefits under both plans were made applicable to participants who retired on or after July 1, 1989.

[*78]

   Joseph J. McCann, another appellee, filed a motion to intervene, [***3] asserting that (1) he, together with other, similarly situated beneficiaries of the Anne Arundel County Retirement Plan for Appointed and Elected Officials, possessed a material and cognizable interest in the outcome of the case; n2 and (2) his interests were substantively distinct, if not adverse to, the interests of both Schaeffer and the County. The trial court granted McCann's motion to intervene as a party defendant. In his answer, McCann also asserted laches as an affirmative defense.

n2 McCann retired in 1992, under the plan for appointed and elected officials, with his pension calculated at the increased rate under the ordinance of 2.5% of his final salary for each year served. If Schaeffer were successful in voiding the ordinance, McCann's retirement benefits would be reduced by approximately $8,175.00 per year.

   All of the parties filed motions for summary judgment. After a hearing, Judge Eugene M. Lerner granted summary judgment in favor of the County and McCann, ruling that laches barred Schaeffer's[***4] action.

   Schaeffer appealed that decision to the Court of Special Appeals. Before consideration of the case by the intermediate appellate court, we issued a writ of certiorari on our own motion to consider the following questions: (1) whether Schaeffer's claims were barred by laches; (2) whether the County complied with the notice requirements of Maryland Const. Art. XI-A, § 3; and (3) whether voiding the ordinance would violate the Contracts Clause of the U.S. Constitution. We shall answer the first question in the affirmative and affirm the judgment of the Circuit Court for Anne Arundel County.
 
II

   Schaeffer contends that the County Council failed to publish notice of the proposed legislation as mandated by Art. XI-A, § 3, applicable to charter counties such as Anne Arundel, and that such a failure renders the legislation unconstitutional and void ab initio. Art. XI-A, § 3 provides that a chartered [*79]county council must publish "the title or a summary of all laws and ordinances proposed once a week for two consecutive weeks prior to enactment followed by publication once after enactment in at least one newspaper of general circulation in the county, so that the taxpayers[***5] and citizens may have notice thereof." The County Council published the first notice in The Capital on [**753] May 8, 1989. That notice contained an error in the positioning of the bill number, which was printed on the wrong line above the title and summary of the Bill. The notice was republished in proper form on May 10, 1989, and on May 15, 1989, the final notice was published in the same paper. On the evening of May 15, 1989, the Council passed the proposed legislation, and the County Executive signed the bill into law on May 17, 1989. The enacted ordinance was advertised as required by Article XI-A, § 3 in The Capital on June 9, 1989.
 
Schaeffer argues that, because there was an error in the first notice, proper notice was given only five days prior to enactment. Even assuming that the May 8 notice was legally sufficient, he asserts that the County published notice less than fourteen days before enactment of the ordinance.
 
The County responds first that the May 8 notice was indeed effective and, second, that the County did comply with Art. XI-A, § 3, because that section requires publication a set number of times, not for a particular duration. If, however, strict compliance[***6] is not found, the County contends that it substantially complied with the purpose of Art. XI-A, § 3 and gave sufficient notice. In addition, the County asserts that Schaeffer's claims are barred by laches.

   McCann also contends that laches bars Schaeffer's action, as the complaint was filed more than four years after the enactment of the ordinance, and McCann and others relied in good faith on the benefits conferred by the ordinance. He points out that Schaeffer is not attacking the power of the County to adopt an ordinance such as that at issue here but is merely raising a defect in the enactment procedure. Pointing to numerous authorities from other jurisdictions, McCann urges [*80] us to distinguish procedural challenges for laches purposes. Further, McCann asserts that benefits have accrued to and vested in McCann and other beneficiaries under the ordinance and that, under the Contracts Clause of the U.S. Constitution, the legislation may not be voided retroactively.

   Schaeffer responds to the laches argument by asserting that it does not apply when a plaintiff disputes the constitutionality of an ordinance. In effect, he contends that this ordinance is susceptible to attack at any[***7] time, without regard to laches.

   III
 
As a threshold matter, we disagree with Schaeffer's assertion that laches does not apply here. The challenge in this case must be distinguished from a claim that the municipality had no power to enact an ordinance or that the ordinance is intrinsically void. Schaeffer contends that the ordinance is void due merely to a procedural defect in its enactment, with no substantive objection to its validity, but adopting such a position would put all ordinances at risk of procedural challenges decades after enactment. At the latest, Schaeffer had constructive knowledge of any defect in enactment procedures when the notice of enactment was published on June 9, 1989. We cannot allow plaintiffs to take a "wait and see" approach to ordinances, challenging an ordinance many years after enactment on procedural grounds. Laches remains applicable when a challenge to enactment procedures is involved with no substantive objection. See, e.g., Citizens for Responsible Gov't v. Kitsap County, 52 Wash. App. 236, 239, 758 P.2d 1009, 1011 (1988) ("an ordinance that is clearly a usurpation of power . . . can be attacked at any time . . . However, defects[***8] and irregularities in the mode of enactment of an ordinance do not pertain to the nature of the ordinance itself. . . . Challenges to such defects may be precluded by . . . laches."); Benequit v. Borough of Monmouth Beach, 125 N.J.L. 65, 68, 13 A.2d 847, 849 (1940) ("Assuming that the ordinance was not published in a qualified newspaper, such [*81] irregularity was merely procedural and the prosecutrix . . . was guilty of laches which bars her right to complain."). n3 

n3 Several jurisdictions have applied laches to defeat a taxpayer suit in cases where the only objection to the acts of the municipality was, as here, a matter of procedure. See, e.g., Price v. Sixth Dist. Agric. Ass'n, 201 Cal. 502, 258 P. 387 (1927); Smith v. Daffin, 115 Fla. 418, 155 So. 658 (1934); Edel v. Filer Township, Manistee County, 49 Mich. App. 210, 211 N.W.2d 547 (1973); Fielding v. Board of Educ. of Paterson, 76 N.J. Super. 50, 183 A.2d 767 (1962); Schulz v. State of N.Y., 193 A.D.2d 171, 606 N.Y.S.2d 916 (N.Y. App. Div. 1993). 

[***9]

   [**754] Choosing the applicable measure of impermissible delay for cases where an equitable remedy is sought is most straightforward in cases when there are concurrent legal and equitable remedies and the applicable statute of limitations for the legal remedy is equally applicable to the equitable one. See Rettaliata v. Sullivan, 208 Md. 617, 621, 119 A.2d 420, 422 (1956); Dugan v. Gittings, 3 Gill 128, 161-62 (1845).

    Schaeffer's cause of action finds its origin in Baltimore v. Gill, 31 Md. 375 (1869), where we held that a taxpayer may bring an action in equity to enjoin an illegal or ultra vires act by a municipality or other political unit which would result in the expenditure of public funds. Id. at 395. The damage sustained by the taxpayer is the potential increase in the amount of taxes to be paid by reason of the municipal acts. See Harlan v. Employers' Assoc. of Md., 162 Md. 124, 131, 159 A. 267, 270 (1932). In most cases involving an exclusively equitable remedy, we refer to the limitations period for the cause of action at law most analogous to the one in equity.

   "The authorities indicate that even when the remedy for a claimed right is only in equity, [***10] the period of limitations most nearly apposite at law will be invoked by an equity court, provided there is not present a more compelling equitable reason -- such as fraud or other inequitable conduct which would cause injustice if the bar were interposed -- why the action should not be barred."
 
Stevens v. Bennett, 234 Md. 348, 351, 199 A.2d 221, 223-24 (1964) (citations omitted). See also Hall v. Barlow Corp., 255 Md. 28, [*82] 255 A.2d 873 (1969); Desser v. Woods, 266 Md. 696, 296 A.2d 586 (1972); Bowie v. Ford, 269 Md. 111, 304 A.2d 803 (1973). Generally, if there is no action at law directly analogous to the action in equity, the three-year statute of limitations found in Maryland Code (1974, 1989 Repl. Vol., 1994 Cum. Supp.), § 5-101 of the Courts and Judicial Proceedings Article will be used as a guideline. See Washington Suburban Sanitary Comm'n v. Mitchell & Best Co., 303 Md. 544, 562, 495 A.2d 30, 39 (1985).

   We explained this principle in Washington Suburban, a case in which developers brought an action seeking declaratory and injunctive relief against the collection of a "System Expansion Offset Charge" ("SEOC") imposed by the Washington Suburban[***11] Sanitary Commission ("WSSC"). The developers contended that the WSSC lacked the authority to adopt the new charge and, in the alternative, that even if the WSSC had such authority, the charge as adopted was unreasonable and void. We held that the suit would not be barred by laches when the statute of limitations applicable to legal actions was analogized:

   "SEOC was first adopted June 13, 1979, to be effective July 1 of that year. Plaintiffs brought this suit on September 17, 1981. On analogy to the general three-year statute of limitations applicable to actions at law, laches does not apply here. See Desser v. Woods, 266 Md. 696, 704, 296 A.2d 586, 591 (1972)."
 
Id. at 562, 495 A.2d at 39.

   The WSSC had briefed the laches argument, and proposed that the analogy be drawn instead to the thirty-day limit for appealing certain actions of the WSSC to the Maryland Public Service Commission. We rejected that argument on the basis that the WSSC's authority to adopt the SEOC was not subject to the jurisdiction of the Public Service Commission, and concluded that the correct analogy was to the general statute of limitations:
 
"Where, as here, the claim under consideration properly[***12] invokes the original jurisdiction of the circuit court, the [*83] analogy for laches should not be to a time limit for initiating a special statutory administrative remedy applicable to a different theory of the case.
  
"Analogy is properly made to the three-year statute . . ."
 
Id. at 563, 495 A.2d at 39. See also Payne v. Prince George's County Dep't of Social Servs., 67 Md. App. 327, 507 A.2d 641 (1986).

   [**755] As Schaeffer's claim is not analogous to an action at law with a special statute of limitations, we shall use the general three-year statute of limitations applicable to actions at law. The circuit court found that the latest possible date of accrual for this action was June 9, 1989, the date of publication of the ordinance after enactment. Schaeffer's claim was filed more than three years after that date and the trial court ruled that laches barred that equitable action.
 
Furthermore, unlike the defense of limitations in an action seeking a legal remedy, the defense of laches to the assertion of an equitable remedy must be evaluated on a case by case basis, as laches is an inexcusable delay, without necessary reference to duration in asserting an equitable claim. [***13] See Sinclair v. Weber, 204 Md. 324, 337, 104 A.2d 561, 567 (1954); Connelly v. Connelly, 190 Md. 79, 84, 57 A.2d 276, 278 (1948); Kaliopulus v. Lumm, 155 Md. 30, 38-39, 141 A. 440, 444 (1928); Boggs v. Dundalk Realty Co., 132 Md. 476, 481, 104 A. 45, 47 (1918); Lawson v. Mullinix, 104 Md. 156, 170-71, 64 A. 938, 944 (1906); Sinclair v. Auxiliary Realty Co., 99 Md. 223, 234, 57 A. 664, 668 (1904); Hagerty v. Mann, 56 Md. 522, 525-26 (1881). Moreover, even where such impermissible delay is present under the circumstances presented, if the delay has not prejudiced the party asserting the defense, it will not bar the equitable action. Lipsitz v. Parr, 164 Md. 222, 226-27, 164 A. 743, 745 (1933); Deumuth v. Old Town Bank, 85 Md. 315, 326-27, 37 A. 266, 268-69 (1897). The instant case well illustrates the prejudice component of the laches defense.

   The ordinance in question increased the benefit accrual rate for all participants in the basic Employee's Retirement Plan [*84] and for county officials in the Retirement Plan for Appointed and Elected Officials who retired on or after July 1, 1989. Loss of the increase in the benefit accrual rate enacted by the[***14] ordinance would result in a reduction in McCann's annual pension benefit of approximately 17%.

   All participants in either pension plan who were hired, retired or who continued employment since July, 1989, in reliance on the modifications to the plan effected by the ordinance, were also prejudiced by appellant's delay in bringing his claim. We agree with the analysis of the Circuit Court:
 
"Plaintiff has slept on his rights, and during his torpor, the Intervenor and others similarly situated derived pension benefits which have accrued, become fully vested, paid to them, and which cannot now be diminished. In addition, Bill 36-89 covers many other county employees under their basic Employee Retirement Plan. The voiding of the Bill would have a catastrophic effect on hundreds of county employees who have relied on it while the Plaintiff said nothing. He is truly a 'Johnny (Robert) Come Lately,' and therefore, again, Plaintiff is not entitled to relief."
 
This case exemplifies exactly the type of potential prejudice that laches is designed to prevent. In such a situation, plaintiff's claim may be barred even prior to the expiration of the limitations period, because of the extreme [***15]prejudice to the beneficiaries of the retirement plans if the claim were permitted to proceed.

   IV

   Although our decision today rests upon laches, we make some observations with regard to the proper construction of the notice requirement contained in Md. Const. Art. XI-A, § 3. Art. XI-A, § 2 vests the law-making power of a charter county in its county council, and imposes certain conditions on the exercise of that power. One of these conditions is found in Art. XI-A, § 3:
 
[*85] "The title or a summary of all laws and ordinances proposed shall be published once a week for two successive weeks prior to enactment followed by publication once after enactment in at least one newspaper of general circulation in the county, so that the taxpayers and citizens may have notice thereof."
 
There has been much debate in this case concerning the proper construction of the words "once a week for two successive weeks prior to enactment." Schaeffer asserts that those words mandate two publications during the fourteen-day period prior to enactment, with the first being no later than fourteen [**756] days prior to enactment. Appellees contend that those words require publication on two separate days, once[***16] in each of two successive calendar weeks, with the final notice published any time prior to the vote by the County Council approving the ordinance. Appellees' construction would permit both notices to be published within the two days prior to enactment (assuming first publication on a Saturday, second publication on Monday, and enactment later on Monday), while Appellant's construction requires the passage of fourteen days after the first publication prior to enactment.

   We have construed language identical to that at issue in the instant case contained in statutes mandating public notice of certain actions. In Koch v. Mack Motor Truck Corp., 201 Md. 562, 95 A.2d 105 (1953), we construed a Baltimore City notice requirement that "the time, place and terms of said sale [of abandoned vehicles]. . . shall be inserted in one or more daily newspapers published in Baltimore City at least once each week for two successive weeks prior to said sale." The advertisement in Koch appeared in a daily newspaper on October 28, 1951, and on November 5, 1951. The vehicle at issue was sold on November 5, 1951, only eight days after the first publication. In finding such notice inadequate, [***17] we relied on the reasoning of the 8th Circuit in Wilson v. Northwestern Mutual Life Ins. Co., 65 F. 38, 38-39 (1894):
 
"'A week is seven days. The first publication of this notice was November 10th; its publication for one week, or seven days, could not have been, and was not, complete until 12 [*86] o'clock p.m., or midnight, November 16th; . . . its publication for four weeks was not complete until 12 o'clock p.m., or midnight, of December 7, 1893, but the sale was made at 2 o'clock in the afternoon of that day. . . . Our conclusion is that the publication of a notice of sale once a week for only 27 days before the day of sale is not a 'previous publication' of such a notice 'once a week for at least four weeks prior to such sale,' * * * .' Black's Law Dictionary defines prior as 'the former; earlier; preceding.'"
 
Koch, 201 Md. at 569, 95 A.2d at 108-09. We also quoted Merrill on Notice, § 665 in determining the proper interpretation of "publication for two successive weeks:"

   "'Questions arise concerning specifications that publication shall be 'for' a certain number of weeks before an event. A week in this sense means seven days and the prescription can be [***18]  satisfied only by publication starting the specified multiple of seven days prior to the effective date. However, if the several publications are to be once a week for a specified number of weeks, the spacing need not be exactly seven days apart, provided there is one appearance in each period of seven days and the proper number of hebdomads intervenes between the initial publication and the effective date.'"
 
Koch, 201 Md. at 569-70, 95 A.2d at 109 (emphasis added) (citations omitted). See also Bacon v. Kennedy, 56 Mich. 329, 22 N.W. 824 (1885) ("The only question in this case is whether a statutory foreclosure is valid where the sale was made on a notice which, although published twelve times in separate weeks, provided for selling on a day less than twelve weeks from the first publication. The statute does not say that notice shall merely be published twelve times, once a week, but once a week 'for twelve successive weeks.' The object of this was manifestly to give that full interval between the first notice and the sale.")

   In Winter v. O'Neill, 155 Md. 624, 142 A. 263 (1928), we addressed whether the day on which action was taken is to be included in the[***19] computation of the required notice period. In [*87] that case, publication had occurred on November 16, 1915, and the day of sale was December 14, 1915. The statute in question required that the tax collector give notice of the tax sale by publication "once a week for four successive weeks," and we set forth the method of calculating the proper time:
 
"In the computation of time, where there is no language indicating that the notice shall be so much clear time, or at least so many days, weeks or months, the rule is not to include or exclude both the day of first publication and the day of sale, but to include one and exclude the other. Applying [**757] this general rule to the case before us, we find that, if the day of the first publication or the day of sale either is excluded, and the other included, there will remain twenty-eight days' or four weeks' notice, which is all that the statute requires."
 
Id. at 635, 142 A. at 268 (emphasis added). See also Walsh, Trustee v. Boyle, 30 Md. 262, 267 (1869) ("where any particular number of days not expressed to be clear days, is prescribed, the rule in regard to the computation of time, is not to exclude both the day on which [***20]  the notice is served, and the day on which the act is to be performed, but to exclude the one and include the other."). Although it is not clear from these cases which of the two terminal days is to be excluded, it is clear that both days are not to be included.

   In 1972, the scope of Art. XI-A, § 3 was broadened to require pre-enactment notice in addition to post-enactment notice. The Legislature, in proposing that amendment to our constitution, is presumed to have had knowledge of our cases that had been decided prior to that time, Harris v. State, 331 Md. 137, 626 A.2d 946 (1993), and those cases clearly stated that fourteen days' notice was necessary under the language used to describe the required notice. In addition, the Legislature had enacted Md. Code (1957), Art. 94, § 2 in 1943, n4 which [*88]provided for the computation of time in notice statutes and codified our approach in Winter v. O'Neill, supra. Although the time statute is not directly applicable in this case, it does evidence the Legislature's knowledge of our decisions regarding the proper method of calculating notice periods.

n4 Md. Code (1957), Art. 94, § 2 provides:

   "In computing any period of time prescribed or allowed by any applicable statute, the day of the act, event, or default, after which the designated period of time begins to run is not to be included. The last day of the period so computed is to be included unless: (1) It is a Sunday or a legal holiday, in which event the period runs until the end of the next day, which is neither a Sunday or a holiday; or, (2) the act to be done is the filing of some paper in court and the office of the clerk of said court on said last day of the period is not open, or is closed for a part of a day, in which event, the period runs until the end of the next day which is neither a Sunday, Saturday, a legal holiday, or a day on which the said office is not open the entire day during ordinary business hours. When the period of time allowed is more than seven days, intermediate Sundays and holidays shall be considered as other days; but if the period of time allowed is seven days or less, intermediate Sundays and holidays shall not be counted in computing the period of time."

[***21]

   Since we affirm the decision of the Circuit Court for Anne Arundel County because Appellant was guilty of laches in pursuing his claim, we need not address the federal constitutional issue raised by McCann.
 
JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT. 

MARYLAND AGGREGATES ASSOCIATION, INC. et al. v. STATE OFMARYLAND 
No. 40, September Term, 1994
 
COURT OF APPEALS OF MARYLAND
 
337 Md. 658; 655 A.2d 886; 1995 Md. LEXIS 37
 
   March  22, 1995, Filed

   PRIOR HISTORY: [***1] Appeal from the Circuit Court of  Anne Arundel  County pursuant to certiorari to the Court of Special Appeals. James C. Cawood, Jr. JUDGE.

CORE TERMS:  dewatering, surface, water, zone, quarry, terrain, mining, karst, equal protection, water supply, classification, rational basis, contested case, administrative agency, property damage, judicial power, jury trial, landowner, sinkhole, judicial review, appropriation, pump, pit, Fourteenth Amendment, administrative agencies, regulation, injunction, pumping, adjudicatory, license

COUNSEL: ARGUED BY Richard A. Reid (Royston, Mueller, McLean & Reid, on brief, of Towson, MD.; William A. Franch, Franch & Jarashow, P.A., of Annapolis, MD. on brief) FOR PETITIONER.
 
ARGUED BY Sharon B. Benzil/Assistant Attorney General, (J. Joseph Curran, Jr., Attorney General on brief; Michael A. Millemann, of Baltimore, MD on brief) FOR RESPONDENT.

JUDGES: ARGUED BEFORE Murphy, C.J.; Eldridge, Rodowsky, Chasanow, Karwacki, Bell, and Raker, JJ.

OPINIONBY: ELDRIDGE

OPINION: [*662]
 
[**888] Opinion by Eldridge, J.
 
Filed: March 22, 1995
 
This case presents several constitutional challenges to Maryland Code (1973, 1989 Repl. Vol., 1994 Cum. Supp.), §§ 7-6A-10.1 and 7-6A-10.2 of the Natural Resources Article, which [*663] relate to the appropriation of water in connection with certain surface mining operations.

   I.

   Any individual, business, or governmental entity in Maryland "which may appropriate or use any waters of the State, whether surface water or groundwater," must first obtain a water appropriation permit from the Department of Natural Resources. Code (1973, 1990 Repl. Vol.), § 8-802 of the Natural [***2]Resources Article. n1 A surface mine must have a water appropriation permit to pump away water that would otherwise accumulate in the mine. The pumping process is known [**889] as "dewatering." n2 Surface mine dewatering removes groundwater, rainfall and other surface water runoff from the surface mine pit. If the rock to be mined lies beneath the water table, the mine operator must pump away a sufficient quantity of water to lower the water table around the pit. 

n1 An exception is made for certain domestic and small scale agricultural uses. Maryland Code (1973, 1990 Repl. Vol.), § 8-802(b) of the Natural Resources Article.

n2 "'Dewater' or 'dewatering' means to pump water out of a pit." Code (1974, 1989 Repl. Vol., 1994 Cum. Supp.), § 7-6A-10.2(a)(2) of the Natural Resources Article.

   Several Maryland counties include areas of karst terrain. In karst terrain, pockets of limestone and other carbonate rocks are slowly dissolved by water flowing or percolating underground, leaving behind underground cavities and channels. [***3] n3 Increasing the rate of water flow, for example by pumping, accelerates the formation of underground channels and of sinkholes.

n3 Karst terrain is defined in the Act as follows ( § 7-6A-10.2(a)(3)):
 
"'Karst terrain' means an irregular topography that is . . . caused by a solution of limestone and other carbonate rock; and . . . characterized by closed depressions, sinkholes, caverns, solution cavities, and underground channels that, partially or completely, may capture surface streams."

[*664]

   The legislation challenged in this case, §§ 7-6A-10.1 and 7-6A-10.2 of the Natural Resources Article, is intended to protect landowners in karst terrain from the effects of surface mine dewatering. During the legislative process, the General Assembly received testimony from over fifty individuals, both lay and expert, and considered a number of technical reports concerning the effects of surface mine dewatering in karst terrain. Groups opposed to the proposed legislation, principally enterprises involved in surface mining, and groups [***4]pressing for its adoption, principally individual property owners and community associations from regions close to quarries, each engaged in vigorous lobbying. Ultimately, the General Assembly enacted the legislation regulating surface mine dewatering in karst terrain.

   The Act contains the following legislative findings ( § 7-6A-10.1(a)):
 
"In certain regions of the State dewatering of surface mines located in karst terrain may significantly interfere with water supply wells and may cause in some instances sudden subsidence of land, known as sinkholes. Dewatering in karst terrain may result in property damage to landowners in a definable zone of dewatering influence around a surface mine."
 
The Act protects "affected property owners in Baltimore, Carroll, Frederick, and Washington Counties where karst terrain is found," by establishing "zones of dewatering influence around surface mines . . . ." § 7-6A-10.1(b). The Department of Natural Resources must establish the zone of dewatering influence when it issues the water appropriation permit for dewatering to the operator of a surface mine affected by the Act. § 7-6A-10.2(b)(1). The Department must scientifically determine the area[***5] affected by the mine's pumping activity, based on "local topography, watersheds, aquifer limits, and other hydrogeologic factors . . . ." § 7-6A-10.2(b)(2).

   The statute contemplates that the zone of dewatering influence may extend beyond the land owned by the mining [*665] operation itself. Accordingly, subsection (c)(1) of § 7-6A-10.2 provides that, within the zone of dewatering influence, mine operators must "replace, at no expense to the owner of real property that is affected by the surface mine dewatering, a water supply that fails as a result of declining ground water levels. . . ." An exception is made where the failure of the water supply is not caused by the surface mine operation ( § 7-6A-10.2(f)):
 
"The Department may not require a [mine operator] to replace water supplies, as provided in this section, if the [mine operator] demonstrates to the Department by clear and convincing evidence that the proximate cause of the loss of water supply is not the result of pit dewatering."
 
The Act also establishes a scheme to compensate landowners for sinkhole damage that occurs within the zone of dewatering influence. Subsection (c)(2) of § 7-6A-10.2 provides as follows:
 
"Upon a determination[***6] by the Department of proximate cause after the [mine operator] [**890] has received proper notice and an opportunity to respond and provide information, [the mine operator shall] pay monetary compensation to the affected property owner or repair any property damage caused as a result of the sudden subsidence of the surface of the land."
 
Furthermore, the Act directs the Department to create, by regulations, an administrative process for resolving claims brought under the Act, § 7-6A-10.2(h), and requires the Department to "provide opportunity for a contested case hearing," § 7-6A-10.2(g).

   II.

   This litzgation was commenced by Maryland Aggregates Association, Inc., an organization that represents the interests of the surface mining industry, and by the individual operators of hard rock quarries located in karst terrain in Baltimore, [*666] Carroll, Frederick and Washington Counties. n4 Maryland Aggregates filed suit in the Circuit Court for Anne Arundel County on July 1, 1991, the day after the Act took effect, naming as defendants the State of Maryland, the Governor, the Attorney General, and the Secretary of the Department of Natural Resources. n5 Maryland Aggregates sought a declaratory judgment[***7] holding the Act unconstitutional on a number of grounds and an injunction against the enforcement and implementation of the Act.

n4 For convenience, we shall in this opinion refer to all of the plaintiffs collectively as "Maryland Aggregates."

n5 Four individual owners of property near quarry sites were later permitted to intervene as defendants. These individuals were represented by the Clinical Law Office at the University of Maryland School of Law.

   In the circuit court, Maryland Aggregates contended that the Act violated numerous provisions of the Constitution of the United States and of the Constitution of Maryland. It contended that the Act violated its right to "substantive due process" because there was no rational basis for the legislation. It argued that the Act violated equal protection principles by making an unreasonable distinction between quarry operators and other large water users. Maryland Aggregates also claimed that the statute denied equal protection of the laws to the residents of the nineteen[***8] Maryland counties unaffected by the Act. The plaintiffs argued that the Act interfered with mine operators' constitutional rights to jury trial and deprived them of their property without just compensation. They contended that the statutory procedures for establishing zones of dewatering influence and for resolving claims under the Act were constitutionally deficient. Finally, Maryland Aggregates argued that the Act impermissibly granted judicial powers to an administrative agency in violation of the separation of powers requirement set forth in Article 8 of the Maryland Declaration of Rights.

   The State responded to Maryland Aggregates' constitutional arguments on their merits, and also contended that the State [*667] of Maryland, the Governor and the Attorney General were not proper parties to the litigation.

   On March 9, 1992, the Circuit Court for Anne Arundel County granted Maryland Aggregates' motion for an interlocutory injunction against the enforcement of the Act. On March 7, 1994, however, the circuit court granted summary judgment in favor of the defendants, and filed a declaratory judgment rejecting all of Maryland Aggregates' constitutional contentions. The circuit court also [***9]agreed that the Secretary of the Department of Natural Resources was the only proper defendant. n6 Maryland Aggregates appealed to the Court of Special Appeals and, before any proceedings in the intermediate appellate court, petitioned this Court for a writ of certiorari, raising the same constitutional objections to the Act that it had pressed at trial. We granted Maryland Aggregates' petition. 335 Md. 341, 643 A.2d 441 (1994).

n6 Maryland Aggregates concedes that "the lower court's ruling on this point does not affect the outcome of this case. . . ." (Maryland Aggregates' brief at 45 n. 7). Accordingly, we do not decide in the present case whether the defendants other than the Secretary of the Department of Natural Resources were proper parties to the litigation.

   [**891] Meanwhile, in light of the circuit court's declaratory judgment in favor of the State, the Department of Natural Resources had begun to enforce the Act. Aggrieved by the Department's activity, Maryland Aggregates [***10] filed in the circuit court a further motion for an injunction against enforcement of the Act pending appeal. On August 16, 1994, observing that the case had been set for argument in this Court in early November 1994, the circuit court granted Maryland Aggregates' motion and enjoined enforcement of the Act pending appeal. This Court deferred action on the State's subsequent motion to dissolve, suspend, modify or stay the injunction until oral argument took place on November 6, 1994. On November 7, 1994, this Court entered an order affirming the judgment of the Circuit Court for Anne Arundel County and vacating the injunction. We now set forth the reasons for our earlier order. [*668]

   III.

   Maryland Aggregates first contends that the Act violates the Due Process Clause of the Fourteenth Amendment to the federal constitution and Article 24 of the Maryland Declaration of Rights because, according to Maryland Aggregates, there was no rational basis for its enactment. n7 The General Assembly found as a fact that "dewatering of surface mines located in karst terrain may significantly interfere with water supply wells and may cause in some instances sudden subsidence of land, known as sinkholes." [***11] § 7-6A-10.1(a) of the Natural Resources Article. Nonetheless, Maryland Aggregates maintains that it should be given an opportunity to prove at trial that quarries cause neither water supply failures nor sinkholes, and that "there was no evil at hand for correction" by the Legislature. (Maryland Aggregates' brief at 11).

n7 Article 24 of the Maryland Declaration of Rights provides as follows:
 
"That no man ought to be taken or imprisoned or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or, in any manner, destroyed, or deprived of his life, liberty, or property, but by the judgment of his peers, or by the Law of the land."
 
The Fourteenth Amendment to the United States Constitution provides, in part, as follows:
 
"nor shall any State deprive any person of life, liberty, or property, without due process of law . . . ."

   Maryland Aggregates characterizes its disagreement with the legislative findings as a dispute of material fact which should have precluded the entry of summary judgment. The[***12] circuit court, however, held that "the Defendants are not required to prove the wisdom of the statute as a matter of law . . . but only that there is a rational basis for the statute as a matter of law." Since the court held that "the Maryland General Assembly had a substantial rational basis to pass the Act," it granted summary judgment for the State on the so-called substantive due process contention.

   This Court in Bowie Inn v. City of Bowie, 274 Md. 230, 236, 335 A.2d 679, 683 (1975), in rejecting a similar "substantive due process" challenge to economic regulatory legislation, emphasized that "the wisdom or expediency of a law [*669]adopted" by a legislative body "is not subject to judicial review, and the law will not be held void if there are any considerations relating to the public welfare by which it can be supported." Accord: Dawson v. State, 329 Md. 275, 283-284, 619 A.2d 111, 115 (1993); Ogrinz v. James, 309 Md. 381, 394-395, 524 A.2d 77, 84 (1987); Montgomery County v. Fields Road, 282 Md. 575, 583-585, 386 A.2d 344, 348-349 (1978);[***13] Edgewood Nursing Home v. Maxwell, 282 Md. 422, 426-427, 384 A.2d 748, 751 (1978); Governor v. Exxon Corp., 279 Md. 410, 423-429, 370 A.2d 1102, 1110-1113 (1977), aff'd, 437 U.S. 117, 98 S. Ct. 2207, 57 L. Ed. 2d 91 (1978); Westchester West No. 2 v. Mont. Co., 276 Md. 448, 454-455, 348 A.2d 856, 860 (1975), and cases there cited. See also General Motors Corp. v. Romein, 503 U.S. 181, 112 S. Ct. 1105, 1112, 117 L. Ed. 2d 328, 340 (1992); Ferguson v. Skrupa, 372 U.S. 726, 83 S. Ct. 1028, 10 L. Ed. 2d 93 (1963); Williamson v. Lee Optical Co., 348 U.S. 483, 75 S. Ct. 461, 99 L.Ed. 563 (1955).

   In Bowie Inn v. City of Bowie, supra, 274 Md. 230, 335 A.2d 679, as in the present case, industry representatives whose lobbying efforts had failed to prevent the enactment of [**892] legislation[***14] adverse to their interests, later challenged the legislation in court. Concluding that the plaintiffs in Bowie Inn were, "in effect, asking us to substitute our judgment concerning the wisdom of [the challenged ordinance] for that of the City Council of Bowie," this Court sustained the ordinance against the due process challenge. 274 Md. at 236, 335 A.2d at 683.

   More recently the Supreme Court, in rejecting a similar due process challenge to a Michigan statute, stated (General Motors Corp. v. Romein, supra, 112 S. Ct. at 1112, 117 L. Ed. 2d at 340):
 
"Having now lost the battle in the Michigan Legislature, petitioners wished to continue the war in court. Losing a political skirmish, however, in itself creates no ground for constitutional relief."

   Likewise, having failed to convince the General Assembly of the merits of its position, Maryland Aggregates seeks to present its theories in court. Nevertheless, "'courts do not [*670] substitute their social and economic beliefs for the judgment of legislative bodies, who are elected to pass laws.'" Governor v. Exxon Corp., supra, 279 Md. at 425, 370 A.2d at 111,[***15] quoting Ferguson v. Skrupa, supra, 372 U.S. at 730, 83 S. Ct. at 1031, 10 L. Ed. 2d at 97. In particular, factual determinations made by a legislative body are not ordinarily subject to review in the courts. Even in the absence of legislative findings, "the legislature is presumed to have acted within constitutional limits so that if any state of facts reasonably can be conceived that would sustain the constitutionality of the statute, the existence of that state of facts as a basis for the passage of the law must be assumed." Edgewood Nursing Home v. Maxwell, supra, 282 Md. at 427, 384 A.2d at 751.

   As Judge Cawood for the circuit court observed in the present case, the General Assembly heard testimony from geological experts, from representatives of the mining industry, and from concerned citizens and environmental groups. After briefly summarizing the conflicting testimony, Judge Cawood pointed out as follows:

   "Needless to say, we do not decide whether Plaintiffs' or Defendants' experts are more likely to be correct. The proper forum for that is the Legislature. In passing almost[***16] any law, one can argue whether it has a rational basis, and which experts were really correct or really told the truth."
 
The circuit court properly deferred to the General Assembly's legislative findings. In Bowie Inn v. City of Bowie, supra, this Court explained why judicial review of legislative decision making must be narrowly circumscribed. Quoting from Justice Frankfurter's concurring opinion in American Federation of Labor v. American Sash & Door Co., 335 U.S. 538, 553, 69 S. Ct. 258, 265, 93 L.Ed. 222, 230-231 (1949), the Court in Bowie Inn stated as follows (274 Md. at 238, 335 A.2d at 684):

   "'Even where the social undesirability of a law may be convincingly urged, invalidation of the law by a court debilitates popular democratic government. Most laws dealing with economic and social problems are matters of trial and error. That which before trial appears to be demonstrably [*671] bad may belie prophesy in actual operation. It may not prove good, but it may prove innocuous. But even if a law is found wanting on trial, it is better[***17] that its defects should be demonstrated and removed than that the law should be aborted by judicial fiat. Such an assertion of judicial power deflects responsibility from those on whom in a democratic society it ultimately rests -- the people.'"

 
See also Governor v. Exxon Corp., supra, 279 Md. at 428-429, 370 A.2d at 1113.

   In light of these principles, Maryland Aggregates' disagreement with the factual findings of the General Assembly does not create an issue of fact which is material to the Act's validity under the due process clauses of the federal and state constitutions. As the circuit court pointed out, the question is not whether the General Assembly was correct; it is whether it was entitled to reach the conclusions embodied in the statute. The surface mine dewatering act establishes a compensation scheme for affected landowners that obviously bears a rational relationship to a problem that the General Assembly identified for redress. Under these circumstances, there is simply no basis upon which [**893]a court could conclude that the Act was beyond the authority of the General Assembly. The circuit court properly granted summary[***18] judgment in favor of the State with respect to Maryland Aggregates' substantive due process argument.

   IV.

   Maryland Aggregates next contends that the Act employs classifications that violate the Equal Protection Clause of the Fourteenth Amendment and the equal protection component of Article 24 of the Maryland Declaration of Rights. n8 In particular, Maryland Aggregates complains that [*672] "quarries have been unfairly singled out" from other large consumers of groundwater in a manner that violates equal protection principles. n9 

n8 Section I of the Fourteenth Amendment to the United States Constitution includes the following guarantee: "No State shall . . . deny to any person within its jurisdiction the equal protection of the laws." While Article 24 of the Maryland Declaration of Rights does not contain an express equal protection clause, it nonetheless embodies the concept of equal protection. See Verzi v. Baltimore County, 333 Md. 411, 417, 635 A.2d 967, 969-970 (1994); Kirsch v. Prince George's County, 331 Md. 89, 96, 626 A.2d 372, 375, cert. denied, 114 S. Ct. 600, 126 L. Ed. 2d 565 (1993); Murphy v. Edmonds, 325 Md. 342, 353-354, 601 A.2d 102, 107 (1992), and cases there cited. Furthermore, although the federal and state guarantees of equal protection are "obviously independent and capable of divergent application," they are sufficiently similar that Supreme Court decisions applying the federal clause provide persuasive authority for this Court's application of Article 24. Murphy v. Edmonds, supra, 325 Md. at 354-355, 601 A.2d at 108, 

[***19] 

n9 Maryland Aggregates also suggests that the Act violates equal protection principles because it affects only four Maryland counties. It is clear from our cases, however, that "[a] statute . . . is not invalid merely because it affects counties unequally . . . . Equal protection principles do not require the State to attack all of the various aspects of a problem at once; the government may legislate to remedy one phase of a problem and leave other phases to be resolved later." Department of Transportation v. Armacost, 299 Md. 392, 408-409, 474 A.2d 191, 199 (1984). See also McGowan v. Maryland, 366 U.S. 420, 81 S. Ct. 1101, 6 L. Ed. 2d 393 (1961); Supermarkets Gen. Corp. v. State, 286 Md. 611, 409 A.2d 250 (1979), appeal dismissed, 449 U.S. 801, 101 S. Ct. 45, 66 L. Ed. 2d 5 (1980); Washabaugh v. Washabaugh, 285 Md. 393, 404 A.2d 1027 (1979).

   While this Court has invalidated territorial classifications on equal protection grounds, it has generally done so where the legislative classifications restricted access to economic opportunities, or imposed economic burdens, in a manner tending to favor residents of one county over residents of another. See generally Verzi v. Baltimore County, supra, 333 Md. 411, 635 A.2d 967, and cases there cited; Bruce v. Dir., Chesapeake Bay Aff., 261 Md. 585, 276 A.2d 200 (1971); Md. Coal Etc. Co. v. Bureau of Mines, 193 Md. 627, 69 A.2d 471 (1949); Dasch v. Jackson, 170 Md. 251, 183 A. 534 (1936); Havre de Grace v. Johnson, 143 Md. 601, 123 A. 65 (1923). The present case does not involve such a classification, and Maryland Aggregates' equal protection challenge to the limited territorial scope of the Act is without merit.

[***20]

   "When social or economic legislation is at issue, the Equal Protection Clause allows the States wide latitude . . . and the Constitution presumes that even improvident decisions will eventually be rectified by the democratic processes." Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 440, 105 S. Ct. 3249, 3254, 87 L. Ed. 2d 313, 320 (1985). Thus, classifications drawn by economic regulatory legislation are [*673] ordinarily permissible under equal protection principles if they bear a rational relationship to a legitimate state interest. n10 The Supreme Court recently explained the scope of rational basis review under the Equal Protection Clause in F.C.C. v. Beach Communications, Inc., 113 S. Ct. 2096, 2101, 124 L. Ed. 2d 211, 221 (1993), as follows:

n10 Maryland Aggregates argues that the Act should be subjected to a heightened standard of review because it implicates the "very important and valuable right," under common law principles, of a landowner to use percolating water "without fear of liability for the consequences thereof upon their neighbors." (Maryland Aggregates' brief at 16). For the reasons fully set forth in Murphy v. Edmonds, supra, 325 Md. at 362-364, 601 A.2d at 112, there is no merit to Maryland Aggregates' contention that legislation affecting a common law right should be subject to heightened scrutiny.

[***21]  
"Equal protection is not a license for courts to judge the wisdom, fairness, or logic of legislative choices. In areas of social and economic policy, a statutory classification that neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld [**894] against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification. . . . This standard of review is a paradigm of judicial restraint."

 
See also Nordlinger v. Hahn, 505 U.S. 1, 112 S. Ct. 2326, 120 L. Ed. 2d 1 (1992); Gregory v. Ashcroft, 501 U.S. 452, 111 S. Ct. 2395, 115 L. Ed. 2d 410 (1991).

   While this Court has not hesitated to strike down discriminatory economic regulation that lacked any reasonable justification, e.g., Verzi v. Baltimore County, 333 Md. 411, 635 A.2d 967 (1994), and Kirsch v. Prince George's County, 331 Md. 89, 626 A.2d 372 (1993), we nevertheless accord to the decisions of legislative bodies a strong presumption of[***22] constitutionality. In Murphy v. Edmonds, 325 Md. 342, 367, 601 A.2d 102, 114 (1992), we quoted the summary of rational basis review set forth in Whiting-Turner Contract. Co. v. Coupard, 304 Md. 340, 352, 499 A.2d 178, 185 (1985), which stated that a statute 
 
[*674] "can be invalidated only if the classification is without any reasonable basis and is purely arbitrary. Further, a classification having some reasonable basis need not be made with mathematical nicety and may result in some inequality. If any state of facts reasonably can be conceived that would sustain the classification, the existence of that state of facts at the time the law was enacted must be assumed."

 
See also Briscoe v. P.G. Health Dep't, 323 Md. 439, 448-449, 593 A.2d 1109, 1113-1114 (1991); Hargrove v. Board of Trustees, 310 Md. 406, 423, 529 A.2d 1372, 1380 (1987), cert. denied, 484 U.S. 1027, 108 S. Ct. 753, 98 L. Ed. 2d 766 (1988); Broadwater v. State, 306 Md. 597, 607, 510 A.2d 583, 588 (1986); [***23] State v. Wyand, 304 Md. 721, 726-727, 501 A.2d 43, 46 (1985), cert. denied, 475 U.S. 1095, 106 S. Ct. 1492, 89 L. Ed. 2d 893 (1986); Department of Transportation v. Armacost, 299 Md. 392, 409, 474 A.2d 191, 199 (1984); State v. Good Samaritan Hospital, 299 Md. 310, 328, 473 A.2d 892, 901, appeal dismissed, 469 U.S. 802, 105 S. Ct. 56, 83 L. Ed. 2d 7 (1984).

   According to Maryland Aggregates, the Act deprives the operators of surface mines of the equal protection of the laws because it fails to regulate other large appropriators of water. In light of the foregoing legal principles, it is apparent that this constitutional challenge to the Act lacks merit. The legislative distinction between quarries and other large water users is not an irrational one. The General Assembly received evidence that quarries have certain unique features with respect to water use. Quarries pump large amounts of water at a constant pace. Quarries cannot interrupt[***24] their pumping if emergency water conditions arise, since the pit might flood. Moreover, since a quarry must pump water where it wishes to extract rock, a quarry cannot move its pumping site if its appropriation of groundwater begins to damage the surrounding area.

   Furthermore, even if surface mines were not distinguishable from other water users on the basis of such physical facts, the Legislature could have limited the statute to surface mines for other reasons. The General Assembly might have concluded, for example, that surface mines constituted a discrete and [*675] manageable group around which to develop and test an effective compensation scheme, or that a mining operation would be more likely than another water user to have relevant hydrogeological data at hand. It is not necessary to identify the reasons that actually prompted the General Assembly to legislate as it did. Plainly, the decision to regulate the effects of surface mine dewatering can be justified on a number of grounds. The Act does not violate constitutional guarantees of equal protection, and the circuit court correctly granted summary judgment in favor of the State with regard to Maryland Aggregates' equal protection[***25] contentions.

   V.

   Maryland Aggregates next argues that the Act violates the constitutional principle of separation of powers. n11 The statute [**895] requires a mine operator to replace failed water supplies within the zone of dewatering influence, unless the operator can demonstrate to the Department of Natural Resources that pit dewatering did not cause the water supply failure. § 7-6A-10.2 (c)(1) and (f) of the Natural Resources Article. Furthermore, mine operators must compensate property owners for sinkhole damage within the zone of dewatering influence if the Department determines that the damage was caused by surface mine dewatering. § 7-6A-10.2 (c)(2) of the Natural Resources Article. Maryland Aggregates objects to this method of determining its liability under the Act, arguing that "the Legislature, in authorizing the Department of Natural Resources to sit as the sole fact finder and judge in a dispute between neighboring property owner and quarry operator, has displaced the judicial branch of government in violation of Article 8." (Maryland Aggregates' brief at 26). The circuit court rejected this argument, observing, inter alia, that "the right of the Legislature to delegate [***26] powers to [*676] administrative agencies has been recognized in this State for over 125 years."

n11 Article 8 of the Maryland Declaration of Rights provides as follows:

   "That the Legislative, Executive and Judicial powers of Government ought to be forever separate and distinct from each other; and no person exercising the functions of one of said Departments shall assume or discharge the duties of any other."

   It is true, as Maryland Aggregates suggests, that "any attempt to authorize an administrative agency to perform what is deemed a purely judicial function or power, would violate the separation of powers principle." Shell Oil Co. v. Supervisor, 276 Md. 36, 47, 343 A.2d 521, 527 (1975). This is so because the judicial power in Maryland is vested entirely and exclusively in the courts enumerated in Art. IV, § 1, of the Maryland Constitution. n12 See generally Shell Oil Co. v. Supervisor, supra, 276 Md. at 44-47, 343 A.2d at 526-527, [***27]and cases there cited. Nevertheless, Maryland Aggregates' Article 8 challenge to the Act lacks merit. It is clear from our cases that the power vested in the Department of Natural Resources to determine, in the first instance, factual issues relating to compensation under the Act is not judicial power but quasi-judicial power which may properly be exercised by the Department.

n12 Art. IV, § 1, provides, in pertinent part, as follows:

   "The Judicial power of this State is vested in a Court of Appeals, such intermediate courts of appeal as the General Assembly may create by law, Circuit Courts, Orphans' Courts, and a District Court."

   This Court has long recognized that the tasks of making factual determinations and resolving disputes are not reserved exclusively to the judicial branch of government. In Shell Oil Co. v. Supervisor, supra, 276 Md. at 45, 353 A.2d at 526, we quoted the following language from this Court's opinion in Solvuca v. Ryan & Reilly Co., 131 Md. 265, 282, 101 A. 710, 715 (1917):
[***28]  
"What is a judicial function does not depend solely on the mental operation by which it is performed or the importance of the Act. In solving this question, due regard must be had to the organic law of the state and the division of powers of government. In the discharge of executive and legislative duties, the exercise of discretion and judgment of the highest order is necessary, and matters of the greatest weight and importance are dealt with. It is not enough to [*677] make a function judicial that it requires discretion, deliberation, thought, and judgment."
 
Later, in Attorney General v. Johnson, 282 Md. 274, 286, 385 A.2d 57, 64, appeal dismissed, 439 U.S. 805, 99 S. Ct. 60, 58 L. Ed. 2d 97 (1978), the Court stated as follows:
 
"As we have already dismissed the notion that judicial power in the constitutional sense is necessarily exercised whenever facts are determined and legal principles are applied to the facts found, we must ascertain what qualities imbue such determinations with judicial power. While we have not, until today, explicitly stated the proposition, we agree with[***29] those courts which have said that the essence of judicial power is the final authority to render and enforce a judgment, . . . and we think that conclusion is implicit from our own case law."

   In modern times, the complexity of governmental obligations has resulted in increasing reliance upon administrative agencies for the performance of both rulemaking and adjudicatory functions. This Court has recognized the delegation to administrative agencies [**896] of both legislative and adjudicatory power as legitimate, "as the separation of powers concept may constitutionally encompass a sensible degree of elasticity and should not be applied with doctrinaire rigor."  Dep't of Nat. Res. v. Linchester, 274 Md. 211, 220, 334 A.2d 514, 521 (1975). See also Christ v. Department, 335 Md. 427, 441, 644 A.2d 34, 40 (1994). Indeed, as Chief Judge Murphy explained for the Court in County Council v. Investors Funding, 270 Md. 403, 426-443, 312 A.2d 225, 238-247 (1973), the principal focus of constitutional inquiry into the exercise of powers by administrative agencies is[***30] the limitation of agency authority, rather than the nature of the authority exercised. Chief Judge Murphy explained as follows (270 Md. at 436, 312 A.2d at 243):
 
"The constitutional doctrine of separation of powers . . . does not itself inhibit the delegation to an administrative agency of a blend of executive or legislative powers with powers judicial in nature; the determining factor is not so much the specific powers granted to the administrative [*678] agency, but rather the relationship of the courts to the exercise of that power."

   Consequently, an agency in the executive branch may ordinarily perform adjudicatory functions in harmony with the principle of separation of powers provided that there is an opportunity for judicial review of the agency's final determination. See, e.g., Attorney General v. Johnson, supra, 282 Md. at 286-288, 385 A.2d at 64-65; County Council v. Investors Funding, supra, 270 Md. at 432-437, 312 A.2d at 241-243; Insurance Comm'r v. Nat'l Bureau, 248 Md. 292, 299-301, 236 A.2d 282, 286-287 (1967);[***31] Burke v. Fidelity Trust Co., 202 Md. 178, 187-189, 96 A.2d 254, 260 (1953); Johnstown Coal & Coke Co. v. Dishong, 198 Md. 467, 473-474, 84 A.2d 847, 850 (1951); Heaps v. Cobb, 185 Md. 372, 379, 45 A.2d 73, 76 (1945). Moreover, Maryland's courts have inherent power to correct agency adjudicatory determinations that are unsupported by substantial evidence, arbitrary, capricious or illegal. See, e.g., Criminal Inj. Comp. Bd. v. Gould, 273 Md. 486, 500-501, 331 A.2d 55, 65 (1975); Heaps v. Cobb, supra, 185 Md. at 379, 45 A.2d at 76; Hecht v. Crook, 184 Md. 271, 280, 40 A.2d 673, 677 (1945). See also Medical Waste v. Maryland Waste, 327 Md. 596, 610-611, 612 A.2d 241, 248 (1992).

   It is well established that an administrative agency may, without violating the principle of separation of powers, adjudicate disputes of a type that might ordinarily also be resolved by[***32] a court. Thus, in Branch v. Indemnity Ins. Co., 156 Md. 482, 144 A. 696 (1929), this Court sustained the Workers' Compensation Act, which removed from the courts, for initial resolution, a class of disputes involving the rights of private employers and employees, and created instead a system wherein such claims would be initially resolved in an administrative forum. See also County Council v. Investors Funding, supra, 270 Md. 403, 312 A.2d 225 (sustaining authority of administrative commission to, inter alia, levy fines and impose money damages); Hecht v. Crook, supra, 184 Md. at 277, 40 A.2d at 675 (observing, in 1945, that "innumerable [*679] controversies are decided today, by boards of legislative creation, of a character that traditionally fell within the scope of judicial inquiry").

   It is readily apparent in the present case that the Act, in allowing the Department of Natural Resources to determine issues relating to compensation for property damage caused by surface mine dewatering, does not violate the principle of separation of powers. While[***33] the Department is given the authority to make an initial determination of a mine operator's liability to property owners affected by mining activities, this initial determination does not involve the Department in the exercise of judicial powers. A mine operator aggrieved by the agency's initial determination is entitled to demand a contested case hearing at the administrative level and is entitled to judicial review. See  § 7-6A-10.2(g) of the Natural Resources Article; Code (1984, 1993 Repl. Vol., 1994 Cum. Supp.), § 10-222 of the State Government Article. Accordingly, the Act neither vests the Department of Natural Resources with judicial power nor gives the Department unreviewable adjudicatory authority in violation of Article 8 of the Declaration of Rights and Article IV, § 1, of the Constitution. See, e.g., Attorney General v. Johnson, supra, 282 Md. [**897] at 284-287, 385 A.2d at 64-65; Shell Oil Co. v. Supervisor, supra, 276 Md. at 47, 343 A.2d at 527; Dep't of Nat. Res. v. Linchester, supra, 274 Md. at 223, 334 A.2d at 522-523; County Council v. Investors Funding, supra, 270 Md. at 429-436, 312 A.2d at 240-243;[***34] Heaps v. Cobb, supra, 185 Md. at 378-379, 45 A.2d at 76.

   VI.

   Maryland Aggregates also contends that the Act is invalid for failure to provide for jury trial of issues regarding property owners' compensation. According to Maryland Aggregates, "disputes between landowners for damages have historically been actions at law with a right to trial by jury." (Maryland Aggregates' brief at 24). Since, under the Act, questions relating to compensation for property damage caused by mine dewatering are resolved in the first instance [*680] by the Department of Natural Resources, Maryland Aggregates maintains that the Act violates Article 23 of the Maryland Declaration of Rights. n13 

n13 Article 23 of the Maryland Declaration of Rights provides as follows:

   "The right of trial by Jury of all issues of fact in civil proceedings in the several Courts of Law in this State, where the amount in controversy exceeds the sum of five thousand dollars, shall be inviolably preserved."
 
Article 5 of the Declaration of Rights also contains a guarantee of the right to jury trial. See Luppino v. Gray, 336 Md. 194, 200-201, 647 A.2d 429, 432 (1994). 

[***35]

   As we have discussed, the statute vests in the Department of Natural Resources the primary power to resolve disputes relating to compensation. In Murphy v. Edmonds, supra, 325 Md. at 370-375, 601 A.2d at 116-118, this Court explained that the right under the Maryland Constitution to a civil jury trial concerns the allocation between judge and jury of the responsibility for decision making in judicial proceedings. Thus, as we emphasized (325 Md. at 372, 601 A.2d at 116),
 
"where . . . the General Assembly has provided that a matter shall not be resolved in a judicial proceeding, by legislatively abrogating or modifying a cause of action, no question concerning the right to a jury trial arises. Since, under such circumstances, the matter will not be resolved in a judicial proceeding, the question as to whether a judge or a jury shall resolve the matter simply does not arise."
 
Consequently, this Court has specifically held the jury trial guarantee inapplicable where the legislature has committed to an administrative agency the initial decision making function with respect to a particular class [***36] of disputes. In Branch v. Indemnity Ins. Co., supra, 156 Md. at 486, 144 A. at 697, this Court stated that under the Workers' Compensation Act, "the method prescribed . . . for the determination of an applicant's right to its specified benefits is essentially different from a civil proceeding in a court of law . . . ." Therefore, the Court concluded, workers' compensation proceedings "could not properly be classified as a civil proceeding in a court of law within the meaning of . . . the State Constitution," and the [*681] constitutional jury trial guarantee was simply inapplicable to administrative proceedings involving workers' compensation. 156 Md. at 485-489, 144 A. at 697-698. n14 

n14 Quoting the Supreme Court's decision in Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 61, 109 S. Ct. 2782, 2800, 106 L. Ed. 2d 26, 53 (1989), which involved the claimed right to jury trial in certain bankruptcy proceedings, Maryland Aggregates argues that the Legislature may not, by "placing exclusive jurisdiction in an administrative agency," deprive litigants of the right to jury trial. Maryland Aggregates' argument is not persuasive. Granfinanciera involved the Seventh Amendment to the United States Constitution, which does not apply to the States. See Curtis v. Loether, 415 U.S. 189, 192 n. 6, 94 S. Ct. 1005, 1007 n. 6, 39 L. Ed. 2d 260, 265 n. 6 (1974); Bringe v. Collins, 274 Md. 338, 341-345, 335 A.2d 670, 673-675, application for stay denied, 421 U.S. 983, 95 S. Ct. 1986, 44 L. Ed. 2d 475 (1975). Furthermore, in Granfinanciera, the Supreme Court drew its Seventh Amendment principles partly from considerations relating to the jurisdiction of the federal courts under Article III of the United States Constitution, and partly from the distinction recognized in Atlas Roofing Co. v. Occupational Safety Comm'n, 430 U.S. 442, 97 S. Ct. 1261, 51 L. Ed. 2d 464 (1977), between "public rights" and "private rights." Granfinanciera, S.A. v. Nordberg, supra, 492 U.S. at 51-55, 109 S. Ct. at 2795-2797, 106 L. Ed. 2d 46-49.

   Moreover, contrary to Maryland Aggregates' contentions, the holding in Granfinanciera, to the limited extent that it can be deemed persuasive, by analogy, to the Maryland Constitution and the Maryland courts, appears to be consistent with our holding in the present case. In one observation relevant to the present case, the Court stated as follows (Granfinanciera, S.A. v. Nordberg, supra, 492 U.S. at 52, 109 S. Ct. at 2796, 106 L. Ed. 2d at 47):

   "In certain situations, of course, Congress may fashion causes of action that are closely analogous to common-law claims and place them beyond the ambit of the Seventh Amendment by assigning their resolution to a forum in which jury trials are unavailable."

[***37]

   [**898] Likewise, Article 23 does not apply to administrative proceedings under the Act challenged in the present case. The Act permits landowners damaged by surface mine dewatering to receive compensation for that damage from the operators of the mines. As we have explained, it was constitutionally permissible for the Act to establish the compensation system and to administer it through the Department of Natural Resources. The observations of this Court in Branch v. Indemnity Ins. Co., supra, 156 Md. at 487, 144 A. at 697, are pertinent here: [*682]

   "It having been determined by this court that the . . . act . . . was a competent exercise of legislative authority, there would be apparent inconsistency in holding, nevertheless, that a right of jury trial according to the course of the common law must in such cases be recognized and unqualifiedly enforced."
 
Article 23 does not invalidate the General Assembly's decision to commit to the Department of Natural Resources the initial function of determining factual issues relating to compensation for property damage cause by surface mine dewatering. n15 

n15 While Article 23 does not constrain the legislature's power to commit initial decision making authority over a class of matters to an administrative forum, Article 19 of the Maryland Declaration of Rights may, under circumstances not presented in the instant case, impose a substantive limitation on that power. Article 19 provides as follows:

   "That every man, for any injury done to him in his person or property, ought to have remedy by the course of the Law of the land, and ought to have justice and right, freely without sale, fully without any denial, and speedily without delay, according to the Law of the land."

[***38]

   VII.

   Maryland Aggregates maintains that the regulation under the Act amounts to a taking of property without just compensation in violation of the federal and state constitutions. n16 In particular, Maryland Aggregates argues that the statute, "in impairing the right to pump water, has effected a taking because it substantially interferes with rights in the [*683] quarry parcel as a whole." (Maryland Aggregates' brief at 29).

n16 The Takings Clause of the Fifth Amendment provides as follows:
 
"Nor shall private property be taken for public use, without just compensation."
 
This principle applies to the states through the Fourteenth Amendment. See Dolan v. City of Tigard, 114 S. Ct. 2309, 2316, 129 L. Ed. 2d 304, 315 (1994), citing Chicago, B. & Q. R. Co. v. Chicago, 166 U.S. 226, 17 S. Ct. 581, 41 L.Ed. 979 (1897).

   Article III, § 40, of the Maryland Constitution reads as follows:

   "The General Assembly shall enact no Law authorizing private property, to be taken for public use, without just compensation, as agreed upon between the parties, or awarded by a Jury, being first paid or tendered to the party entitled to such compensation."

[***39]

   As the circuit court recognized, it is significant to the present case that the surface mine dewatering Act has not yet been implemented in Maryland. The Supreme Court's statement in Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U.S. 470, 494, 107 S. Ct. 1232, 1246, 94 L. Ed. 2d 472, 494 (1978), is pertinent:

   "The posture of the case is critical because we have recognized an important distinction between a claim that the mere enactment of a statute constitutes a taking and a claim that the particular impact of government action on a specific piece of property requires the payment of just compensation."
 
In Hodel v. Virginia Surface Mining & Recl. Assn., 452 U.S. 264, 295-296, 101 S. Ct. 2352, 2370, 69 L. Ed. 2d 1, 28 (1981), the Court explained the distinction in the context of a takings challenge to the federal Surface Mining Control and Reclamation Act, which had been held unconstitutional by the trial court and, consequently, never enforced. Observing that a takings challenge to regulatory legislation generally must be resolved by [**899] considering specific facts [***40] that might bear upon the economic impact of the regulation and the particular nature of the government interference, the Court continued as follows (ibid.):
 
"These 'ad hoc, factual inquiries' must be conducted with respect to specific property, and the particular estimates of economic impact and ultimate valuation relevant in the unique circumstances.
 
"Because appellees' taking claim arose in the context of a facial challenge, it presented no concrete controversy concerning either application of the Act to particular surface mining operations or its effect on specific parcels of land. Thus, the only issue properly before the District Court and, . . . this Court is whether the 'mere enactment' of the Surface Mining Act constitutes a taking. . . . The test to be applied in considering this facial challenge is fairly straightforward. [*684] A statute regulating the uses that can be made of property effects a taking if it 'denies an owner economically viable use of his land . . . . '" Agins v. Tiburon, [447 U.S. 255, 260, 100 S. Ct. 2138, 2141, 65 L. Ed. 2d 106, 112 (1980)]. See Penn Central Transp. Co. v. New York City, 438 U.S. 104, 98 S. Ct. 2646, 57 L. Ed. 2d 631 (1978).[***41] "
 
See also Lucas v. South Carolina Coastal Council, 112 S. Ct. 2886, 2893-2895, 120 L. Ed. 2d 798, 813-815 (1992); Keystone Bituminous Coal Assn. v. DeBenedictis, supra, 480 U.S. at 495, 107 S. Ct. at 1247, 94 L. Ed. 2d at 495 (observing that litigants "face an uphill battle in making a facial attack on the Act as a taking"); Governor v. Exxon Corp., supra, 279 Md. at 437, 370 A.2d at 1117; Bureau of Mines v. George's Creek, 272 Md. 143, 167-175, 321 A.2d 748, 761-765 (1974). Compare, Maryland Port Admin. v. QC Corp., 310 Md. 379, 529 A.2d 829 (1987) (noting complexity of takings law in challenges to legislation as applied).

   The Supreme Court has recently emphasized that it is only where "the owner of real property has been called upon to sacrifice all economically beneficial uses in the name of the common good, that is, to leave his property economically idle, [that] he has suffered a taking." Lucas v. South Carolina Coastal Council, supra, 112 S. Ct. at 2895, 120 L. Ed. 2d at 815.[***42] See also Governor v. Exxon Corp., supra, 279 Md. at 437, 370 A.2d at 1117, and cases there cited. The Supreme Court has strictly construed the requirement that, for economic regulatory legislation to constitute a "taking," property must be rendered essentially valueless by government action. For example, the legislation challenged in Keystone Bituminous Coal Assn. v. DeBenedictis, supra, 480 U.S. 470, 107 S. Ct. 1232, 94 L. Ed. 2d 472, required mine operators to leave in place 50% of the bituminous coal lying beneath certain structures, and further required mine operators to provide compensation for subsidence damage caused by mining. The Court rejected the mine operators' facial takings challenge to the enactment, in part because (480 U.S. at 495-496, 107 S. Ct. at 1247, 94 L. Ed. 2d at 495)[*685]
 
"petitioners have not claimed, at this stage, that the Act makes it commercially impracticable for them to continue mining their bituminous coal interests in western Pennsylvania. Indeed, petitioners have not even pointed to a single mine [***43] that can no longer be mined for profit."
 
Absent such a showing, the Court held that the mine operators had failed to show "any deprivation significant enough to satisfy the heavy burden placed upon one alleging a regulatory taking." 480 U.S. at 493, 107 S. Ct. at 1246, 94 L. Ed. 2d at 493. n17 

n17 By contrast, "where the government authorizes a physical occupation of property (or actually takes title), the Takings Clause generally requires compensation." Yee v. City of Escondido, Cal., 503 U.S. 519, 112 S. Ct. 1522, 1526, 118 L. Ed. 2d 153, 162 (1992). See also Dep't of Natural Resources v. Welsh, 308 Md. 54, 521 A.2d 313 (1986).

   Maryland Aggregates does not contend that the Act makes surface mining a commercial impracticability for its members, nor that it renders their property entirely without value. Not only does the Act not require mine operators "to [***44]sacrifice all economically beneficial uses" of their property, Lucas v. South Carolina Coastal Council, supra, 112 S. Ct. at 2895, 120 L. Ed. 2d at 815, it does not prevent them from continuing [**900] with the economically beneficial use to which the mines are currently put. Although the statute may make surface mining more expensive, by requiring mine operators to compensate other property owners for damage cause by dewatering, land use regulation may "transfer wealth from the one who is regulated to another" without violating the takings clause. Yee v. City of Escondido, Cal., 503 U.S. 519, 112 S. Ct. 1522, 1529, 118 L. Ed. 2d 153, 166 (1992). The principles set forth by the Supreme Court in Connolly v. Pension Benefit Guaranty Corp., 475 U.S. 211, 223, 106 S. Ct. 1018, 1025, 89 L. Ed. 2d 166, 177 (1986), are persuasive here:
 
"In the course of regulating commercial and other human affairs, Congress routinely creates burdens for some that directly benefit others. For example, Congress may set minimum wages, control prices, [***45] or create causes of action that did not previously exist. Given the propriety of the [*686] governmental power to regulate, it cannot be said that the Taking Clause is violated whenever legislation requires one person to use his or her assets for the benefit of another."

 
 See also Concrete Pipe & Prod. v. Const. Laborers Pen. Tr., 113 S. Ct. 2264, 2290-2292, 124 L. Ed. 2d 539, 577-578 (1993). The circuit court properly granted summary judgment in favor of the State on Maryland Aggregates' claim based on the takings clauses.

   VIII.

   Finally, Maryland Aggregates contends that the mechanisms created by the Act for establishing zones of dewatering influence violate principles of procedural due process. Like the circuit court, we hold that Maryland Aggregates' contentions are without merit. n18 

n18 In its reply brief, Maryland Aggregates also objects to the procedures for establishing claims to compensation under the Act. The Act provides that "the Department shall adopt regulations to establish an administrative process to expedite the resolution of water supply loss or property damage claims arising under this section." § 7-6A-10.2(h) of the Natural Resources Article. The Department has not yet promulgated any such regulations because of the injunction against enforcement of the Act. Furthermore, while Maryland Aggregates argues that a mine operator is not entitled to judicial review of decisions relating to compensation, we agree with the State that a mine operator or property owner is entitled to review of a "decision of [the Department of Natural Resources] regarding a finding of proximate cause relating to water supply failure or property damage within a zone of dewatering influence. This decision is reviewable first as a contested case hearing . . . ." (State's brief at 22). A party aggrieved by the result of the contested case hearing may seek judicial review in the circuit court. Code (1984, 1993 Repl. Vol., 1994 Cum. Supp.), § 10-222 of the State Government Article.

[***46]

   This Court has recently explained the nature of the guarantee of procedural due process in the context of administrative proceedings (Maryland State Police v. Zeigler, 330 Md. 540, 559, 625 A.2d 914, 923 (1993)):

   "Procedural due process, guaranteed to persons in this State by Article 24 of the Maryland Declaration of Rights, requires that administrative agencies performing adjudicatory or quasi-judicial functions observe the basic principles [*687] of fairness as to parties appearing before them. See, e.g., Schultz v. Pritts, [291 Md. 1, 7, 432 A.2d 1319, 1323 (1981)]; Ottenheimer Pub. v. Employ. Sec. Adm., 275 Md. 514, 520, 340 A.2d 701, 704 (1975); Rogers v. Radio Shack, 271 Md. 126, 129, 314 A.2d 113, 115 (1974); Dal Maso v. Bd. of Co. Comm'rs, supra, 238 Md. at 337, 209 A.2d at 65. See also Heft v. Md. Racing Comm'n, 323 Md. 257, 270-272, 592 A.2d 1110, 1116-1118 (1991), and authorities there cited."
 
Maryland Aggregates claims[***47] that the Act violates fundamental principles of fairness with respect to the establishment of zones of dewatering influence, stating that "the quarry owner is not afforded an opportunity under the Act for input into the delineation of the zone." (Maryland Aggregates' brief at 31). This position is clearly mistaken.

   Under the Act, if a mine receives a water appropriation permit, then "the Department [of Natural Resources] shall establish, as a condition of the [mine operator's] surface mining permit . . . a zone of dewatering influence around the surface mine." § 7-6A-10.2 (b)(1) of the Natural Resources Article. Subsection (g) of § 7-6A-10.2 provides that [**901] "the Department shall provide opportunity for a contested case hearing in accordance with the provisions of § 8-206 of this article." Section 8-206(g) in turn provides in part as follows:
 
"Upon written request the Department shall grant a contested case hearing if it determines that:
 
(1) The requester has a specific right, duty, privilege, or interest which is or may be adversely affected by the permit determination or license decision and which is different from that held by the general public . . . ."
 
The establishment[***48] of the zone of dewatering influence is generally a decision in which a mine operator has a unique interest that may be adversely affected by an improper decision. Furthermore, the provisions of the Administrative Procedure Act that govern contested case hearings, Code (1984, 1993 Repl. Vol., 1994 Cum. Supp.), §§ 10-201 through 10-226 of the State Government Article, would apply to a hearing [*688] brought under § 8-206. See  § 10-202(d) (defining "contested case" to include the "amendment of a license that is required by statute or constitution to be determined only after an opportunity for an agency hearing") and § 10-202(f)(3)(iv) (defining "license" to include a permit) of the State Government Article. See generally Medical Waste v. Maryland Waste, supra, 327 Md. 596, 612 A.2d 241; Sugarloaf v. Waste Disposal, 323 Md. 641, 663-668, 594 A.2d 1115, 1126-1128 (1991), and cases there cited. Contested case hearings under the Administrative Procedure Act include the rights to present evidence and to seek judicial review. §§ 10-213 and 10-222 of the State Government Article. Thus, contrary to Maryland [***49]Aggregates' contention, the operators of surface mines will have ample opportunity to contribute to the delineation of zones of dewatering influence in a manner that satisfies basic principles of fairness.

   In sum, we conclude that the statute is not constitutionally deficient on any of the grounds urged by Maryland Aggregates. 

ISA SAHIN v. STATE OF MARYLAND 
No. 31, September Term, 1994
 
COURT OF APPEALS OF MARYLAND
 
337 Md. 304; 653 A.2d 452; 1995 Md. LEXIS 15
 
   February  8, 1995, Filed

   PRIOR HISTORY: Certiorari to the Court of Special Appeals (Circuit Court for  Anne Arundel  County). Bruce C. Williams, JUDGE.

CORE TERMS:  truthfulness, good character, veracity, credibility, attacked, character evidence, character trait, admissible, impeaching, detective, reputation, truthful, vice, untruthfulness, trait, character witness, good reputation, cocaine, circumstantial evidence, drug dealing, crime charged, impeachment, innocence, guilt, innocent, memory, lapse, pants, conflicting testimony, law abiding

COUNSEL: ARGUED BY Geraldine Kenney Sweeney, Assistant Public Defender, (Sherrie B. Glasser, Assistant Public Defender; Stephen E. Harris, Public Defender, on brief) of Baltimore, MD., FOR PETITIONER.
 
ARGUED BY Kimberly Smith Ward, Assistant Attorney General, (J. Joseph Curran, Jr., Attorney General, on brief) of Baltimore, MD., FOR RESPONDENT.

JUDGES: [***1] ARGUED BEFORE Murphy, C.J.; Eldridge, Rodowsky, Chasanow, Bell, Raker, and McAuliffe, John F., Judge of the Court of Appeals (retired and specially assigned), JJ.

OPINIONBY: CHASANOW

OPINION:  
[*307] [**453] Opinion by Chasanow, J.
 
This appeal requires that we decide the appropriateness of calling character witnesses to testify to a criminal defendant's good reputation for truthfulness. For the reasons indicated, we depart from the majority rule, and we hold that a criminal defendant on trial for a veracity impeaching offense n1 may, after testifying, offer evidence of his or her good character for truthfulness.

n1 By veracity impeaching offenses, we mean infamous crimes or other crimes relevant to credibility as used in Maryland Rule 5-609. That is, those crimes which are so relevant to credibility that convictions of the crime may be used to attack the credibility of a witness.

   [**454] I.

   The defendant Isa Sahin, an American immigrant of Turkish descent, was arrested and charged with four counts each of distribution of cocaine and lesser included offenses. After a jury trial before the Honorable Martin A. Wolff [***2]of the Circuit Court for Anne Arundel County, Sahin was convicted of the four counts of distribution of cocaine and sentenced to serve four concurrent three year terms of incarceration. The principal [*308] testimony at trial was given by a vice detective of the Anne Arundel County Police Department. He asserted that he and an informant made four purchases of cocaine from Sahin between June 29, 1992 and July 1, 1992. The officer testified that the only persons present during the transactions were himself, the defendant, and the informant. The informant was not called to testify. Upon conclusion of the last sale, the vice detective arranged to make one more purchase which was to occur the following day. On that date, officers returned with a search warrant for defendant's residence. The warrant authorized a search for controlled dangerous substances, drug paraphernalia, books and records detailing drug transactions, telephone numbers, address books, and photographs of associates related to the sale of drugs. None of the suspected items were recovered during the execution of the warrant. The inculpatory evidence retrieved from defendant's residence consisted of two fifty dollar bills and one [***3] twenty dollar bill, the serial numbers of which allegedly matched the serial numbers of the bills used by the vice detective for the undercover purchases. The bills were recovered by the vice detective from the pocket of a pair of pants located in an unused room on the second floor. Additionally, eighteen dollars was discovered in a pocket of a pair of pants located in a room later identified as the defendant's bedroom. The money recovered from defendant's residence was not available at trial as it was put back into circulation by the Anne Arundel County Police Department. When questioned as to whether the pants containing the "marked" bills fit the defendant, the officer responded that he did not know.

   In his own defense, Sahin took the stand and testified, through an interpreter, that unusual happenings occurred at his residence while he was away working two jobs. Sahin contends that a back door which he never used was often ajar, strange cigarette butts were found in his ashtray, and his dining room table had been moved on multiple occasions. He further alleged that his friend, Ms. Corrine Boston, who was present with him when the search warrant was executed, visited his residence[***4] on several prior occasions. Defendant [*309] suggested that Ms. Boston and/or an acquaintance may have used his residence to sell the illegal narcotics. Sahin testified that he did not know the vice detective or the informant, and he vehemently denied the detective's allegations. Sahin asserted that he has never sold drugs to anyone and that he has never been convicted of any crime. When questioned about the pants, Sahin testified that he didn't keep clothes in any room other than his bedroom. He also testified that he did not know to whom the pants belonged. In support of his theory that someone else had used his residence, Sahin testified that he had recently moved into the home and that he did not know if anyone else had a key or access to the residence.
 
   After Sahin's testimony, defense counsel attempted to call two of Sahin's former employers as character witnesses who would testify that the defendant had a good reputation for truthfulness. The court allowed one of the witnesses to testify as to the length and nature of the relationship with the defendant but disallowed any evidence as to Sahin's reputation for truthfulness. Weather conditions in New York City prevented the second witness[***5] from appearing and testifying on the day of trial, but the trial judge accepted a proffer at the bench that the witness would also testify to Sahin's good character for truthfulness. The trial court excluded the character evidence on two grounds. First, the court reasoned that truthfulness was not a relevant character trait of one accused of selling narcotics and that testimony to that respect was therefore inadmissible. Additionally, the court held that character evidence offered to bolster the credibility of a witness is inadmissible until such time [**455] that that witness's character is attacked or challenged and merely being charged with distribution of cocaine and related offenses was not an attack on veracity. In closing argument, both the defense and the prosecution agreed that "this case hinges on who do you believe. Do you believe [the vice detective or] do you believe Isa Sahin, the Defendant." The defense suggested it was either a case of mistaken identity or the charges were manufactured by the officer to account for the $720.00 in police department funds he received and allegedly gave to the defendant [*310] in exchange for drugs, as well as the approximately $200.00 in police department[***6] funds he allegedly paid the confidential informant during this investigation. The jury apparently believed the vice detective rather than the defendant and convicted Sahin of all charges. The defendant's convictions were affirmed by the Court of Special Appeals in an unreported opinion. We granted certiorari to consider the appropriateness of the trial court's exclusion of the character evidence.

   II.

   Sahin's sole contention on appeal is that the lower courts erred in ruling that, after he testified at trial, he could not offer character evidence of his good reputation for truthfulness. He argues that the trial court's refusal to allow the character evidence denied him a fair trial. Sahin's first contention is based on the well established doctrine that a criminal defendant may always offer evidence of his or her good character for a trait relevant to the crime charged as circumstantial evidence of innocence. See 1 McCormick on Evidence § 191, at 812-14 (John W. Strong ed., 4th ed. 1992). He reasons from this basic rule of evidence that his character for truthfulness is pertinent to the crime of distribution of cocaine. In support of his contention, Sahin relies on State v. Giddens, 335 Md. 205, 217, 642 A.2d 870, 876 (1994),[***7] wherein we quoted from United States v. Ortiz, 553 F.2d 782, 784 (2d Cir.), cert. denied, 434 U.S. 897, 98 S. Ct. 277, 54 L.Ed.2d 183 (1977) that "'a narcotics trafficker lives a life of secrecy and dissembling in the course of that activity, being prepared to say whatever is required by the demands of the moment, whether the truth or a lie.'" Sahin argues that we should extend this statement to connote that credibility is a "pertinent" character trait of the crime of distribution of narcotics. As such, Sahin contends that he should be permitted to put on character witnesses that will testify to the relevant issue of his good reputation for truthfulness and that the jury should consider this evidence when determining his guilt or innocence in relation to the crime charged.

    [*311] In arguing that truthfulness is a character trait pertinent to the offense of distribution of cocaine, Sahin fails to distinguish the admissibility of evidence of a character trait relevant to the propensity of the defendant to commit the charged offense from the admissibility of evidence relevant to the untruthfulness[***8] of a witness. In defining character traits relevant to the charged offense, the Maryland Court of Special Appeals has observed "'to be relevant, it is necessary that the character be confined to an attribute or trait the existence or nonexistence of which would be involved in the noncommission or commission of the particular crime charged.'" Braxton v. State, 11 Md. App. 435, 440, 274 A.2d 647, 650 (1971)(quoting Wharton's Criminal Evidence § 221, at 458-59 (12th ed. 1955)). That court enumerates examples of irrelevant character traits for specific crimes:
 
"It is irrelevant to show the defendant's reputation for honesty and integrity in a prosecution for adultery; for truth and veracity, or peace and quietude, in a prosecution for statutory rape; for good military conduct in a rape prosecution; for truth and veracity in a robbery prosecution; or for honesty and integrity, in a murder prosecution; for morality and sobriety in a prosecution for a false bank report entry; or for reliability in business in a prosecution for the malicious destruction of property."
 
11 Md. App. at 440 n.3, 274 A.2d at 650 n.3[***9] (quoting 1 Wharton's Criminal Evidence § 221, at 460). In Giddens, we also cited with approval from State v. Pierce, 107 Idaho 96, 685 P.2d 837, 844 (1984). We said: "Although [the Idaho] court said that it would be a strain to characterize delivery of [**456]heroin as a crime of dishonesty, it held that that offense 'had probative value on the question of ... credibility' because a person who has committed such a crime shows disrespect for the law and may not take an oath seriously." Giddens, 335 Md. at 219, 642 A.2d at 877 (quoting Pierce, 685 P.2d at 844).
 
While we stated in Giddens that the distribution of drugs is a crime relevant to dishonesty and such a conviction is admissible for impeachment purposes, we decline to hold that good [*312] character for truthfulness is a relevant, pertinent character trait that constitutes circumstantial evidence that the accused is unlikely to distribute drugs. See, e.g., United States v. Jackson, 588 F.2d 1046, 1055 (5th Cir.)(character evidence of the trait for truthfulness [***10]not relevant to the criminal charge of conspiracy to distribute heroin and not admissible as circumstantial evidence of innocence of this crime), cert. denied, 442 U.S. 941, 99 S. Ct. 2882, 61 L.Ed.2d 310 (1979); Grant v. State, 55 Md. App. 1, 39, 461 A.2d 524, 540, cert. granted, 298 Md. 708, 466 A.2d 39 (1983), and cert. dismissed, 299 Md. 309, 473 A.2d 455 (1984). There exist character traits more directly relevant and pertinent to the commission or noncommission of the offense of drug dealing than character for truthfulness. See, e.g., United States v. Angelini, 678 F.2d 380, 381, 382 n.1 (1st Cir. 1982) (evidence of defendant's good character as a law abiding person relevant to distribution of a controlled dangerous substance, but good character for truthfulness is not relevant); United States v. Diaz, 961 F.2d 1417, 1419 (9th Cir. 1992)(the defendant's good character for being a law abiding person and [***11]not being prone to criminal conduct is admissible in a trial for possession with intent to distribute cocaine). The character trait for truthfulness, though it has some relevance, is not the pertinent character trait which constitutes circumstantial evidence that the defendant would be unlikely to commit the drug offenses for which he was being tried.
 
   The Maryland Court of Special Appeals, in Grant, noted that truthfulness may be a relevant character trait when the crime is one in the nature of crimen falsi. Grant, 55 Md. App. at 39, 461 A.2d at 542. This Court defines crimen falsi as "crimes in the nature of perjury or subornation of perjury, false statement, criminal fraud, embezzlement, false pretense, or any other offense involving some element of deceitfulness, untruthfulness, or falsification bearing on witness' propensity to testify truthfully." Wicks v. State, 311 Md. 376, 382, 535 A.2d 459, 461-62 (1988)(citing Black's Law Dictionary 335 (5th ed. 1979)). Our holding in Giddens asserts only that truthfulness is relevant for impeachment purposes; it does not indicate[***12] distribution of drugs is a crimen [*313] falsi offense. It follows that, since drug dealing is not a crimen falsi offense, truthfulness is only indirectly a relevant character trait and this trait should not be admissible as circumstantial evidence of innocence in lieu of a more directly relevant character trait. Thus, because truthfulness is only relevant after the defendant testifies, defendants charged with drug distribution, who do not testify, may introduce their good character for being law abiding people, but not their good character for truthfulness.

   Our holding that good character for truthfulness is not a character trait which would be admissible as circumstantial evidence that Sahin did not commit the crime of drug distribution does not end our inquiry. Because Sahin testified as a witness, the next issue is whether that testimony makes his character for truthfulness admissible. Maryland Rule 5-608(a), although not in effect at the time of trial, nevertheless sums up the general rule regarding any witness's character for truthfulness. That rule states in pertinent part:
 
"(1) Impeachment by a Character Witness. -- In order to attack the credibility of a witness, [***13] a character witness may testify (A) that the witness has a reputation for untruthfulness, or (B) that, in the character witness's opinion, the witness is an untruthful person.

(2) Rehabilitation by a Character Witness. -After the character for truthfulness of a witness has been attacked, a character witness may testify (A) that the witness has a good reputation for truthfulness or (B) that, in the character witness's opinion, [**457] the witness is a truthful person." (Emphasis added).
 
Thus, all witnesses, including criminal defendants, may be rehabilitated with their good character for truthfulness after their character for truthfulness has been attacked. See, e.g., Vernon v. Tucker, 30 Md. 456, 462 (1869); Hallengren v. State, 14 Md. App. 43, 50, 286 A.2d 213, 217 (1972); State v. Webb, 252 Mont. 248, 828 P.2d 1351, 1356 (Mont. 1992). The defendant suggests that the State's accusations of drug distribution, a crime acknowledged to be relevant for impeachment, and the [*314] State's evidence that the defendant committed these crimes are attacks on his truthfulness in the same [***14] manner that a conviction for drug dealing would be an attack on truthfulness. The State acknowledges that the crime of drug dealing indicates untruthfulness and it alleges that the defendant is guilty of drug dealing, yet it also maintains that it has not attacked his credibility. We hold that, when a defendant charged with a crime which would be an impeachable offense elects to testify, the State's evidence that the defendant committed the impeachable offense constitutes an attack sufficient to allow the defendant to present character evidence of his or her good character for truthfulness. n2 

n2 A defendant's right to present good character evidence is not without risk. As we said in State v. Watson, 321 Md. 47, 52, 580 A.2d 1067, 1069 (1990): 
 
"The potential price that a defendant may pay for offering proof of his or her good character is to throw open an avenue of inquiry previously foreclosed to the State."

   The 1971 Revision of the initial draft of the proposed[***15] federal rules of evidence added language which would have expressly allowed a criminal defendant who testifies to introduce evidence of good character for truthfulness. Revised Draft of Proposed Rules of Evidence for the United States Courts and Magistrates, 51 F.R.D. 315, 388-90 (March, 1971). An explanation for that proposal was:
 
"In a sense a defendant is always intensely interested in the outcome of the case and is impeached by his status alone. While this change was a modification of common law theory, it followed courthouse practice in many parts of the country. Typically a character witness for the defendant is called once and asked all the questions under Rules 404(a)(1) and 404(a)(3) and 608. For example, in an assault case he is asked both about defendant's reputation for peacefulness and, when defendant will take, or has taken, the stand, about the defendant's reputation for veracity. Since character witnesses normally have other things to do and their testimony is usually brief, they are typically put on the [*315] stand as soon as they arrive in court, whether or not the defendant has already testified." 
 
3 Jack B. Weinstein & Margaret A. Berger, [***16] Weinstein's Evidence P 608[02], at 608-14-15 (1988).

   The Department of Justice and Senator McClellan objected to the language expressly permitting an accused to buttress character for truthfulness before it was attacked and perhaps even before the accused testified, although Senator McClellan concluded the issue "is not of large moment." See 3 David W. Louisell & Christopher B. Mueller, Federal Evidence § 303, at 209 n.47 (1979)(quoting Senator McClellan's Letter, 117 Cong. Rec. 33642, 33645 (Sept. 28, 1991)). The proposed federal rule was amended as follows with bracketed material omitted:
 
"(a) Opinion and Reputation Evidence of Character. The credibility of a witness may be attacked or supported by evidence in the form of reputation or opinion, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2)[, except with respect to an accused who testifies in his own behalf,] evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.
  
See 3 Weinstein's Evidence P 608[02], at 608-17. [***17] Proposed Rule 608 in that amended form became the Advisory Committee's final draft and was ultimately adopted. n3 Advisory [**458] Committee also eliminated the following note which contained the justification for its 1971 draft:

n3 Maryland Rule 5-608(a)(2), which was not in effect at the time of trial in the instant case, differs slightly in form from its federal counterpart. Maryland Rule 5-608(a)(2) merely provides:
 
"Rehabilitation by a Character Witness. -After the character for truthfulness of a witness has been attacked, a character witness may testify (A) that the witness has a good reputation for truthfulness or (B) that, in the character witness's opinion, the witness is a truthful person."
 
The newly adopted Maryland Rules of Evidence are consistent with our holding in the instant case.

   
 
[*316] "The exception with respect to the accused who testifies is based upon the assumption that the mere circumstance of being the accused is an attack on character. It is consistent with the admissibility of evidence of[***18] good character under Rule 404(a)(1)."
 
Id.

   Perhaps because of the history of Federal Rule 608(a), most criminal cases decided pursuant to the rule fail to differentiate between defendants charged with veracity impeaching offenses and defendants charged with less serious offenses, and the cases simply hold that neither the charge nor the fact that the State's witnesses contradict the defendant's testimony constitutes an attack on a defendant's character for truthfulness sufficient to permit the defendant to introduce evidence of good character for truthfulness. See 3 Weinstein's Evidence P 608[08], at 608-64-65. See also Angelini, 678 F.2d at 382 n.1; United States v. Dring, 930 F.2d 687, 690-92 (9th Cir. 1991), cert. denied, ___ U.S. ___, 113 S. Ct. 110, 121 L.Ed.2d 68 (1992); United States v. Danehy, 680 F.2d 1311, 1314 (11th Cir. 1982). State courts construing a corresponding rule also hold that the mere fact that the defendant takes the stand does not constitute an attack on his credibility. See Rios v. State, 262 Ark. 407, 557 S.W.2d 198, 200 (Ark. 1977);[***19] Daly v. State, 99 Nev. 564, 665 P.2d 798, 803 (Nev. 1983); People v. Colclasure, 200 Ill. App. 3d 1038, 558 N.E.2d 705, 710, 146 Ill. Dec. 742, (Ill. Ct. App.), appeal denied, 561 N.E.2d 697 (1990).
 
Our holding in the instant case may overrule at least one prior decision of the Court of Special Appeals. See Boone v. State, 33 Md. App. 1, 6, 363 A.2d 550, 554 (1975), cert. denied, 279 Md. 681, ___ A.2d ___ (1976), where the Court of Special Appeals, quoting 81 Am. Jur. 2d Witnesses § 639, stated:
  
"'To warrant the admission of evidence of a witness' general character or reputation for truth and veracity in support of such witness, there must be some special or particular element introduced in the case by which such witness is impeached or discredited.... Thus, where a [*317] defendant in a criminal case elects to testify in his own behalf, and where his credibility is not attacked, except by contradiction of his testimony, evidence sustaining his reputation for truth and veracity is not admissible.'"
 
33 Md. App. at 8, 363 A.2d at 554-55.[***20]

   Although our holding may be a minority view, some text writers have suggested the rule we adopt in the instant case. See, e.g., 28 Charles A. Wright & Victor J. Gold, Federal Practice and Procedure § 6116, at 74-75 (1993) stating:
 
"The mere bringing of criminal charges may constitute an attack on truthfulness, but only where the defendant is charged with perjury or some other crime impugning veracity. If the defendant testifies in such a case, evidence of truthful character would be admissible under Rule 608(a) to support credibility." (Footnote omitted).
 
There are also at least a few cases in accord with our holding, especially where the issue before the trier of fact is the defendant's credibility weighed against the credibility of the State's witnesses. In People v. Taylor, 180 Cal. App. 3d 622, 225 Cal. Rptr. 733 (Cal. Ct. App. 1986), the court acknowledged the general rule that good character evidence could only be introduced when the character of the witness for truth and honesty had been attacked. 225 Cal. Rptr. at 736. The court continued, however, asserting:
 
"It is also well established, however, that when a defendant[***21] in a criminal prosecution takes the stand and denies his guilt he puts in issue his reputation for truth and honesty and subjects himself to the rules for testing credibility.... In this case, the question of credibility was not collateral but critical. As the prosecutor acknowledged, the only issue in this case was credibility. Far from being 'unnecessary [**459] to a proper determination' of this issue, the proffered reputation evidence was the only support available to defendant for his version of the facts, other than the conflicting testimony elicited from [the opposing party] on cross-examination." (Emphasis in original)(citations omitted).
 
[*318] 225 Cal. Rptr. at 737. In Taylor, the appellate court reversed the trial court based on the California Constitution and found error in precluding evidence of the defendant's good reputation for truth and veracity. 225 Cal. Rptr. at 739.

   We find that the four reasons most often given for refusing to allow evidence of a witness's good character for truthfulness until the witness's character for truthfulness is attacked are not persuasive where the witness is a defendant on trial for [***22] a veracity impeaching offense.

   1) We do not permit evidence of good character for truthfulness, absent a direct attack on truthfulness, as a corollary to the rule that, generally, character evidence is inadmissible.

    1 McCormick on Evidence § 47, at 172 n.1 states:

   "The exclusion of character-support [for truthfulness], in the absence of attack, is frequently explained as the corollary of a presumption that the character of the witness is good."
 
But there is no presumption that people charged with serious crimes have good character. It is because no such presumption of general good character exists for criminal defendants that we allow criminal defendants to introduce evidence of their good character for the character trait relevant to the crime charged. Since criminal defendants are already given the unique right, not afforded to any other litigant, to introduce good character evidence, it is a reasonable corollary to that rule that defendants charged with crimes which reflect negatively on their truthfulness ought to be able to introduce character evidence to show that they are truthful people and should be believed when they testify that they did not commit the veracity[***23] impeaching crime charged.

   2) Evidence of good character for truthfulness is irrelevant because, in the absence of an attack on truthfulness, we presume all witnesses tell the truth.

   In United States v. Bowie, 892 F.2d 1494 (10th Cir. 1990), the court stated:
 
[*319] "Fed.R.Evid. 608(a)(2) provides that 'evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.' * * * Fed.R.Evid 608(a)(2) seems primarily concerned with saving time and simplifying trials; unless there is a specific reason to believe otherwise, we can safely presume that witnesses tell the truth." (Citations omitted).
 
892 F.2d at 1499.

   While it is reasonable to conclude that jurors and judges will assume that, as a general rule, witnesses tell the truth when they testify, it is not reasonable to conclude that jurors and judges will assume that, as a general rule, someone indicted for drug distribution or a similar veracity impeaching offense is telling the truth when his or her testimony conflicts with the testimony of a police officer. An accused [***24] drug dealer and a police officer may be entitled to an equal presumption of truthfulness in the eyes of the law, but it is doubtful they are given an equal presumption of truthfulness in the eyes of a jury. Defendants charged with veracity impeaching offenses ought to be able to introduce character evidence to prove they are truthful people and that their testimony, even though in conflict with the prosecution's witnesses, should be given some weight.

   3) Evidence of good character for truthfulness is irrelevant because, when witnesses contradict each other, it is generally because one of the witnesses made an honest mistake or had a memory lapse, not because of deliberate untruthfulness.

   Professor McLain suggests that methods of impeachment which "do not amount to an attack on the witness' truthfulness but suggest, for example, only a memory lapse or other mistake," do not open the door for good character for truthfulness. 6 Lynn McLain, Maryland Practice, § 608.3, at 72 [**460] (1987). Generally, contradiction is not an attack on character for truthfulness, but the State's accusations and evidence that the defendant committed a crime that adversely impacts on [*320] credibility is an attack[***25] on the defendant's truthfulness which goes far beyond merely suggesting memory lapse or mistake. Fact finders may assume that generally witnesses intend to tell the truth and, if any witnesses' testimony is inaccurate, it is an honest mistake or memory lapse, rather than untruthfulness. But a criminal defendant's testimony denying the offense charged can rarely, if ever, be an honest mistake or memory lapse. Since a defendant who testified to his innocence is usually either telling the truth or lying, the State's contrary evidence of guilt of a veracity impeaching offense is an attack on truthfulness. Cf. Franklin Sugar Refining Co. v. Luray Supply Co., 6 F.2d 218, 219-20 (4th Cir. 1925). The issue in Franklin Sugar was whether defendant was properly permitted to offer evidence of the good character for truthfulness of two defense witnesses, Ford and Harnsberger, who were only impeached by the conflicting testimony of two of plaintiff's witnesses, Frazier and McLaurin. The Fourth Circuit held the good veracity character evidence was properly admitted and stated:
 
"Ford and Harnsberger could by no reasonable possibility have been mistaken. [***26]They testified as to the one and only interview they had ever had with Frazier or with McLaurin. The matter of these interviews was of very great importance to Ford and Harnsberger. Forgetfulness on their part was simply beyond the range of reasonable possibility. As a practical necessity their testimony was either knowingly untrue, or was in strict accordance with the facts. The result is that the veracity of Ford and Harnsberger was as effectually put in issue by the contradictory testimony of Frazier and McLaurin as it could have been by any possible method of cross-examination. Because Ford and Harnsberger could by no reasonable possibility have been mistaken, the contradiction of their testimony by Frazier and McLaurin certainly bred some suspicion of their veracity, and a removal of such suspicion was a prerequisite to the possibility of a verdict for the defendant. If there can be such a thing as an attack on the character of witnesses for veracity by mere disproof of their statements by conflicting testimony [*321] by other witnesses, then there was such an attack at the trial of this case."
 
6 F.2d at 219-20. It borders on hypocrisy to suggest that, [***27] even though the State alleges and attempts to prove that the defendant committed a crime that indicates untruthfulness, the State has not attacked the defendant's credibility.

   4) Permitting evidence of witnesses' good character for truthfulness absent attack would unduly prolong trials.

   The Advisory Committee's Note on Federal Rule 608(a) states:
 
"Character evidence in support of credibility is admissible under the rule only after the witness' character has first been attacked, as has been the case at common law. The enormous needless consumption of time which a contrary practice would entail justifies the limitation." (Citations omitted).
 
Obviously, permitting a criminal defendant to offer good character for truthfulness in addition to offering the already permitted good character for the trait involved in the crime charged would not involve any "enormous needless consumption of time." It would only expand the already permitted character witnesses' testimony by one or two additional questions about the defendant's character for truthfulness.

   In the instant case, the vice detective testified that drugs were sold to him by the defendant. The defendant testified that he [***28] did not sell the drugs. The issue before the jury was which witness was telling the truth. Despite the equal presumption of truthfulness the law in theory accords each witness, it would be folly not to recognize that police officers generally have an aura of credibility that indicted drug dealers generally lack. If the jurors recognize the premise of cases like Giddens and Pierce that a person who sells drugs "may not take the oath seriously," they may reason that, if Sahin is guilty of drug [**461] dealing, he would lie under oath and testify he was innocent. They may also reason that if Sahin was innocent, he would also testify he was innocent. Therefore, Sahin's denial of guilt is equally likely to be either the expected [*322] lie by a drug dealer or the truth from a truly innocent man. With his denial of guilt being anticipated whether he was guilty or innocent, the jury might give little weight to Sahin's testimony when weighing it against the conflicting testimony of the vice detective. Character evidence that he is a truthful person may be important to give credence to his testimony. Since we already allow Sahin to offer character evidence that he is a law abiding person and therefore[***29] would be unlikely to sell drugs, we also should allow him to offer evidence that he is a truthful person whose testimony ought to be given serious consideration and not just dismissed as the denial of guilt one might expect from a drug dealer. It will not unduly or unnecessarily delay trials to permit defendants charged with veracity impeaching offenses who are already permitted to call character witnesses to additionally elicit from those character witnesses the defendant's good character for truthfulness.

   For the reasons indicated, we hold that the State's charges and evidence that the defendant committed a veracity impeaching offense is an attack on the defendant's character for truthfulness sufficient to permit evidence of good character for truthfulness after the defendant testifies.
 
JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED. CASE REMANDED TO THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY FOR A NEW TRIAL. COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID BY ANNE ARUNDEL COUNTY. 

                       
EUGENE FRANKLIN GOLDSMITH v. STATE OF MARYLAND 
No. 146, September Term, 1993
 
COURT OF APPEALS OF MARYLAND
 
337 Md. 112; 651 A.2d 866; 1995 Md. LEXIS 5
 
   January  12, 1995, Filed

   SUBSEQUENT HISTORY: As Corrected February 9, 1995.

PRIOR HISTORY: [***1] Certiorari to the Court of Special Appeals. (Circuit Court for  Anne Arundel  County). James C. Cawood, Jr., JUDGE.

DISPOSITION: JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED. COSTS TO BE PAID BY PETITIONER.

CORE TERMS:  discovery, privileged, pre-trial, disclosure, subpoena, patient, in camera, proffer, confidential, credibility, counseling, psychologist, defense counsel, psychotherapy, exculpatory, psychotherapist, memory, privileged information, psychotherapist-patient, privacy, constitutional right, relevant information, confrontation, threshold, exculpatory evidence, statutory privilege, inspect, constitutional rights, compulsory process, cross-examination 

COUNSEL: ARGUED BY Mark Colvin, Assistant Public Defender, (Stephen E. Harris (Public Defender) both on brief), both of Baltimore, MD, FOR PETITIONER.
 
ARGUED BY M. Jennifer Landis, Assistant Attorney General, (J. Joseph Curran, Jr., Attorney General, both on brief), both of Baltimore, MD., FOR RESPONDENT.

JUDGES: ARGUED BEFORE Murphy, C.J.; Eldridge, Rodowsky, Chasanow, Karwacki, Bell, and Raker JJ. Opinion by Chasanow, J. Eldridge and Bell, JJ., dissent.

OPINIONBY: CHASANOW

OPINION: [*115]
 
[**868] Opinion by Chasanow, J.
Eldridge and Bell, JJ., dissent.

   The issue this Court must resolve in the instant case is whether Maryland Rule 4-264 or the federal and/or state constitution entitles a defendant charged with child abuse and related sexual offenses to obtain pre-trial discovery review of the victim's psychotherapy records maintained by the victim's private psychotherapist. Our answer is no.

    I.

   The petitioner, Eugene Franklin Goldsmith, was charged with committing sexual child abuse, second degree rape, second and third degree sexual offense, [***2]and unnatural and perverted sexual practices on his adopted stepdaughter, whom we shall call Laura. n1 The criminal information charged that the crimes had been committed on various occasions "on or between January 1, 1978 and December 31, 1981." Laura, who [*116] was 25 years old at the time of trial, testified that the crimes had occurred when she was between the ages of 7 1/2 and 13 or 14. The criminal charges were not instituted until more than 10 years after the alleged commission of the last criminal act.

n1 We use this pseudonym to protect the identity of the victim.

   Aware that the complaining witness was in therapy with a psychologist, the petitioner sought access to her psychotherapy records. Psychotherapy records are privileged under Maryland Code (1974, 1989 Repl. Vol.), Courts and Judicial Proceedings Article, § 9-109, which codifies the privilege for communications between a patient and psychiatrist or psychologist. That privilege, which we will refer to as the "psychotherapist-patient privilege" or simply "the [***3]privilege" is:
 
"(b) Privilege generally. -- Unless otherwise provided, in all judicial, legislative, or administrative proceedings, a patient or his authorized representative has a privilege to refuse to disclose, and to prevent a witness from disclosing, communications relating to diagnosis or treatment of the patient's mental or emotional disorder."
 
§ 9-109. There are six exclusions to the statutory privilege, none of which would be applicable to the instant case. See § 9-109(d)(1)-(6). Therefore, Laura has a psychotherapist-patient privilege which she is unwilling to waive and which is entitled to protection unless and until it must yield to Goldsmith's constitutionally protected rights.

   Goldsmith first filed a "MOTION FOR THE ISSUANCE OF A SUBPOENA FOR PRODUCTION OF TANGIBLE EVIDENCE PRIOR TO TRIAL" pursuant to Md. Rule 4-264. In that motion, he alleged (1) that the complainant has been in treatment with Dr. Gombatz, a psychologist, for over four years, and (2) that a police detective related that it took years of counseling for the complainant to summon the courage to bring these charges against her stepfather.

   The reasons given for the request were:
 
"The issue[***4] involved in the Defendant's demand for the complainant's psychological treatment records is one of credibility. It is important to keep in mind that, unlike the scenario in Zaal[v. State, 326 Md. 54, 602 A.2d 1247 (1992),] [*117] where the victim was a 12 year old child, the complainant in this case is a 25 year old adult who has been in counseling for over four years. The conduct alleged in the criminal information occurred between 1978 and 1981. The Defendant would proffer that the complainant moved from his residence in the summer of 1983. According to the testimony of Detective Madison at the preliminary hearing, the alleged abuse ceased two years prior when the complainant was 15 years old. The Defendant has not seen or had contact with the complainant since 1983. In this situation, the Defendant submits that the Court must give him some latitude in obtaining information that may enable him to confront his accuser in some meaningful way."
 
The defendant requested that a "subpoena be issued pursuant to Md. Rule 4-264" to Michael Gombatz, Ph.D., commanding Dr. Gombatz to produce "all documents including but not limited to reports, summaries, [***5] psychological testing, interview notes, diagnosis, and correspondence, that reflect and relate in any way to your treatment and counseling of [the complainant]." The subpoena [**869] requested the documents and records be produced at the law offices of the defense counsel in Towson, Maryland. The State filed a response alleging the following:
 
"1. A doctor patient privilege exists which can only be waived by the patient. [The complainant] has not waived this privilege. [citing Beckette v. State, 31 Md. App. 85, 355 A.2d 515 (1976)].

2. These records are not subject to the Maryland Rules of Discovery.

3. To allow a victim's psychiatric records to be given to the defense violates her privacy.

4. Her psychiatric records are not relevant to the criminal charges against the defendant."
 
A hearing was held on the defendant's motion, and there was no proffer of any likelihood that relevant information would be obtained by reviewing the records. The proffer made by the defense counsel was as follows:
 
[*118] "Your Honor, I think that what's required under Zaal, and my understanding of it, is a nominal showing of relevance. And[***6] I think here where the issue is going to be the credibility of the Plaintiff, I would say to you that in the affidavit that Detective Madison attached to her arrest warrant of my client, she indicated that the complainant had been in counseling. And we later, at the preliminary hearing, found that it was with Dr. Gombatz for a period of over four years.

   Where the facts are that you have an adult bringing charges that go back over ten years where, obviously, there's a question about the complainant's emotional state, and I think that's tied into the credibility. I mean, I simply don't know what her emotional state is. I think this in a way goes back to the fact that there have been no -- you know, the complainant's mother hasn't been interviewed. We don't know -- other than Detective Madison said today, something about the mother being emotionally unstable. I mean, that's news to me. But I mean, I think it's a fact that needs to be looked into.

   But in terms of confrontation rights, it seems to me that the Defendant, in all the facts of this case, being charged with conduct that happened over a decade ago, where you know that the Defendant has been in counsel -not the Defendant, [***7] the complainant has been in counseling for over four years. I think that the -- I think where credibility is the make or break issue, I think that some relief under Zaal whether that means that the court review these records in camera or preferable to the Defendant, would be that I, under some sort of monitored format, be allowed to look at these records."
 
The substance of the defense counsel's proffer was that the incidents at issue occurred over 10 years prior to trial, that the victim was in counseling, and the defense counsel complained "I simply don't know what her emotional state is." The defendant's motion for issuance of a discovery subpoena to produce records at defense counsel's law office was denied by written order dated September 1, 1992.

   [*119] It is quite clear that the motions judge precluded the pre-trial discovery review of Dr. Gombatz's records. The defense was not precluded from calling Dr. Gombatz when the case actually went to trial. The defendant requested and was issued a subpoena pursuant to Md. Rule 4-265 for Dr. Gombatz to appear and produce his records at trial. The motions judge did not need to determine whether the defendant might be able to elicit[***8] exculpatory evidence from the psychotherapist at trial. Thus, the court did not hold that Laura's privilege outweighed the defendant's constitutional trial rights. As defense counsel made clear on the first day of trial:
 
"[DEFENSE COUNSEL:] The state has filed two motions to quash my subpoena, my trial subpoena duces tecum. One was to a psychologist named Dr. Gombatz. I think that we've resolved ... through discussions with the state I think we have resolved Dr. Gombatz's situation ...

COURT: Okay.

[DEFENSE COUNSEL:] ... which is that he's under subpoena. We've put him on call. If it becomes appropriate during [**870] the course of the trial that I could call him. He's under subpoena."
 
Although Dr. Gombatz was placed on call at trial by agreement of the parties, he was never called to testify.

   At trial, Laura testified that the petitioner sexually abused her for approximately 5 1/2 years, up until she was about 14 years old. She said that the sexual activity, which included fondling, fellatio, cunnilingus, and on one occasion, attempted sexual intercourse, occurred on a regular basis, "more than twice a week." Laura testified that her mother moved out of the [***9] family home when she was 15. She did not tell her mother that Goldsmith had sexually abused her because she felt that her mother would neither have cared nor done anything about it.

   When she was 17 and graduated high school, Laura moved from Goldsmith's home. She testified that at that time she reported the sexual abuse to the Department of Social Services. [*120] That agency's report, which was introduced in evidence, reveals the following:
 
"[Laura] informed Mrs. Purdon that her father had 'thrown her out' after she graduated from high school. She mentioned that her father had sexually abused her when she was 9 years old to 12 years old.... She had an appointment to discuss this with Protective Services, but did not appear. Numerous attempts were made to contact her, however, she did not return any messages. 

This case was not investigated further as the allegations were vague and the 'victim' apparently did not wish to discuss the matter with Protective Services or the police. 

There is insufficient information to pursue this case and no finding is possible. The 181 is completed for statistical purposes only."
 
Laura testified that before going to the Department of[***10] Social Services, she also told her boyfriend about being sexually abused.

   A diary kept by Laura in 1979, 1980 and 1981, was introduced into evidence by the defendant. The entries contain no hint of any sexual activity or impropriety between the defendant and the complaining witness. An entry in 1981 does discuss sexual activity between the complaining witness and a boyfriend, and states that "I'm glad he was my first." Responding to questions about this entry, Laura explained that she did not write about sexual activity with Goldsmith because she shared the books with her friends, allowing them to look at the diary and occasionally even write in it with her. Additionally, she explained that she "wanted to block all of those things from my memory and that's why I talked about it like it was my first time. It was my first time with a boyfriend ... a real boyfriend, somebody who was legitimate to have a sexual relationship with."

   Goldsmith denied sexually abusing his stepdaughter. He testified that he first heard about the allegations approximately five years before trial, when a custody battle with his former wife over his son seemed imminent. He explained that [*121] his former wife told[***11] him that Laura had come forward and said she had been molested by him, his brother, his father, and his uncle. Based on that conversation, and at the suggestion of a lawyer friend, he looked through his stepdaughter's old papers, found her diary, and photocopied the diary.

   Although the jury acquitted him of second degree rape, Goldsmith was found guilty of sexual child abuse, second and third degree sexual offense, and unnatural and perverted sexual practices. He was sentenced to 12 years imprisonment, 6 of which were suspended and, upon his release, placed on 5 years probation, conditioned upon payment of restitution, performing community service and undergoing psychiatric counseling. Goldsmith appealed to the Court of Special Appeals which, in an unreported opinion, vacated the restitution order, but affirmed the remainder of the judgment. We granted certiorari.

   II.
 
   In the instant case, we are called upon to strike a balance between the competing interests of a witness's privilege and a defendant's federal and state constitutional rights to obtain and present evidence necessary to the defense. In weighing these compelling interests, we must keep in mind that an accused has limited[***12] pre-trial discovery rights, [**871] which may not outweigh a witness's privilege, whereas the accused's right to obtain and present exculpatory evidence at trial is entitled to far greater constitutional protection.

   At common law, a criminal defendant had no right to pre-trial discovery. See State v. Haas, 188 Md. 63, 69, 51 A.2d 647, 650 (1947), overruled on other grounds, In re Petition for Writ of Prohibition, 312 Md. 280, 305, 539 A.2d 664, 676 (1988); see also, Wayne R. LaFave & Jerold H. Israel, Criminal Procedure § 20.1, at 836 (2d ed. 1992)("American courts, relying on the English precedent, adopted a common law rule holding that the judiciary lacked any inherent authority to order pre-trial discovery in criminal cases."). Over time, we have expanded the common law and given the trial courts [*122] some authority to either require or permit discovery. See Kardy v. Shook, J., 237 Md. 524, 537, 207 A.2d 83, 90 (1965). Nevertheless, the right to pre-trial discovery is strictly limited to that which is permitted by statute or court rule or mandated [***13] by constitutional guarantees. See 2 Charles E. Torcia, Wharton's Criminal Procedure § 334, at 547 (13th ed. 1990)(noting that "absent a statute providing otherwise, the defendant is not entitled, as a matter of right, to the discovery or inspection of evidence in the possession of the prosecution"). n2 See also LaFave & Israel, Criminal Procedure § 20.2, at 843. We therefore must look to our statutes, court rules, and constitutional requirements to determine the propriety of the present defendant's right to pre-trial discovery.

n2 If a defendant has no right absent a statute or court rule to obtain information in the possession of the prosecution, it follows that he certainly has no such right to discovery of information held by a third party.

   PRE-TRIAL DISCOVERY UNDER MARYLAND RULE 4-264
 
Pre-trial production of "documents" or "other tangible things" under Md. Rule 4-264 is discretionary, requiring a motion and a court order. As such, it does not guarantee a criminal defendant the absolute right[***14] to subpoena and examine the private records of every private individual or entity that may conceivably possess exculpatory records. The rule does not mandate that a defendant have unfettered access to all prior statements of a witness in the form of notes taken by third parties. A judge is given discretion whether to order a subpoena under the rule. Furthermore, Md. Rule 4-264 specifically excludes the discovery of privileged information that is at issue in the present case. The rule states:

   "On motion of a party, the circuit court may order the issuance of a subpoena commanding a person to produce for inspection and copying at a specified time and place before trial designated documents, recordings, photographs, or other tangible things, not privileged, which may constitute or [*123] contain evidence relevant to the action. Any response to the motion shall be filed within five days." (Emphasis added).
 
Thus, nothing in Md. Rule 4-264 permits the discovery of Laura's privileged psychotherapist records.

   Our recent decision in Zaal v. State, 326 Md. 54, 602 A.2d 1247 (1992) also does not provide Goldsmith with a right to pre-trial discovery[***15] in the instant case. In Zaal, we were asked to determine a defendant's pre-trial right to subpoena the school records of his accuser. In reversing a denial of this subpoena, we noted that the alleged victim's school records were confidential but not privileged. Zaal, 326 Md. at 76, 602 A.2d at 1258. We found that "the Maryland regulations do not provide, nor even indicate, that a student's education records are not discoverable pursuant to the Maryland Rules." Id. In contrast, in the present case, psychotherapist records are privileged under § 9-109 and Md. Rule 4-264 specifically precludes such privileged records from pre-trial discovery. Our decision in Zaal did not pertain to or authorize pre-trial discovery of privileged records. Thus, we hold that Md. Rule 4-264 means what is says and precludes pre-trial discovery of a victim's privileged psychotherapist-patient records. We now consider whether Goldsmith has any constitutional right to the pre-trial discovery he seeks.

   [**872] CONSTITUTIONAL RIGHT TO PRE-TRIAL DISCOVERY
 
The Supreme Court has not recognized a constitutional right to pre-trial discovery. In Weatherford v. Bursey, 429 U.S. 545, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977),[***16] the Court said:
 
"There is no general constitutional right to discovery in a criminal case, and Brady [v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)] did not create one; as the Court wrote recently, 'the Due Process Clause has little to say regarding the amount of discovery which the parties must be afforded....' Wardius v. Oregon, 412 U.S. 470, 474, 93 S.Ct. 2208, 2212, 37 L.Ed.2d 82 (1973). "
 
[*124] Weatherford, 429 U.S. at 559, 97 S.Ct. at 845-46, 51 L.Ed.2d at 42.

   In Pennsylvania v. Ritchie, 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987), the Supreme Court dealt with the issue of a criminal defendant's pre-trial access to confidential state agency records. The defendant was charged with criminal sexual assault on his daughter. He sought access to the records of the Pennsylvania Children and Youth Services (CYS), which was the state agency charged with investigating child abuse. A statute made the records confidential, but[***17] provided CYS may disclose reports pursuant to a court order. The trial court did a partial in camera review of the records and refused to order disclosure. The Pennsylvania Supreme Court reversed and concluded that defense counsel was entitled to review the entire file for useful evidence. The Supreme Court reversed in part and affirmed in part the judgment of the Pennsylvania Supreme Court. Ritchie, 480 U.S. at 61, 107 S.Ct. at 1003, 94 L.Ed.2d at 60. A majority of the United States Supreme Court held that the defendant did not have a right to full access to the records and in camera examination by the trial judge could satisfy any federal constitutional rights the defendant may have to obtain exculpatory information from the agency's records. Id. A significant difference between Pennsylvania v. Ritchie and the instant case is that the records in Ritchie were those of a government agency. The holding in Ritchie was based at least in part on due process and the prosecution's obligation to turn over evidence in its possession which is favorable to the accused and material to guilt. Ritchie, 480 U.S. at 57-58, 107 S.Ct. at 1001-02, 94 L.Ed.2d at 57-58. [***18] The Court also stated: "We express no opinion on whether the result in this case would have been different if the statute had protected the CYS files from disclosure to anyone, including law-enforcement and judicial personnel." 480 U.S. at 57 n.14, 107 S.Ct. at 1001 n.14, 94 L.Ed.2d at 57 n.14. Another difference in Ritchie was that the Pennsylvania statute making the CYS records confidential created only a qualified privilege similar to the qualified privilege created for the school records in Zaal. Additionally, [*125] the statutes in Ritchie and Zaal permitted disclosure pursuant to a court order. The Supreme Court noted: "This is not a case where a state statute grants CYS the absolute authority to shield its files from all eyes.... Given that the Pennsylvania Legislature contemplated some use of CYS records in judicial proceedings, we cannot conclude that the statute prevents all disclosure in criminal prosecutions." 480 U.S. at 57-58, 107 S.Ct. at 1001, 94 L.Ed.2d at 57-58 (emphasis in original).

   In Zaal, this Court discussed the Supreme Court[***19] holding in Ritchie . We recognized that the Supreme Court "rejected defendant's confrontation clause argument, reasoning that it is a trial right, not one applicable to discovery." Zaal, 326 Md. at 67 n.6, 602 A.2d at 1253 n.6 (citing Ritchie, 480 U.S. at 52, 107 S.Ct. at 999, 94 L.Ed.2d at 54). We adopted the Supreme Court's due process analysis and recognized that in Zaal, as well as in Ritchie, there may be a denial of due process when the government's records containing potentially exculpatory information were withheld from an accused. We stated in Zaal that the "issue in the case sub judice, as was also the case in Ritchie, is a file required to be kept by a State agency...." 326 Md. at 80, 602 A.2d at 1260.

   In Avery v. State, 15 Md. App. 520, 292 A.2d 728 (1972), appeal dismissed, 410 U.S. 977, 93 S.Ct. 1499, 36 L.Ed.2d 173 (1973), the Court of Special Appeals upheld a trial court's denial of defendant's[***20] motion to compel [**873]production of psychiatric records of a victim where the victim claimed the records were privileged. The court held the psychiatrist was not a State agent and stated: "Where, as here, the witness claimed the privilege, no suppression of evidence by the State is involved within the contemplation of such cases as Brady v. Maryland, 373 U.S. 83, 10 L.Ed.2d 215, 83 S.Ct. 1194 [(1963)] or Giles v. Maryland, 386 U.S. 66[, 87 S.Ct. 793, 17 L.Ed.2d 737 (1967)]." Avery, 15 Md. App. at 537, 292 A.2d at 741.

   As in Avery, the psychotherapist-patient privileged records at issue in the instant case were not kept by a state agency or required to be kept by a state agency. Therefore [*126] no disclosure is required under Brady. n3 Thus, not only does Md. Rule 4-264 prohibit discovery of the privileged records requested by Goldsmith, but nothing in Ritchie, Zaal, or Avery would constitutionally require the pre-trial discovery sought by Goldsmith of a private psychotherapist's records which are "shielded [***21] from all eyes," state or defense.

 n3 We further note that pre-trial discovery of Laura's records is not provided for under the Jencks Act, 18 U.S.C. § 3500 (1982), which requires that after a witness testifies, prior statements in the state's possession must be disclosed to the defense. The Jencks Act constitutes a trial right rather than a discovery right. It requires that a witness testify before his or her statements are disclosed. See Collins v. State, 318 Md. 269, 568 A.2d 1, cert. denied, 497 U.S. 1032, 110 S.Ct. 3296, 111 L.Ed.2d 805 (1990); Carr v. State, 284 Md. 455, 397 A.2d 606 (1979). Further, only those statements in the hands of the state are discoverable. See Bruce v. State, 318 Md. 706, 725-26, 569 A.2d 1254, 1264 (1990). In the instant case, Goldsmith was denied a pre-trial subpoena for psychotherapist records. He was not denied a trial subpoena for Dr. Gombatz, the psychotherapist. Additionally, the psychotherapist records in the instant case were not in the hands of the state.

[***22]

   Finally, numerous decisions of this Court have held that in a criminal case neither the State nor the defendant have unlimited pre-trial discovery rights. Those decisions have also made it clear that a criminal defendant has no right to pre-trial discovery by deposition or other forms of pre-trial discovery for information possessed by third parties.

   In Evans v. State, 304 Md. 487, 499 A.2d 1261 (1985), a death penalty case, Judge Eldridge, writing for the Court, pointed out that it is "clear that the defendant had no right to insist upon a pretrial deposition or pretrial interrogation of [the witness] and that the trial judge did not err in quashing the subpoena that would have required [the witness] to attend the pretrial hearing." 304 Md. at 509, 499 A.2d at 1272. Similarly, in Kardy, supra, this Court held that a criminal defendant has neither a state nor federal constitutional right to take the deposition of a potential witness. We also stated:
 
"The defendant and his counsel are at perfect liberty, as they always have been in this State, [***23] to interview and interrogate any prospective witness, subject, of course, to [*127] the witness' acquiescence in such interrogations. And the defendant and his counsel may take an affidavit from any prospective witness, if the witness be willing. But these matters are entirely different from forcing and requiring a witness to make a pre-trial deposition." (Emphasis added).
 
237 Md. at 541, 207 A.2d at 92-93. n4 

n4 We note that most jurisdictions have held that a criminal defendant is not entitled to take discovery depositions of potential witnesses. Denial of such depositions have been held not to violate a defendant's constitutional rights to due process, compulsory process for obtaining witnesses, equal protection, or confrontation. See Annotation, Romualdo P. Eclavea, Accused's Right to Depose Prospective Witnesses Before Trial in State Court, 2 A.L.R.4th 704 (1980).

   Neither due process, compulsory process nor the right to confront adverse [***24]witnesses establishes a pre-trial right of a defendant to discovery review of a potential witness's privileged psychotherapy records. Thus, we find no common law, court rule, statutory or constitutional requirement that a defendant be permitted pre-trial discovery of privileged records held by a third party.
 
PRIMA FACIE SHOWING REQUIRED FOR PRE-TRIAL DISCOVERY OF NON-PRIVILEGED RECORDS

   Even if the records in the instant case were not privileged, but were merely confidential, we would nonetheless hold that the [**874] motions judge did not abuse his discretion in declining to issue the pre-trial subpoena and declining an in camera review of those records.

   In a very recent case, Harris v. State, 331 Md. 137, 626 A.2d 946 (1993), Judge Bell, writing for the Court, stated:
 
"To be sure, a party to ongoing litigation may subpoena, without advance notification having to be given to the other party, a third party's records for use at the trial. When, however, the records sought are 'confidential,' before disclosure will be ordered, the moving party must show, usually at a hearing, some connection between the records sought, [*128] the issue before [***25]the court, and the likelihood that information relevant to the trial would be discovered. Zaal v. State, 326 Md. 54, 83, 602 A.2d 1247, 1261 (1992)." (Emphasis added).
 
Harris, 331 Md. at 161, 626 A.2d at 958. In Zaal, we also recognized that "to overcome a privacy interest in ... records, some relationship must be shown between the charges, the information sought, and the likelihood that relevant information will be obtained as a result of reviewing the records." 326 Md. at 81-82, 602 A.2d at 1261. Thus, to obtain pre-trial discovery of confidential records, Zaal and Harris require the defendant to show a likelihood of obtaining relevant information.

   Zaal and Harris both establish that with confidential records, it is the defendant who bears the burden of establishing the need for pre-trial disclosure. See Zaal, 326 Md. at 83, 602 A.2d at 1261; Harris, 331 Md. at 161, 626 A.2d at 958. In the instant case, Goldsmith did not establish[***26] a need for the records. Goldsmith asserted only that Laura's credibility would be an issue at trial. He did not establish that discovery of the records would likely lead to relevant information. Rather, he sought "some latitude in obtaining information that may enable him to confront his accuser in some meaningful way." There was no showing of any likelihood of obtaining information relevant to the defense in the records. n5 In addition, there clearly was no repressed memory syndrome in the instant case. The records of the Department of Social Services establish that the victim had reported the sexual abuse [*129]to that Department years before she went into counseling. Even before she went to the Department of Social Services, she confided to her boyfriend about her stepfather's sexual abuse. The only thing her therapy did was give her the courage to renew the charges she made years before to the Department of Social Services. Goldsmith did not meet his burden to establish "the likelihood that relevant information will be obtained as a result of reviewing the records." Zaal, 326 Md. at 82, 602 A.2d at 1261. Thus, even had the requested [***27]records not been privileged, the motions judge did not abuse his discretion in determining not to issue the requested pre-trial discovery subpoena.

n5 In his dissent, Judge Bell asserts that Goldsmith's proffer of relevance was sufficient under Zaal v. State, 326 Md. 54, 602 A.2d 1247 (1992) and Department of Social Services v. Stein, 328 Md. 1, 612 A.2d 880 (1992), in part because he established that "the psychologist's records might show that the victim was delusional." After the State contended that the victim was "entitled to her privacy," defense counsel remarked "suppose she's delusional, Your Honor" to which the State replied: "Oh, suppose anything. This is all fishing in the dark," and defense counsel responded: "Well, that's right." Nowhere is there the remotest suggestion from anyone that the victim was in fact delusional. Merely stating "suppose" the victim did this or said that is not a proffer sufficient to establish a need for the records.

[***28]

   DISCLOSURE OF PRIVILEGED RECORDS AT TRIAL

   Although we found no constitutional right to pre-trial discovery of the records at issue in the present case, we wish to distinguish between a defendant's right of access to information during pre-trial discovery as opposed to the defendant's constitutionally based right at trial to fairly present a defense. In holding that a defendant has no right to pre-trial discovery of privileged records held by a third party, we recognize that the defendant's constitutional rights at trial may outweigh the victim's right to assert a privilege. We note that the Supreme Court has found that there are circumstances where, at trial, the right to claim a privilege must yield to a defendant's constitutional rights to confrontation and compulsory process. [**875] See Davis v. Alaska, 415 U.S. 308, 319, 94 S.Ct. 1105, 1112, 39 L.Ed.2d 347, 355 (1974)(holding that "the right of confrontation is paramount to the State's policy of protecting a juvenile offender"); see also Com. v. Two Juveniles, 397 Mass. 261, 491 N.E.2d 234, 238 (Mass. 1986)(considering the need[***29] for disclosure of communications to sexual assault counselor and noting that "in certain circumstances the absolute privilege ..., must yield at trial to the [*130]constitutional right of a criminal defendant to have access to privileged communications"). n6

n6 For a discussion of the difficulties of balancing testimonial privileges against the defendant's constitutional rights at trial, see Robert Weisberg, Defendant v. Witness: Measuring Confrontation and Compulsory Process Rights Against Statutory Communications Privileges, 30 Stan. L. Rev. 935 (1978).

   In the instant case, Goldsmith was denied a pre-trial discovery subpoena for records under Md. Rule 4-264, the issuance of which would have abrogated the psychotherapist-patient privilege in order to secure pre-trial discovery leads. Goldsmith was issued, not denied, a trial subpoena duces tecum pursuant to Md. Rule 4-265 for Dr. Gombatz and his records. We note that Md. Rule 4-265, like Md. Rule 4-264, precludes the use of[***30] a subpoena to obtain privileged records. However, as distinguished from our analysis of the defendant's right to pre-trial discovery information, the defendant's constitutional rights to a fair trial may outweigh the right of the victim to assert a privilege at the trial stage. Therefore, although we hold that the psychotherapist-patient privilege protects a doctor from having to furnish information for pre-trial discovery review, the privilege may not always protect a doctor from furnishing exculpatory evidence at trial pursuant to a trial subpoena or subpoena duces tecum under Md. Rule 4-265. n7 

n7 There is another analogous area where this Court has held that there is no right to pre-trial discovery of records, but if a trial subpoena is issued, then upon a proper showing there may be a right to an in camera review of the records. For example, in Martinez v. State, 309 Md. 124, 140, 522 A.2d 950, 960 (1987) and Jones v. State, 297 Md. 7, 14-15, 464 A.2d 977, 982 (1983), we noted that a defendant may not be entitled to pre-trial disclosure of a witness's grand jury testimony, but the defendant may be entitled to the witness's grand jury testimony for cross-examination purposes after the witness testifies at trial or at a suppression hearing.

[***31]

   There are reasons for not permitting pre-trial discovery of privileged information, but permitting, on proper showing, trial production of privileged exculpatory evidence. As one court recognized with regard to pre-trial discovery of privileged information:
 
[*131] "We note the prematurity of this issue. At this time, we do not know whether the victim will testify, nor to what she would testify at the time of trial. Any decision on the merits of the issue at this time would, of necessity, be speculative."
 
People v. Dist. Court, City & Cty. of Denver, 719 P.2d 722, 726 n.2 (Colo. 1986). After the victim testifies on direct examination, the trial judge will be in a better position to evaluate what is exculpatory evidence and what is irrelevant. The balancing of the defendant's need for exculpatory information against the need to protect the victim's psychotherapist-patient privilege will be a much more informed decision at trial.

   In addition, a subpoena for tangible evidence before trial under Md. Rule 4-264 is only for documents or other tangible evidence; it is not a subpoena for witnesses and it does not permit examination of witnesses. Thus, [***32] if we were to permit pre-trial in camera review in the instant case, assuming the victim had hourly psychotherapy once a week for four years and that Dr. Gombatz kept detailed notes of those sessions, the trial judge would have to review in camera the notes of approximately 200 hours of therapy sessions. In contrast, a trial subpoena duces tecum under Md. Rule 4-265 covers the witness as well as documents or tangible evidence. Therefore, when conducting an in camera review under Md. Rule 4-265, the trial judge may be able to enlist the psychotherapist's assistance in locating relevant portions of the notes, as well as interpreting the notes. Thus, an in camera examination of the witness and the records summonsed at trial under Md. Rule 4-265 is far more efficient than an in camera review of the records alone subpoenaed pre-trial under Md. Rule 4-264. Furthermore, a trial subpoena [**876] is used to secure specific relevant information in a case that is actually going to trial. In considering whether to quash a trial subpoena or to conduct an in camera examination pursuant to a trial subpoena, the trial judge will know that the case is going to trial and that the[***33] privileged material will actually be needed for a trial defense. In addition, the trial judge will be in a better position to [*132] determine what the contested issues are and evaluate the relevancy of the information the defense is seeking. It is conceivable that a trial subpoena under Md. Rule 4-265 for a witness and documents, which may be privileged, could be reviewed pre-trial on a motion to quash or a motion for a protective order. Even if we assume the motions judge was ruling on a motion to quash a trial subpoena for exculpatory evidence, there was no error in denying disclosure with or without in camera review because Goldsmith did not satisfy the strong burden of proof needed to establish the necessity for the privileged information sought. In Zaal, we required a showing of the "likelihood that relevant information will be obtained as a result of reviewing the records" in order to obtain pre-trial disclosure of merely confidential records. 326 Md. at 82, 602 A.2d at 1261. Because of the privileged nature of the records involved in the present case, the burden of proof required of the defendant to establish a need for disclosure[***34] may be higher than that required in Zaal. In Two Juveniles, supra, the Supreme Judicial Court of Massachusetts assessed the required showing for a defendant to override a statutory absolute privilege for juvenile records. The court recognized that "in general, an assertion that inspection of information is needed only for a possible attack on credibility has been rejected because, if upheld, such a broad right of discovery would substantially destroy the privilege." Two Juveniles, 491 N.E.2d at 239. In Com. v. Clancy, 402 Mass. 664, 524 N.E.2d 395 (Mass. 1988), the Supreme Judicial Court of Massachusetts further clarified:
 
"the individual seeking to override the privilege of another bears the burden of establishing a legitimate need for the privileged information sought. [Two Juveniles, 397 Mass. 261, 491 N.E.2d 234,] 269, 491 N.E.2d 234. Cf. United States v. Valenzuela-Bernal, 458 U.S. 858, 867, 102 S.Ct. 3440, 3446, 73 L.Ed.2d 1193[***35] [(1982)](defendant must make some plausible showing of how the testimony of witnesses claimed to be necessary under the compulsory process guarantee of the Sixth Amendment would have been both material and favorable to defense). We also warned that this burden would not be [*133] met simply by a showing that the information was likely to be relevant, material, or unavailable from other sources. [Two Juveniles,] 397 Mass. at 269, 491 N.E.2d 234. See State v. Agurs, 427 U.S. 97, 109-110, 96 S.Ct. 2392, 2400, 49 L.Ed.2d 342 (1976)(mere possibility that undisclosed information might aid defense does not establish materiality)."
 
 524 N.E.2d at 398.

   As we previously indicated, there was an insufficient showing by Goldsmith of the likelihood that the records contained exculpatory information. The mere assertion that the records in question may contain evidence useful for impeachment is insufficient to override an absolute statutory privilege, even at the trial stage. We agree with the Supreme Court of Michigan that in assessing a defendant's[***36] right to privileged records, the required showing must be more than the fact that the records "may contain evidence useful for impeachment on cross-examination. This need might exist in every case involving an accusation of criminal sexual conduct." People v. Stanaway, 446 Mich. 643, 521 N.W.2d 557, 576 (Mich. 1994)(footnotes omitted). We cannot permit a privilege to be abrogated even at the trial stage by the mere assertion that privileged records may contain information relevant to credibility. To do so would virtually destroy the psychotherapist-patient privilege of crime victims. It has long been recognized that privileges, by their very nature, restrict access to information which would otherwise be disclosed. See 1 McCormick on Evidence § 72, at 269 (John W. Strong ed., 4th ed. 1992). The rationale for this restriction has been our recognition of the social importance of protecting the privacy encompassed by specified relationships. Such privacy interests cannot be negated by the mere assertion of the possibility of impeachment [**877] evidence. A defendant's constitutional rights to a fair trial simply do not stretch that far.
[***37]  
We therefore hold that in order to abrogate a privilege such as to require disclosure at trial of privileged records, a defendant must establish a reasonable likelihood that the privileged records contain exculpatory information necessary [*134] for a proper defense. n8 In the present case, the defendant did not establish the likelihood that the records sought would provide exculpatory information. n9 At most, Goldsmith made [*135] only a speculative assertion that the records might be relevant for impeachment. He had no right to pre-trial discovery review of the privileged records and he failed to establish the requisite need to warrant a judge ordering disclosure of the privileged information at trial.

n8 We note that Connecticut, Nebraska, and Michigan courts have held that, once a defendant satisfies this burden of establishing the need for the privileged materials, the witness claiming the privilege must waive the privilege to permit in camera review of the privileged records. Failure to waive the privilege to permit in camera review results in the witness's testimony being stricken. See People v. Stanaway, 446 Mich. 643, 521 N.W.2d 557, 577 (Mich. 1994); State v. Whitaker, 202 Conn. 259, 520 A.2d 1018, 1025 (Conn. 1987); State v. Trammell, 231 Neb. 137, 435 N.W.2d 197, 201 (Neb. 1989).

[***38] 

n9 In Com. v. Bishop, 416 Mass. 169, 617 N.E.2d 990 (Mass. 1993), the Supreme Judicial Court of Massachusetts recommended a five-stage procedure for balancing a witness's right to claim a privilege against the defendant's constitutional trial rights in rape or sexual abuse cases. 1) When a defendant moves to compel production of records and the witness claims a privilege, the judge must determine whether the records are in fact privileged and provide an explanation of his or her findings. Bishop, 617 N.E.2d at 997. 2) If the records are found to be privileged, defense counsel must submit in writing to the judge "the theory or theories under which the particular records sought are likely to be relevant to an issue in the case." Id. The judge should deny the request if "the judge decides that the records are not likely to be relevant or that the defendant's request is supported only by a desire to embark on 'an unrestrained foray into confidential records in the hope that the unearthing of some unspecified information would enable [the defendant] to impeach the witness.'" Bishop, 617 N.E.2d at 997-98 (citation omitted). If the judge accepts the defendant's proffer, the judge must review the records in camera, designating which portions of the records are relevant or irrelevant. Bishop, 617 N.E.2d at 998. (Cf. footnote 8). 3) The judge must then provide access to the defense and prosecution as officers of the court to relevant portions of the records "for the sole purpose of determining whether disclosure of the relevant communications to the trier of fact is required to provide the defendant a fair trial." Id. 4) The defendant has the burden to establish that disclosure of the relevant portions of the privileged information sought is necessary to provide the defendant with a fair trial. Only if the defendant meets this burden shall the judge allow such disclosure. In making this determination, the judge should identify all information not disclosed and "shall base his or her decision on written motions by the parties and an in camera hearing as the judge deems necessary." Id. 5) Finally, "the judge shall determine the admissibility of the records that counsel may wish to introduce in a voir dire examination. In considering the admissibility of the records the judge shall be mindful of the requirements of the rape shield statute [Mass. Gen. L. ch. 233, § 21B (1992)]." Id. The court noted that the duty of the court to disclose material information is ongoing, and the court should disclose information initially withheld should it later become material. Id. (citing Pennsylvania v. Ritchie, 480 U.S. 39, 60, 107 S.Ct. 989, 1003, 94 L.Ed.2d 40, 59 (1987)).

[***39]

 
JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED. COSTS TO BE PAID BY PETITIONER. 

DISSENTBY: BELL

DISSENT:  
DISSENTING OPINION BY Bell, J., in which Eldridge, J. joins.
 
Distinguishing between pretrial discovery of privileged records and at trial disclosure of such records, ostensibly recognizing the latter as protected by the defendant's constitutional right to present a defense, see Majority Op. at 19, the majority holds that "no common law, court rule, statutory or constitutional requirement [provides] that a defendant be permitted pre-trial discovery of privileged records held by a third party." Majority Op. at 16. This holding impermissibly resolves an issue not decided by the courts below or presented by our grant of certiorari, Clark v. State, 306 Md. 483, 510 A.2d 243 (1986), cert. denied, 479 U.S. 1084, 107 S.Ct. 1286, 94 L.Ed.2d 144 (1987); see Clark v. Elza , 286 Md. 208, 406 A.2d 922 (1979); Squire v. State, 280 Md. 132, 368 A.2d 1019 (1977); Williams v. New York Life Ins. Co., 122 Md. 141, 89 [***40]A.97 (1913); Stansbury v. Keady, 29 Md. 361 (1868); see also Maryland [**878] Rule 8-131(b). n1 The majority also misreads, if not disregards, this Court's holding in Zaal v. State, 326 Md. 54, [*136] 602 A.2d 1247 (1992), and premises its holding on a distinction without a difference. Consequently, I dissent.

n1 I do recognize, however, because it uses the term, "ordinarily", that this Court has interpreted Maryland Rule 8-131(b) as occasionally permitting the decision of cases upon issues not previously raised. See Crown Oil & Wax Co. v. Glen Constr. Co., 320 Md. 546, 578 A.2d 1184 (1990); Yarema v. Exxon Corp., 305 Md. 219, 503 A.2d 239 (1986); Taub v. State, 296 Md. 439, 463 A.2d 819 (1983). The majority does not purport to exercise its discretion in that regard; rather, it proceeds as if the issue it chooses to base its decision upon was raised and decided throughout the litigation.

[***41]

   I.

   According to the majority, 
 
The issue this Court must resolve in the instant case is whether Maryland Rule 4-264 or the federal and/or state constitution entitles a defendant charged with child abuse and related sexual offenses to obtain pre-trial discovery review of the victim's psychotherapy records maintained by the victim's private psychotherapist. 
 
Majority Op. at 1. This formulation of the issue apparently is based on the facts that the motions court's ruling was on the petitioner's "motion for the issuance of a subpoena for production of tangible evidence prior to trial" and that, subsequent to that ruling, the petitioner "requested and was issued a subpoena pursuant to Maryland Rule 4-265 for Dr. Gombatz to appear and produce his records at trial." Id. at 5. Resolving the issue as formulated, the majority concludes:
 
It is quite clear that the motions judge precluded the pre-trial discovery review of Dr. Gombatz's records. The defense was not precluded from calling Dr. Gombatz when the case actually went to trial.... The motions judge did not need to determine whether, the defendant might be able to elicit exculpatory evidence from the psychotherapist[***42] at trial. Thus, the court did not hold that Laura's privilege outweighed the defendant's constitutional trial rights.
 
Id.

   The majority has set up a highly vulnerable straw person, which it has proceeded easily to knock down. While, among its reasons for asking that the petitioner's subpoena for the psychotherapist's records be quashed, the State argued that the records are not subject to the Maryland Rules of Discovery, it did not make the argument, on the basis of which the majority affirms the trial court. In the trial court, neither party drew the distinction between a Rule 2-264 subpoena and a Rule 2-265 subpoena. Indeed, the only support the majority [*137] offers for the distinction and its conclusion that the trial court's ruling was based on that distinction is the colloquy in which the petitioner's counsel acknowledged reaching an agreement with the State in response to the State's motion to quash his "trial subpoena duces tecum." The petitioner's counsel did not, in that colloquy, concede the distinction the majority draws, he merely indicated that Dr. Gombatz would be called "if it becomes appropriate during the course of the trial that I could call him."

   Nor was [***43] the distinction the basis for the motions court's ruling. This is understandable because that was not the focus of the argument in the Circuit Court for Anne Arundel County. Certainly the majority does not direct our attention to anything in the record which would indicate that it was because the motion was a pretrial discovery motion, rather than an at trial subpoena duces tecum, that prompted the court's ruling. The record, in fact, belies the majority's conclusion in that regard. Having subpoenaed "all documents including but not limited to reports, summaries, psychological testing, interview notes, diagnosis, and correspondence, that reflect and relate in anyway to [Dr. Gombatz's] treatment of [the complainant]," the petitioner argued that access to these records, either directly through his counsel or by in-camera review by the court was necessary effectively to confront the complaining witness and defend himself against her accusations. It was in this context that the petitioner proffered:
 
Your Honor, I think that what's required under Zaal, and my understanding of it, is [**879] a nominal showing of relevance. And I think here where the issue is going to be the credibility[***44] of the plaintiff, I would say to you that in the affidavit that Detective Madison attached to her arrest warrant of my client, she indicated that the complainant had been in counseling. And we later, at the preliminary hearing, found that it was with Dr. Gombatz for a period of over four years. 

   Where the facts are that you have an adult bringing charges that go back over ten years, where there's obviously, [*138] there's a question about the complainant's emotional state, and I think that's tied into the credibility. I mean, I simply don't know what her emotional state is. I think this in a way goes back to the fact that there have been no - you know, the complainant's mother hasn't been interviewed. We don't know - other than what Detective Madison said today, something about the mother being emotionally unstable. I mean, that's news to me. But I mean, I think it's a fact that needs to be looked into.

   But in terms of confrontation rights, it seems to me that the Defendant, in all the facts of this case, being charged with conduct that happened over a decade ago, where you know that the Defendant has been in counsel -not the Defendant, the complainant has been in counseling for[***45] over four years. I think that the -- I think where credibility is the make or break issue, I think some relief under Zaal whether that means that the court review these records in-camera or preferable to the Defendant, would be that I, under some sort of monitored format, be allowed to look at these records. 
  
Significantly, the petitioner's counsel referred to the Zaal case as well as the petitioner's confrontation rights.

   The motions court responded in a consistent fashion when ruling on the motion. Rather than focus on the distinction between a pretrial discovery right and at trial disclosure, the court distinguished between a witness' ability to perceive and a witness' veracity, reasoning that review of the privileged records hinged upon the former, rather than the latter:
 
The Court: Due process will set aside the privilege -- will require the privilege of patient-doctor to be set aside if it's a question of perception, if it's a question of credibility in the sense of a person being able to perceive things. But on your issue such as what you started to say was, "Oh, well suppose she had never told the doctor about this before," that has nothing to do with [***46]perception. That might have to do with -- *** it might have to do with her credibility or honesty, yes. But you're not going to get -due process will not allow -- will not require the privilege to be set aside for [*139] that purpose *** If it's a capacity issue, you get it. If it's not capacity, you don't. Capacity to perceive.
 
The Court of Special Appeals affirmed the judgment of the circuit court. Rather than affirm on the pretrial/at trial dichotomy upon which the majority relies, it did so on the alternative bases that the trial court was without power "to override the victim's refusal to waive the patient/psychologist privilege" and that "the trial court's decision not to do so [in this case] was a proper exercise of discretion." Slip Op. at 9. It was to gain review of those two issues that the petitioner sought, and we granted, certiorari. n2 

n2 The questions presented in the cert. petition were:
 
1. Did the trial court err in refusing either to permit defense counsel to inspect the records of the complainant's treating psychologist or to conduct an in camera review of the record itself?

2. Did the trial court err in instructing the jury in response to the jury's question asking if an ex-wife can testify against her former husband?
 
We granted certiorari to consider only the first question.

[***47]

   Zaal is particularly relevant to the issues this case actually presents: Whether the psychologist/patient privilege is absolute -remains inviolate even in the face of a defendant's legitimate and reasonable need to discover arguably useful information protected by the privilege - and whether the procedure we enunciated in that case strikes a proper balance between a victim's privacy interests in confidential records and the due process [**880] discovery rights of a defendant. n3 Zaal involved [*140] the propriety of a defendant charged with child sexual abuse obtaining the pretrial discovery, for relevant impeachment information, of the school records of the child he was accused of abusing, when regulations promulgated to implement the timely Education Rights and Privacy Act of 1974 made "manifest that 'confidentiality and privacy of the student's education records are important considerations.'" Id., 326 Md. at 76, 602 A.2d at 1258. 

n3 The majority "holds that Maryland Rule 4-264 means what it says and precludes pre-trial discovery of a victim's privileged psychotherapist-patient records." Majority Op. at 11. By way of distinguishing that case from this one, it makes much of the fact that the records in Zaal v. State, 326 Md. 54, 602 A.2d 1247 (1992) were educational records, discoverable pursuant to a judicial order or lawfully issued subpoena, as opposed to being records subject to a statutory privilege and of the fact that we acknowledged in Zaal that the regulations did not preclude discovery pursuant to the Maryland Rules. Of course we recognized, as the State points out, that the trial court's ruling was not based on the applicability of a privilege; rather, it was premised on the general right to privacy provided by the regulations. It is perhaps of some interest to note that Black's Law Dictionary defines a confidential communication as:
 
Privileged communications such as those between spouses, physician-patient, attorney-client, confessor-penitent, etc. Such are privileged at the option of the spouse-witness, client-witness and penitent-witness. [A] Confidential communication is [a] statement made under circumstances showing that [the] speaker intended [the] statement only for [the] ears of [the] person addressed; thus if [a] communication is made in [the] presence of [a] third party whose presence is not reasonably necessary for the communication, it is not privileged.
 
Black's Law Dictionary 298 (6th ed. 1990). Similarly, privileged communications are defined as:
 
Those statements made by certain persons within a protected relationship such as husband-wife, attorney-client, priest-penitent and the like which the law protects from forced disclosure on the witness stand at the option of the witness, client, penitent, spouse...
 
Id. at 1198. As these definitions make clear, there is considerable overlap between a privileged communication and a confidential one. What perhaps distinguishes one from the other is the degree of sensitivity involved.

[***48]

   To be sure, the primary focus in Zaal was on when the defendant himself, through counsel, should have direct access to the records. See Id. at 82, 602 Md. at 1261. This was so because the trial court resolved the threshold issue, the issue herein presented, in favor of the defendant. So it was that we discussed the special problem that cases turning on credibility pose discerning what evidence is impeachment evidence -, id., and, with an eye toward providing judges with "remedies which will take account of the rights of the accused and, at the same time, protect the interest of the victims," id. at 86, 602 A.2d at 1263, formulated options other than in camera inspection by the judge alone, to be used in the review of confidential, sensitive matters. Id. at 84-87, 602 A.2d at 1262-1263.

   The majority recognizes that Zaal involved pretrial discovery. n4 [*141] To rationalize the result it reaches in this case, as opposed to that reached in Zaal, the majority suggests that Zaal, like Pennsylvania v. Affirm, 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987), "'rejected defendant's confrontation clause [***49] argument, reasoning that it is a trial right, not one applicable to discovery.'" Majority Op. at 13, quoting Zaal, 326 Md. at 67 n.6, 602 A.2d at 1253 n.6, citing Affirm, 480 U.S. at 52, 107 S.Ct. at 999, 94 L.Ed.2d at 54. It then asserts that the Zaal court adopted the Supreme Court's due process analysis, thus recognizing that "there may be a denial of due process when the government's records containing potentially exculpatory information [**881] were withheld from an accused." Id. at 13. The majority also relies upon Avery v. State, 15 Md. App. 520, 292 A.2d 728 (1972), appeal dismissed, 410 U.S. 977, 93 S.Ct. 1499, 36 L.Ed.2d 173 (1973). 

n4 The majority recognizes that "it is conceivable that a trial subpoena under Md. Rule 4-265 for a witness and documents, which may be privileged, could be reviewed pre-trial on a motion to quash or a motion for a protective order." Majority Op. at 22. Rather than simply recognizing that this is precisely what was sought to be done, it persists in continuing on the frolic it has chosen to pursue. This is reflected in the review standard it formulates: "a reasonable likelihood that the privileged records contain certain exculpatory information necessary for a proper defense." Majority Op. at 24-25. As I understand that standard, without the benefit of reviewing the records, the defendant must be able to identify exactly what exculpatory evidence is being sought and the court must be able to inquire about exactly how that evidence would be exculpatory. The majority requires, in short, that the defendant be able to meet an impossible burden.

[***50]

   To be sure, in the Zaal decision, we reviewed the Affirm decision in some detail. A major part of that review was in connection with our consideration of the issue of the extent to which an advocate should be afforded the opportunity to inspect confidential information for possible use in cross-examination. See Part IV of Zaal, 326 Md. at 81-87, 602 A.2d at 1260-1263. It was in this context that we acknowledged the similarities, factually, between Zaal and Affirm; indeed, we expressed the view that "procedurally, this case and Affirm are quite similar." Id. at 81, 602 A.2d at 1260. At the same time, however, we reviewed, again in some detail, Carr v. [*142] State, 284 Md. 455, 397 A.2d 606 (1979), in which we used the Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), analysis to resolve the issue "whether under the facts and circumstances of his criminal trial [a defendant] had a right to obtain and use the written statements of a State's witness for[***51] purposes of cross-examination or impeachment," id. at 456, 397 A.2d at 606, and Leonard v. State, 46 Md. App. 631, 637-39, 421 A.2d 85, 88-89 (1989), in which the Court of Special Appeals reiterated and explicated the principles enunciated in Carr. It is of some interest that we also factually compared Zaal to those cases. It is, therefore, inaccurate to even suggest that the Zaal court, like the Affirm court, rejected the defendant's confrontation clause argument as being one applicable only to discovery. See Majority Op. at 13. Likewise, it is inaccurate to even intimate that the Zaal court adopted the Affirm court's due process analysis, thus placing the denial of due process squarely on the fact that "the government's records containing potentially exculpatory information were withheld from an accused." Majority Op. at 13-14.

   II.

   Factually, of course, a state agency's records were involved in Zaal. That did not, however, play a decisive role in our analysis. Indeed, it is quite clear that the Zaal opinion, unlike Avery, did not view the facts of that case as presenting a Brady v. Maryland, 373 U.S. 83, 10 L.Ed.2d 215, 83 S.Ct. 1194 (1963)[***52] or Giles v. Maryland, 386 U.S. 66, 87 S.Ct. 793, 17 L.Ed.2d 737 (1967) situation. In addition to Part V of the Zaal opinion, see also footnote 2, (326 Md. at 62, 602 A.2d at 1251) in which the Court opined:
 
The petitioner makes no contention, with good reason, that the records are discoverable pursuant to Maryland 4-263. That rule places the obligation on the State to disclose, but it presupposes that the information is in the prosecution's possession or under its control.
 
In any event, the distinction that the majority draws between a state agency's files and a third party's file is really [*143] one without a difference. Several courts have rejected its viability. State v. Cressey, 137 N.H. 402, 628 A.2d 696 (N.H. 1993); State v. Gagne, 136 N.H. 101, 612 A.2d 899 (N.H. 1992); Commonwealth v. Miller, 399 Pa. Super. 180, 582 A.2d 4 (Pa. Super. 1990).

   In Cressey, the Supreme Court of New Hampshire admonished the trial court for making[***53] a distinction between records that were under the control of a state agency and those under the control of a psychologist employed by a private mental health facility. Citing Gagne, the court characterized it as "a distinction without a difference." 628 A.2d at 703, noting that "balancing the rights of a criminal defendant against the interest and benefits of confidentiality lies equally in both cases." Id. at 703. The court also stated: "[a] record is no less privileged simply because it belongs to a state agency. Likewise, the defendant's rights are no less worthy of protection simply because he seeks information maintained by a non-public entity." Id. at 704.

   The argument was made in Miller that it made a difference whether the information the defendant sought to discover pursuant to his State constitutional confrontation and compulsory process rights was in the hands of a state agency or a private entity. Rejecting that argument, the same one made by the majority, the court said, "when the nature of the evidence is such that denying a defendant [**882] the opportunity to review it in effect denies him his constitutional right [***54] to confrontation and compulsory process, he is entitled to review that evidence, regardless of whether it is in the hand of the commonwealth or a private institution." Id. at 7-8. See also In Re Doe, 964 F.2d 1325, 1329 (2d Cir. 1992) (in camera review of private psychiatrist records permitted at discovery stage); State Ex Rel Romley v. Superior Court, 172 Ariz. 232, 836 P.2d 445, 453 (same); State v. L.J.P., 270 N.J. Super. 429, 637 A.2d 532, 536 (N.J. Sup. 1994) (same).

   III.

   Maryland's psychotherapist/patient privilege is codified at Md. Code (1957, 1989 Repl. Vol, 1993 Cum. Supp.) § 9-109(b) [*144] of the Courts and Judicial Proceedings Article. It provides:
 
(b) Privilege generally. -- Unless otherwise provided, in all judicial, legislative, or administrative proceedings, a patient or his authorized representative has a privilege to refuse to disclose, and to prevent a witness from disclosing, communications relating to diagnosis or treatment of the patient's mental or emotional disorder.
 
Unknown at common law, the privilege was enacted in 1963 [***55] to, as the terms of the statute make clear, protect a patient from the disclosure of confidential communications he or she might make to his or her therapist. Lynn McLain, Maryland Evidence, § 504.1 at n.2 530 (1987 & Supp. 1994), citing Rappeport, Psychiatrist Patient Privilege, 23 Md. L.Rev. 39, 43 (1963). See B. W. Best, Annotation, "Privilege, In Judicial or Quasi-Judicial Proceedings, Arising from Relationship Between Psychiatrist or Psychologist and Patient," 44 A.L.R. 3rd 24 (1993). The policy underlying the privilege is the encouragement of effective "diagnosis" and "treatment" through ensuring confidentiality of communications. Rappeport, 23 Md. L.Rev. at 49. Although none is applicable under the facts sub judice, section 9-109(d) provides six instances when the privilege does not exist. n5 

n5 It provides: 
 
There is no privilege if:

(1) A disclosure is necessary for the purposes of placing the patient in a facility for mental illness;

(2) A judge finds that the patient, after being informed there will be no privilege, makes communications in the course of an examination ordered by the court and the issue at trial involves his mental or emotional disorder;

(3) In a civil or criminal proceeding: (i) the patient introduces his mental condition as an element of his claim or defense; or (ii) After the patient's death, his mental condition is introduced by any party claiming or defending through or as a beneficiary of the patient; (4) The patient, an authorized representative of the patient, or the personal representative of the patient makes a claim against the psychiatrist or licensed psychologist for malpractice; (5) Related to civil or criminal proceedings under defective delinquency proceedings; or (6) The patient expressly consents to waive the privilege, or in the case of death or disability, his personal or authorized representative waives the privilege for purpose of making claim or bringing suit on a policy of insurance on life, health, or physical condition.
 
Md. Code (1957, 1989 Repl. Vol, 1993 Cum. Supp.) § 9-109(d) of the Courts and Judicial Proceedings Article.

[***56]

   [*145] Section 9-109 does not expressly provide, one way or the other, whether the psychologist/patient privilege is absolute. Maryland law, however, makes it clear that statements, by a patient made to his or her psychologist, about child abuse are not privileged, as health care providers, "acting in a professional capacity," are required to report such abuse to the proper authorities. Md. Code (1984, 1991 Repl. Vol.) § 5-704(a) of the Family Law Article. n6 See also Reynolds v. State, 98 Md. App. at 348, 369, 633 A.2d 455, 465 (1993) ("statements about child abuse are not privileged and must be reported by health care providers, 'notwithstanding any other provision of law, including any law on privileged communications'). Furthermore, because claims of privilege quite frequently result in the exclusion of relevant exculpatory evidence, a matter which frustrates the fact finding process, privilege statutes are narrowly construed. 5 McLain, § 504.1 at 532 n.13; Reynolds, 98 Md. at 368, 633 A.2d [**883] at 464; State v. L.J.P., 270 N.J. Super. 429, 637 A.2d 532, 537 (N.J. Super. 1994),[***57] citing State v. Schreiber, 122 N.J. 579, 585 A.2d 945 (N.J. 1991).

n6 Md. Code (1984, 1991 Repl. Vol.). § 5-705(a)(2) and (3) except from the reporting requirement attorney/client communications and communications made by a penitent to a minister, clergyman or priest pursuant to Md. Code (1974, 1989 Repl. Vol.) §§ 9-108 and 9-111 of the Courts and Judicial Proceedings Article.

   This Court has not heretofore had occasion to consider whether § 9-109(b), or any other statutory privilege, for that matter, absolutely precludes discovery of records protected by privilege. Although we enunciated a procedure for striking the proper balance between a victim's privacy interest in confidential records and due process discovery rights of the defendant, as we have seen, that was not the issue in Zaal. Nor was it the issue in Department of Social Services v. Stein, 328 Md. 1, 612 A.2d 880 (1992), a civil case in which we applied the [***58]Zaal procedure.

   [*146] The Court of Special Appeals, on two prior occasions, has addressed whether the psychologist/patient privilege precludes discovery, by a defendant, of information under its protection. See Avery v. State, 15 Md.App. 520, 292 A.2d 728 (1972), appeal dism. cert. denied, 410 U.S. 977, 93 S.Ct. 1499, 36 L.Ed.2d 173 (1973); Reynolds v. State, 98 Md. App. 348, 633 A.2d 455 (1993). See also Oliver v. State, 53 Md. App. 490, 454 A.2d 856 (1983) (no constitutional right to cross-examine a witness about psychiatric reports when that witness refuses to waive the section 9-109(b) privilege).
 
   In Avery, the intermediate appellate court upheld a trial court ruling denying a defendant's motion to compel the State to produce an assault and battery victim's psychiatric records for inspection or, in the alternative, to dismiss the indictment with prejudice. It is not clear from the court's opinion whether, other than a proffer that the records existed, the defendant proffered why[***59] he believed he was entitled to inspect the records. Responding to the argument that Maryland Code (1957, 1969 Repl. Vol.) Art. 35, § 13(A)(b) n7 , the precursor of section 9-109(b), was unconstitutional because it denied the defendant due process and fundamental fairness, the court stated:
 
The privilege of non-disclosure afforded by the statute is facially constitutional and appellant cites no authority, constitutional or otherwise, which would nullify the protection extended by the statute. Where, as here, the witness claimed the privilege, no suppression of evidence by the State is involved within the contemplation of such cases as Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L. Ed. 2d 215 (1963) or Giles v. Maryland, 386 U.S. 66, 87 S.Ct. 793, 17 L.Ed.2d 737 (1967).
 
[*147] Id. at 537, 292 A.2d at 741. Since the court held that inspection was not appropriate, the defendant's request that the records be reviewed by the trial court in camera was also denied. Id. at 538, 292 A.2d at 741.

n7 That section provided:
 
"Except as hereinafter provided, in civil and criminal cases, * * * , a patient, or his authorized representative, has a privilege to refuse to disclose, and to prevent a witness from disclosing, communication, wherever made, relating to diagnosis or treatment of the patient's mental or emotional disorder, provided, that the presiding judge of a court of record may compel such disclosure in cases involving the custody of children, * * * ." 

[***60]

   Although the Court of Special Appeals acknowledged that the section 9-109(b) privilege affords a patient's psychotherapy records greater protection than did the regulations construed in Zaal and the statute in Pennsylvania v. Affirm, 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987), it nevertheless recognized the defendant's "due process right to discover and put before the factfinder evidence that might influence the determination of guilt ... [including] evidence... that a State's witness is now, or was at a relevant period of time, suffering from a mental disability that reasonably calls into question his or her ability to observe, recall, or communicate." Reynolds, 98 Md. App. at 364, 633 A.2d at 462, citing Affirm, 480 U.S. at 56, 107 S.Ct. at 1000-1001, 94 L.Ed.2d at 56, and Reese v. State, 54 Md. App. 281, 289-292, 458 A.2d 492 (1983). Rather than the procedure enunciated in Zaal for resolving conflicts between a defendant's due process discovery rights and[***61] the privacy interests of a victim or the State in potentially relevant records, however, the intermediate appellate court adopted the procedure this Court announced in Hamilton, Superintendent v. Verdow, 287 Md. 544, 566-67, 414 A.2d 914, 926-27 (1980), for the resolution of claims of executive privilege. Under that procedure, once materials have been [**884] determined to be presumptively privileged, the burden shifts to the party seeking them to show either that they are not privileged or that there is some necessity for their production notwithstanding the privilege. Verdow, 287 Md. at 566, 414 A.2d at 926. Only when the requisite showing has been made to overcome the presumption will the court conduct an in camera inspection of the materials. Id. at 566, 414 A.2d at 926.

   IV.

   A.

   There are cases that hold that the psychologist-patient privilege is absolute and, thus, communications and other [*148] materials subject to its protection are not discoverable. See People v. District Court of Denver, 719 P.2d 722 (Colo. 1986); People v. Foggy, 149 Ill. App. 3d 599, 500 N.E.2d 1026, 102 Ill. Dec. 925 (Ill. App. 1986),[***62] leave to appeal granted, 106 Ill. Dec. 51, 505 N.E.2d 357 (Ill. 1988) n8; Com. v. Wilson, 529 Pa. 268, 602 A.2d 1290 (Pa. 1992) cert. denied, sub. nom, Aultman v. Pennsylvania, ___ U.S. ___, 112 S.Ct. 2952, 119 L.Ed.2d 574 (1992) n9 ; Com. v. Smith, 414 Pa. Super. 208, 606 A.2d 939 (Pa. Super.), appeal denied, 620 A.2d 490 (Pa. 1992); Com. v. Kyle, 367 Pa. Super. 484, 533 A.2d 120 (Pa. Super.) appeal denied, [*149] 541 A.2d 744 (Pa. 1987). n10 See also Commonwealth v. Kennedy, 413 Pa. Super. 95, 604 A.2d 1036 (Pa. Super.) appeal denied, 611 A.2d 711 (Pa. 1992) (privilege covers the records memorializing the communications between the client and the psychologist). 

n8 The Supreme Court of Illinois affirmed People v. Foggy, 149 Ill. App. 3d 599, 500 N.E.2d 1026, 102 Ill. Dec. 925 (Ill. App. 1986). See People v. Foggy, 121 Ill. 2d 337, 521 N.E.2d 86, 118 Ill. Dec. 18 (Ill. 1988). While it appears that the Court, agreeing with the appellate court, adopted the absolute privilege rationale, see 521 N.E.2d at 91, its observation at the end of the opinion, leaves the issue in doubt:
 
In sum, § 8-802.1 of the Code of Civil Procedure evinces a strong public policy in favor of the confidentiality of communications between sexual assault victims and counselors. Unlike the defendant in Davis v. Alaska (1974), 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347, who knew of specific information that could show bias or motive to fabricate on the part of the prosecution witness, and who had no other means of achieving that end, the defendant here has offered no reason to believe that the victim's counseling records would provide a source of impeaching material unavailable from other sources. We conclude that the defendant was not denied due process, nor was his confrontation right violated, by the trial judge's refusal in this case to conduct an in camera inspection of the victim's counseling records.
 
Id. at 92.

[***63] 

 n9 It is of some interest that the Supreme Court of Pennsylvania in Commonwealth v. Lloyd, 523 Pa. 427, 567 A.2d 1357 (Pa. 1989), without even discussing the psychologist-patient privilege, or mentioning, Commonwealth v. Kyle, 367 Pa. Super. 484, 533 A.2d 120 (Pa. Super.), appeal denied, 541 A.2d 744 (Pa. 1987), held that under the Pennsylvania Constitution's confrontation and compulsory process clauses, defense counsel was entitled to access to the contents of the psychotherapeutic records of an alleged rape victim. The result in Lloyd was explained by the Court in Com. v. Wilson, 529 Pa. 268, 602 A.2d 1290, 1297-98 (Pa. 1992):
 
The Court voted, however, that the Lloyd case, unlike the Affirm case, did not involve a statutory privilege. Rather, the Court in Lloyd was concerned with a common law privilege which could not defeat a defendant's constitutional rights. Implicit in the distinction drawn by the Lloyd court is the recognition that the existence of a statutory privilege is an indication that the legislature acknowledges the significance of a particular interest and has chosen to protect that interest. 
[***64] 

n10 State v. Baker, 582 So.2d 1320 (La. App. 1991), cert. denied, ____ U.S. ___, 113 Sup. Ct. 62, 121 L.Ed.2d 30 (1992) and State v. Parker, 294 S.C. 465, 366 S.E.2d 10 (S.C. 1988), both cited by the State, did not consider whether disclosure was constitutionally required. Accordingly, like Avery v. State, 15 Md. App. 520, 292 A.2d 728 (1972), appeal dism., cert. denied, 410 U.S. 977, 93 S.Ct. 1499, 36 L.Ed.2d 173 (1973), they are not directly apposite.

   Kyle is representative of the reasoning in these cases. There, the court stated its dilemma: it was "presented with a situation where the interests of the accused in learning of favorable witnesses as well as obtaining arguably useful information directly conflicts with society's interest in maintaining confidentiality between a psychologist and a client." 533 A.2d at 125 [***65](footnote omitted). Noting that Affirm both involved a statutory conditional privilege, which did not preclude all use of the protected information, and made clear that a defendant's rights are not without limitation, the court concluded that "a compelling public interest would justify [**885] the total non-disclosure of information [protected by the psychologist-patient privilege]." Id. The court then concluded that the public interest is served by the psychologist-patient privilege:
 
Patient confidence is essential for effective treatment. Because the information revealed by the patient is extremely personal, the threat of disclosure to outsiders may cause the patient to hesitate or even refrain from seeking treatment. The privilege thus serves the public interest in promoting a society in which the general well-being of the citizenry is protected. We find that this public interest is especially compelling where, as here, the victim of a crime has sought post-assault treatment knowing that her testimony would be a necessary part of the prosecution's case. Indeed, the fact that the legislature determined confidential information was [*150] inadmissible as evidence under the statutory [***66] privilege demonstrates a recognition of this public policy consideration. 
 
Id. at 126-127 (footnotes and citations omitted).

   Whether the privilege outweighed the accused's interest in discovering information useful to the defense was the next issue the court addressed. As to it, the court stated:
 
Having reviewed the language of the statutory privilege enacted by our legislature and having given consideration to the public policies underlying the absolute privilege as well as the relevant cases in this and other jurisdictions, we find that the interests protected by the privilege are substantial. We are, of course, cognizant of the heavy weight afforded to appellant's interest in disclosure of the victim's file. Nonetheless, in weighing the public interests protected by shielding the file with those advanced by disclosure, we conclude that the balance tips in favor of non-disclosure. Nor do we believe that our decision today will unduly infringe on the rights of the accused. First, we note that as a matter of constitutional law, our courts have upheld testimonial privileges which bar a criminal defendant from obtaining or using confidential communications.... Here, the [***67]privilege only limits access to statements made during the course of treatment by the psychologist. It does not foreclose all lines of defense questioning. Likewise, the privilege does not unfairly place the defense in a disadvantageous position; like the defense, the prosecution does not have access to the confidential file and, thus, cannot use the information to make its case. 
 
Id. at 129-30 (citations omitted). Additionally, the court declared that the interest protected precludes even in camera review by the court:
 
We decline to compromise what we have determined is an absolute privilege from disclosure. As we noted above, the purpose of the psychologist-client privilege is to aid in the effective treatment of the client by encouraging the patient to disclose information fully and freely without fear of public disclosure. We deem this purpose and the underlying [*151] considerations to be of paramount concern. Subjecting the confidential file to in camera review by the trial court (as well as the appellate courts and staff members) would jeopardize the treatment process and undermine the public interests supporting the privilege. Simply stated, an absolute privilege[***68] of this type and in these circumstances requires absolute confidentiality.
 
Id. at 131 (footnote omitted).

   B.

   Other courts, indeed, the majority that have considered the question, including, as we have seen, the Court of Special Appeals, see Reynolds, supra., hold that the psychologist-patient privilege is not absolute. n11 E.g. [**886]State Ex Rel Romley v. Superior Court, 172 Ariz. 232, 836 P.2d 445, 452 (Ariz. App. Div.1 1992); State v. Hufford, 205 Conn. 386, 533 A.2d 866, 875-77 (Conn. 1987); Bobo v. State, 256 Ga. 357, 349 S.E.2d 690, 691-92 (Ga. 1986); People v. Bean, 137 Ill. 2d 65, 560 N.E.2d 258, 270-75, 147 Ill. Dec. 891 (Ill. 1990); Commonwealth v. Bishop, 416 Mass. 169, 617 N.E.2d 990, 994-95 (Mass. 1993); People v. Stanaway, 446 Mich. 643, 521 N.W.2d 557, 577 (Mich. 1994); People v. Adamski, 198 Mich. App. 133, 497 N.W.2d 546, 548-50 (Mich. App. 1993);[***69] State v. Hummel, 483 N.W.2d 68, 71-72 (Minn. 1992); State v. Ramos, 115 N.M. 718, 858 P.2d 94, 97-99 (N.M. App. 1993); State v. Donnelly, 244 Mont. 371, 798 P.2d 89, 91-92 (Mont. 1990); State v. Trammell, 231 Neb. 137, 435 N.W.2d 197, 200-01 (Neb. 1989); State v. Cressey, 137 N.H. 402, 628 A.2d 696, 703-04 (N.H. 1993); State v. [*152] L.J.P., 270 N.J. Super. 429, 637 A.2d 532, 536 (N.J. Super. 1994); State v. Shiffra, 175 Wis. 2d 600, 499 N.W.2d 719, 721-23 (Wis. App.1993); Gale v. State, 792 P.2d 570, 581 (Wyo. 1990); Advisory Opinion to the House of Representatives, 469 A.2d 1161, 1163 (R.I. 1983). See also In Re Doe, 964 F.2d 1325, 1327-29 (2nd Cir. 1992); United States v. Lindstrom, 698 F.2d 1154, 1167 (11th Cir. 1983). See State v. Allman, 177 W. Va. 365, 352 S.E.2d 116, 120 (W.Va. 1986)[***70] (by statute, privileged information is discoverable "pursuant to an order of any court based upon a finding that said information is sufficiently relevant to a proceeding before the court to outweigh the importance of maintaining the confidentiality established by [the statute]."). With but few exceptions, the defendant's constitutional rights of confrontation, compulsory process, and/or due process are vindicated through use of an in camera proceeding in which the court alone reviews the privileged material for relevant usable evidence. E.g. In Re Doe, 964 F.2d at 1329, Romley, 836 P.2d at 453 ("Any restrictions on defendant's access to information essential to preparation for effective, reasonable cross-examination or impeachment of the victim in this case imposed pursuant to the victim's Bill of Rights must be proportionate to the interest of protecting the victim as balanced against the defendant's due process right to a fundamentally fair trial."); Hufford, 533 A.2d at 876, Lindstrom, 698 F.2d at 1166-68; State v. Trammell, 435 N.W.2d at 201.[***71] 

n11 Some of these, as the majority points out, notably People v. Stanaway, 446 Mich. 643, 521 N.W.2d 557 (Mich. 1994) and State v. Trammell, 231 Neb. 137, 435 N.W.2d 197 (Neb. 1989), as a sanction for refusal to waive the privilege once the threshold needs showing has been made, prohibit the testimony of the complaining witness or, if the witness has already, testified, requires that testimony to be strickened. See also State v. Whitaker, 202 Conn. 259, 520 A.2d 1018, 1025 (Conn. 1987).

   These cases recognize that confrontation is more than physical, that the primary interest it secures is the right to cross-examination. Thus, they perceive this result "to be the only method by which both the rights of the witness [to privacy] and the right of the defendant [to confront his or her accuser] may be accommodated." Trammell, 435 N.W.2d at 201.

[***72]

   Bishop is typical of the rationale employed by these courts, In that case, the court recognized the competing interests as being, on the one hand, the need to minimize the danger that the exclusion of relevant evidence for a purpose other than enhancing the truth-seeking function will result in an innocent defendant being convicted and, on the other, the need to avoid "the chilling effect which routine disclosures [of privileged information] may have in preventing those in need from seeking that help." 617 N.E.2d at 994, quoting Commonwealth v. Collett, 387 Mass. 424, 439 N.E.2d 1223, 1226 (Mass. 1982). Underlying the interests in disclosure, the court noted, are the propositions that "when relevant evidence is excluded ...for some purpose other than enhancing the truth-seeking function, [*153] the danger of convicting an innocent defendant increases," and that "at a minimum... criminal defendants have the right to... put before a jury evidence that might influence the determination of guilt." Id, quoting Affirm, 480 U.S. at 56, 107 S.Ct. at 1000, 94 L.Ed.2d at 56.[***73] In addition to the purpose for privileges - prevention of the chilling effect of disclosures - the court pointed out that disclosure "serves as a disincentive to the maintenance of [the privileged] relationships." Id. Balancing these interests, the court recognized "that in certain circumstances a defendant must have access to privileged records so as not to undermine confidence in the outcome of trial." Id. at 994-995.

   Similarly, the court in Adamski held "that confidential or privileged information must be disclosed where a defendant's right to effective cross-examination would otherwise be denied." 497 N.W.2d at 548-50. The court pointed out that "it appears well settled as a matter of constitutional law that common-law or statutory privileges, even if purportedly absolute, may give way when in conflict with the constitutional right of cross-examination," and that "privileges such as the one before us in this matter are intended to encourage society's interest in open discussion [**887] between persons in need and those from whom they seek help [but], at the same time, however, privileges impede ability to present a defense by limiting[***74] the evidence available." Id. at 548-50.

   The Bishop court, in defining its task, opined: 

   The issue then devolves to the need to articulate a standard that judges can apply to identify those circumstances in which disclosure of the victim's records privileged by statute is required to provide the defendant a fair trial. It may be said that the controverted privilege shall be pierced in those cases in which there is a reasonable risk that nondisclosure may result in an erroneous conviction. Our charge, then, is to describe a standard that defines the line between a less inclusive standard (disclosure is not ordered when it should be ordered) and an overly inclusive standard (disclosure is ordered when it should not be ordered), resolving any doubt in favor of disclosure. 
 
[*154] 617 N.E.2d at 995. The standard the court articulated required the defendant to meet a "threshold burden" of showing "at a minimum, a likelihood that the records contain relevant evidence to justify initial judicial review." Id.

   C.

   The cases holding that the privilege is not absolute, which I find persuasive, are consistent with the rationale we employed [***75] in Zaal and the Court of Special Appeals employed in Reynolds. Consequently, I would hold that the psychotherapist-patient privilege embodied in section 9-109(b) is not absolute. Accordingly, I would reverse the judgment of the intermediate appellate court.

   V.

    The State alternatively argued, and the majority today holds, that the trial court properly refused to disclose the subject records because the petitioner's proffer was inadequate. Although cognizant that Zaal enunciated a balancing test to resolve the competing interests of defendants in disclosure and of the victims and the State in non-disclosure of confidential information and enumerated relevant factors in that regard, they favor adoption of a more stringent test. Indeed, the test the majority announces is "a reasonable likelihood that the privileged records contain exculpatory information necessary for a proper defense." Majority Op. at 24-25.

   Clearly, records protected by the psychologist-patient privilege enjoy a heightened level of protection, but as previously noted, the privilege is not absolute. Therefore, having determined that a defendant's interest in a fair trial may outweigh the privacy interest of a[***76] victim or the State in the information made confidential by the applicable privilege, this Court in Zaal fashioned a procedure by which those interests could be balanced. Notwithstanding that it did not specifically address the discoverability of privileged records and it endorses review options other than in camera review by the court alone, I [*155] believe that the test it enunciated adequately addresses and balances the interests implicated in the case sub judice.

   Applying the Zaal test, I conclude that both the trial court and the Court of Special Appeals erred. The trial judge perceived the dispositive issue to be whether the petitioner's proffer made plausible that the psychotherapy records contained information bearing on the victim's capacity to perceive. It rejected any notion that the records could, or should, be reviewed for evidence useful in cross-examining the victim concerning her motivation, bias, and veracity. Zaal and the cases holding that the due process rights of a defendant can override a statutory privilege recognize that the purpose of review is not so limited. The Court of Special Appeals erred in holding, as a matter of law, that the "need [***77]to inspect" threshold was not met in this case. The court should have considered and analyzed the petitioner's proffer in light of the Zaal standard. Zaal, 326 Md. at 88, 602 A.2d at 1264. Therefore, the petitioner is entitled to a new trial.

   At the threshold, a defendant is required to establish a "need to inspect." Id. at 81, 602 A.2d at 1260. In that regard, we noted in Zaal that where the defense relies heavily on credibility or matters similarly treated, [**888] whether the information would be useful in rebutting the plaintiff's case or impeaching the complaining witness "depends upon the circumstances, including context, and, to a large extent, the perception of the person interpreting it." Id. at 82, 602 A.2d at 1261. To like effect, see Bishop, 617 N.E.2d at 996 n.6 and Shiffra, 499 N.W.2d at 722. To meet the "need to inspect" threshold, the defendant must proffer some relationship between the charges, the information sought, and the likelihood [***78] that review of the records will reveal relevant information. Id. at 81-82, 602 A.2d at 1260 - 1261. Therefore, taking into account the issues before the court and the seriousness of the charges facing the defendant, the proffer must not be frivolous, must place before the court the petitioner's legitimate concerns, and must give plausibility to the defendant's stated need to review [*156] the records for relevant information. Id. at 83, 602 A.2d at 1262. n12 

n12 This is consistent with what other courts that have determined that the psychologist-patient privilege may be overridden by a defendant's need to discover favorable and useful information require as a threshold showing of need. Bishop, 617 N.E.2d at 995, 997 (Mass. 1993) ("a defendant must show, at a minimum, a likelihood that the records contain relevant evidence to justify initial review;" "defense counsel shall submit to the judge, in writing, the theory or theories under which the particular records sought are likely to be relevant to an issue in the case"); State v. Howard, 221 Conn. 447, 604 A.2d 1294, 1300 (Conn. 1992) ("reasonable ground to believe failure to produce records likely would impair defendant's right to impeach witness"); Hummel, 483 N.W.2d 68, 72 (Minn. 1992) (plausible showing that information is material and favorable to defense); State v. Gagne, 136 N.H. 101, 612 A.2d 899, 901 (N.H. 1992) (reasonable probability that the records contain information that is material and relevant); State v. Shiffra, 175 Wis. 2d 600, 499 N.W.2d 719, 721 (Wis. App. 1993) ("preliminary showing that the sought after evidence is material to his or her defense").

[***79]

   We made clear in Stein what was only implicit in Zaal, that the proffer of relevance could not be very specific since the defendant will not have seen the records and could not possibly know what was in them. 328 Md. at 30, 612 A.2d at 894. We did not, however, sanction or encourage fishing expeditions by counsel. We had required in Zaal, and continued to require in Stein, that counsel must proffer "a reasonable possibility that review of the records would result in discovery of usable evidence...." Stein, 328 Md. at 30, 612 A.2d at 894. Although the defendant need not show that the records actually contain material information, the proffer cannot be "merely a desperate grasping at a straw." Bishop, 617 N.E.2d at 997.

   The State argues n13 that the petitioner's proffer is weaker than that in both Zaal and Stein, because it enumerates only [*157] two facts: the incident at issue occurred ten years earlier and the victim was in counseling. The majority agrees that the proffer is insufficient. Therefore, adopting the State's argument, the[***80] majority holds, as a matter of law, that the petitioner's proffer does not cross the "need to inspect" threshold. Majority Op. at 23-27. I do not agree.

n13 In Zaal, the defendant subpoenaed the school records of his granddaughter, whom he was charged with sexually abusing. He hoped review of those records would develop impeachment evidence. When the Board of Education refused to comply with the subpoena, he proffered their relevance, which we summarized:
 
Because, he noted, he was aware that the victim had an emotional disability requiring special education and he denied her allegations, the case would likely turn on the victim's credibility. Therefore, he continued, it was necessary that he be able to attack her credibility and, specifically, to explore her motivation, bias and veracity. This would not be possible, he proffered, "without access to some records indicating the nature and extent of the child's disability." Moreover, he suggested that the records might reveal "a pattern of behavior pre-existing that would impinge upon [the victim's] believability in the statement." In fact, that the victim was in a "special classroom" as a result of an "emotional disturbance" bears, he asserts, on whether there was "a physical basis that would relate to her capacity to observe and relate" or "a mental deficiency leading to an inability to control actions." Furthermore, petitioner noted "the 

extreme antagonism [that] had existed for a number of years between himself and the victim's father," contending that the victim's awareness of that hostility may indicate a bias on her part which caused her to fabricate the incident.
 
326 Md. at 62-63, 602 A.2d at 1251.

[***81]

   In this case, the petitioner's proffer of relevance asserted that credibility was going to be a critical issue at trial. In support of that assertion he contended that the victim was in counseling; i.e., 10 years, had elapsed [**889]between the last alleged act of sexual abuse and the bringing of charges; that he had no contact with the victim for a considerable period of time and, hence, was without knowledge as to what her emotional state was; that the psychologist's records might show that the victim was delusional; that the victim may never have told her therapist about the alleged abuse, or may have done so only recently. He also noted that the victim told the police that it took years of counseling for her to summons the courage to bring the charges.

   As we pointed out in Zaal, in addition to the specific proffer, the court must take into account the circumstances of the case, including the nature of the charges brought against the defendant, and the issue before the court. The query is, "Has the petitioner placed before the court 'legitimate concerns and [given] plausibility to his stated need to review the records for [*158] relevant information[?]'" Zaal, 326 Md. at 83, 602 A.2d at 1262.[***82] Among the significant circumstances of this case is the amount of time that elapsed between the time of the alleged commission of the last criminal act and the filing of the complaint. This should be considered. Additionally relevant is the timing of the decision to undergo psychotherapy and its focus. Of particular interest here is that the psychotherapy occurred years after the incident giving rise to the criminal charges and the trauma at which the psychotherapy ostensibly is aimed. This factor is particularly important in this case in light of repressed memory syndrome, also known by opponents as false memory syndrome, a phenomenon which recently has gained nationwide attention. n14 Undoubtedly, a stronger [*159] threshold showing may be required to be proffered when the psychotherapy records sought are those of a victim who entered post-assault treatment, knowing that his or her testimony would be a necessary part of the prosecution's case, see Kyle, 533 A.2d at 126, as opposed to one whose treatment is obtained, and continued, long after the event directly giving rise to the need for therapy has terminated. 

 n14 Repressed memory syndrome relates to the recovery of sexual abuse memories triggered by suggestion or by seemingly "unrelated events." See Dan Trigoboff, Maryland Repressed Memory Cases Expose Rift in Psychotherapy: Failed Civil and Criminal Actions against Accused Fathers Have Even Proponents Of Embattled Diagnosis Questioning Value Of Legal Action, the Daily Record, May 14, 1994. See also Gary M. Ernsdorff & Elizabeth F. Loftus, Let Sleeping Memories Lie? Words of Caution About Tolling the Statute of Limitations in Cases of Memory Repression, 84 J. Crim. L. & Criminology, 129, 143 (1993); Sandra G. Boodman, Advocacy Group for "Aggrieved Parents" Fights Back, The Washington Post, April 12, 1994; Sandra G. Boodman, At 28, Kathy O'Connor of Arlington says she remembered that her father raped her. She sued him and lost. Are Delayed Memories Like Hers True or False?, The Washington Post, April 12, 1994; Sandra G. Boodman, The Professional Debate Over An Emotional Issue, The Washington Post, April 12, 1994 ; Elizabeth F. Loftus, You Must Remember This, The Washington Post, July 27, 1993; Victoria Slind-Flor, He Says Recovered Memories Ruined Him: Ex Mondavi Wine Exec Sues His Daughter's Therapists, Who Elicited Disputed Recollections, The National Law Journal, April 18, 1994. There is concern that some repressed memories may be false. "They can return abruptly, they can seem terrifyingly real, they can be influenced by therapists and they can be false." Boodman, The Professional Debate Over An Emotional Issue, supra, at 13. Accordingly, the court may decide to consider the amount of time it took the complaining witness to bring the charges.

   That there is a record of the complaining witness having "reported" the sexual abuse to the Department of Social Services when she was 17 is not proof positive that repressed memory syndrome is not an issue in this case. The Social Services report characterized the allegations as vague and noted the victim's refusal or unwillingness to cooperate. The detail with which the complaining victim testified and her acknowledgment that it was psychotherapy that enabled her to gain the courage to bring the charges highlight the fact that whether counseling has played a role in enhancing her memory is very much an issue.

[***83]

   Although not directly so proffering in this case, the petitioner must have sought the records to effectively cross-examine the victim concerning the charges. Since the petitioner has not seen the records and cannot know what is in them, his proffer cannot be very specific. See Stein, 328 Md. at 30, 612 A.2d at 894; Bishop, 617 N.E.2d at 996, n.6. As in Zaal, however, the petitioner's proffer, confirmed by the evidence adduced at trial, made clear that the critical issue in the case was clearly one involving credibility. The victim's version of the incident and that of [**890] the petitioner are diametrically and irreconcilably different. The lapse of time between the alleged incidents and their reporting, the fact that it was through counseling that she obtained the courage to bring the charges, and the fact that the counseling was obtained long after the acts alleged were committed, all raise the possibility that review of the counseling records will reveal relevant, useable information. Indeed, the latter two facts logically could suggest review in the interest of possibly discovering the source[***84] of the victim's memory of the events. n15 

 n15 During her testimony, the petitioner stated that her doctor suggested that she keep a diary of her new memories because "all these things were being stirred up." Therefore, any memory enhancing methods that may have been used by the doctor during the sessions could be useful in assessing the credibility of the witness and the accuracy of the charges.

   Determining that the "need to inspect" threshold has been crossed does not end the court's task; it still must decide how the review will be conducted - which of the options identified in Zaal it will order. In Zaal, this Court recognized that [*160] "juxtaposed against petitioner's proffer is the victim's legitimate [privacy] interest" and that granting the defendant unrestricted access to the victim's confidential records could have adverse effects. Id. at 83-84, 602 A.2d at 1262. It was in the interest of balancing these competing interests that we observed:
 
How significant that concern is, however, depends directly[***85] on the options available to the court; to the extent that the court has only two options - in camera review by the court alone or ordering unqualified access of the records to the accused - vindication of the victim's privacy rights may require a more restrictive attitude with respect to the accused's access to the victim's records. If there are other options, an intermediate position, perhaps, the accused's access may be expanded.
 
Id. at 84, 602 A.2d at 1262. Noting that "where sensitive matters are involved, it is the responsibility of trial judges to fashion remedies which will take account of the rights of the accused and, at the same time, protect the interest of victims," Id. at 86, 602 A.2d at 1263, we adopted the expanded in camera review proceeding enunciated in Stockhammer, supra, but see note 5, inter alia to avoid a trial judge being required to perform that function [*161] which is so foreign to its usual office. Id. at 86, 602 A.2d at 1263. At the same time, we sought to ensure that the defendant would have the benefit of the advocate's eye while protecting the victim's privacy. This was to be accomplished "both by virtue of the court[***86] order restricting dissemination of the information contained in the records and by proceedings to determine admissibility of information defense counsel deems relevant and usable..." Id. at 87, 602 A.2d at 1263.

   I realize that the records in this case are more sensitive than those at issue in Zaal and Stein and that the trial court has yet to determine the strength of the "need to inspect" showing in relation thereto. When access to sensitive or confidential records is sought by a defendant, the trial court has three options, "to review the records alone, to conduct the review in the presence of counsel, or to permit review by counsel alone, as officers of the court, subject to such restrictions as the court requires to protect the [**891]records' confidentiality." Id. at 87, 602 A.2d at 1264. Which option it chooses is a matter within the court's discretion, although we offered factors to inform the exercise of that discretion. Id. The burden of proof does not change, merely the method of reviewing the material. It must also be pointed out that, when the court reviews the records alone, except as to information which, without regard to the perspective of the person conducting [***87]the review, has absolutely no possible relevance to the case, "the trial court's in camera review should not be conducted with preclusive intent." Id. at 88, 602 A.2d at 1264 (footnote omitted). To the extent that there is a question of the source of the victim's memory, i.e., how it was "triggered", evidence bearing on that issue would appear to be "readily identifiable," and, hence, would support court review alone.

   Should it elect to review the records alone, as, indeed, it may decide to do, the court's purpose is not to act as advocate, but only to exclude from the parties' review material that could not logically be used by the defense in preparing its case. Finally, "the trial judge should mark and seal the records excluded so that the judge's determination in that [*162] regard may be reviewed on appeal." Id. at 88 n.15, 602 A.2d at 1264 n.15.

   VI.

   As earlier indicated, the majority requires a showing of "a reasonable likelihood that the privileged records contain certain exculpatory information necessary for a proper defense," as a prerequisite to disclosure of privileged information. Majority Op. at 24-25. Not only does this standard place on a defendant a burden [***88] of proof much higher than that required in Zaal, but, notwithstanding its protestations to the contrary, it makes the psychotherapist-patient privilege effectively absolute; establishing a reasonable likelihood of discovery of exculpatory information, requiring as it does a rather specific identification of what the sought after evidence is, is virtually impossible. See note 4 supra. A constitutional right incapable of being exercised is tantamount to no right at all; it is hollow, indeed.

   I repeat, I dissent.

   Judge Eldridge joins in the views expressed herein. 

                       
COMPTROLLER OF THE TREASURY v. WASHINGTON GAS LIGHT COMPANYet al. 
No. 26, September Term, 1994
 
COURT OF APPEALS OF MARYLAND
 
336 Md. 595; 650 A.2d 241; 1994 Md. LEXIS 153

  
 December  7, 1994, Filed

   PRIOR HISTORY: [***1] Appeal from the Circuit Court for  Anne Arundel  County pursuant to certiorari to the Court of Special Appeals.

DISPOSITION: JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AFFIRMED. COSTS TO BE PAID BY THE COMPTROLLER OF THE TREASURY.

CORE TERMS:  customer, interruptible, taxable income, margin, surcharge, franchise tax, public service, income tax, modified, flexible, deposit, gross receipts, claim of right, commodity, corporate income tax, nonutility, non-gas, collected, public utility, gross income, natural gas, subtraction, credited, auditor, therm, duty, authorization, anticipated, distribute, financing

COUNSEL: ARGUED BY John K. Barry, Assistant Attorney General, (J. Joseph Curran, Jr., of Baltimore MD, Attorney General; Gerald Langbaum, Assistant Attorney General, on brief) of Annapolis, MD, FOR APPELLANT.
 
ARGUED BY Karen B. Pancost (Ralph E. Fisher, on brief) of Washington, DC. ARGUED BY: Cynthia Green-Warren, Assistant People's Counsel, (Michael J. Travieso, People's Counsel, on brief) both of Baltimore, MD, FOR APPELLEE.

JUDGES: ARGUED BEFORE Murphy, C.J.; Eldridge, Rodowsky, Chasanow, Bell, Raker, McAuliffe, John F., judge of the Court of Appeals (retired, specially assigned), JJ.

OPINIONBY: RODOWSKY

OPINION: [*596]
 
[**241] Opinion by Rodowsky, J.
 
This case involves the income taxation of a public utility that is under a regulatory duty to credit to certain customers a percentage of its net margin on sales to other customers. For the reasons set forth below, we shall hold that the credited amount is not income to the utility.

    The appellee, Washington Gas Light Company (WGL), is a public service company, [***2] as defined in Maryland Code (1988), § 8-401 of the Tax General Article (TG). n1 WGL provides natural gas to residents of Montgomery, Prince George's, Charles, Calvert and St. Mary's Counties. As a public utility, WGL is subject to a Maryland franchise tax and to the corporate income tax. A two percent franchise tax is imposed on gross receipts of public service companies derived from business in Maryland. §§ 8-402 and 8-403. The corporate income tax is imposed at a rate of seven percent on Maryland taxable income. § 10-105. Gross receipts subject to the franchise tax are, in general, excluded in determining[*597] the income tax liability of a utility, pursuant to the income tax structure described below. 

n1 Unless otherwise specified, all statutory references are to Md. Code (1988), Tax General Article.

   Maryland corporate income tax is calculated on Maryland modified income. § 10-301. Maryland modified income is the corporation's [**242] federal taxable income as determined under the Internal Revenue Code, subject to certain Maryland[***3] adjustments. § 10-304. "To the extent included in federal taxable income," certain amounts "are subtracted from the federal taxable income of a corporation to determine Maryland modified income." § 10-307(a). The subtractions from federal income include "gross receipts, less related expenses, that are subject to the public service company franchise tax." § 10-307(e).

   As a public service company, WGL is regulated by the Public Service Commission (the Commission). Md. Code (1957, 1991 Repl. Vol.), Art. 78, § 1 et seq. Before WGL can sell gas, its schedule of rates must have been duly filed and published. Art. 78, §§ 27(a), 28(a). From the standpoint of WGL's utility rates, this case involves two classes of customers--those whose service is anticipated to be uninterrupted (the firm customers) and those whose service is anticipated to be interrupted. Prior to 1984 "interruptible rates were determined much the same way as rates for other customer classes." Re Maryland Natural Gas, A Div. of Washington Gas Light Co., 79 Md. PSC 298, 340 (1988) (Case No. 8119). Flexible, interruptible rates were authorized for WGL in Re Washington Gas Light Co., 75 Md. PSC 436 (1984) (Case No. 7649).[***4] As part of the authorization for WGL to charge flexible, interruptible rates, the Commission directed WGL to pay to firm customers a percentage of its margin on sales to interruptibles. This payment is called the firm credit adjustment (FCA). Id. at 443.

   Potomac Electric Power Company (PEPCO) is a flexible, interruptible rate customer of WGL. The assessment for an income tax deficiency against WGL that the Comptroller of the Treasury here seeks to sustain involves the amount of FCA paid by WGL to firm customers out of payments by[*598] PEPCO to WGL for natural gas for the WGL tax years ending December 31, 1988, September 30, 1989, and September 30, 1990. It appears that PEPCO was the only flexible, interruptible rate customer of WGL for those years and that WGL's sales to PEPCO were made to the latter's facility at Chalk Point.
 
   At issue here is the characterization of the FCA for income tax purposes. Resolution of the issue requires a further explanation of the FCA. In Commission Case No. 7649, WGL sought flexible pricing for its sales to interruptibles. WGL "claimed the existence of an unprecedented potential for the loss of load from interruptible customers[***5] capable of switching to alternate fuels." Id. at 442. Increasing natural gas prices, declining fuel oil prices, and more competitive electric prices influenced this potential. Id. at 442-43. WGL's application sought "the assignment to firm customers, through the commodity charge, of the fixed charges formerly recovered from interruptible customers in the commodity charge applicable to that class." 79 Md. PSC at 340. The Office of People's Counsel (OPC) and the Commission staff opposed this initial proposal because it would shift "cost recovery (other than purchased gas costs) from commodity to fixed, system charges." 75 Md. PSC at 455. The Commission rejected that proposal by WGL.

   Thereafter all of the parties to Case No. 7649, including the OPC, presented a Joint Proposal that was given effect by the Commission. Part of the response to the problem of shifting fixed or nongas charges was to require WGL to pay the FCA to firm customers. A summary describing the Joint Proposal appears in Case No. 8119 as follows:
 
"The parties sought the institution of flexible interruptible[***6] rates bounded by a floor and a ceiling. An increase in the commodity charges for firm customers of 1.25 cents per therm was stipulated, based on the uniform assignment of $4.642 million of interruptible non-gas costs to firm customers, with WGL assuming the risk of recovering the remaining[*599] $3 million in non-gas costs from sales to interruptible customers under the new interruptible rate schedules.

   "A formula was also proposed for the recovery of those non-gas costs. WGL could recoup its three million 'at risk' dollars through a sharing of the margin obtained from interruptible sales, on a 50/50 basis on the first $6 million of margins obtained from interruptible customers. [**243] The remaining $3 million in margins from the first $6 million recovered would be assigned to firm customer classes through a Firm Credit Adjustment ('FCA'). Thereafter, the margin would be shared by crediting the firm customer classes with 80 percent of margins received, with WGL retaining 20 percent. Under this formula, firm customers were compensated for the initial assignment of the $4.642 million of non-gas costs to them if WGL obtained just over $8 million in margins from interruptible customers."
 
[***7] 79 Md. PSC at 340.

   The percentage of margin over $6 million credited to firm customers was raised to 90% in 1988 in Case No. 8119. Id. at 341. The FCA is redetermined quarterly, based on figures for the preceding twelve months, and it is paid to firm customers monthly. The FCA paid to a particular customer is reflected on that customer's WGL bill as a dollar amount of credit determined by multiplying the FCA, converted into a factor per therm per month, by the number of therms used by the customer.

   Because part of the margin is paid over by WGL to firm customers, only that part of the margin that WGL retained from the PEPCO sales was included in gross income by WGL on its federal and Maryland income tax returns for the years in question. This can be demonstrated by using the relevant numbers from WGL's federal income tax return for fiscal year 1990. Part of that return is a special schedule headed, "Detail of Gross Receipts." It reads as follows: 

"Line
1      Operating Revenues Prior to
       FCA Adjustment to Firm
       Ratepayers from Chalk Point
       Sales
                                    681,503,856.10
2     Total Chalk Point Sales       21,908,832.95
3      90% of Net Margins Applicable
       to Sale of Gas to Pepco
      Credited to Firm Ratepayers   (1,093,655.00)
4     Total Operating Revenues      702,319,034.05
5      Revenues from Merchandising
      & Jobbing                     2,048,599.34
6      Gross Receipts per Federal
      Income Tax Return             704,367,633.39"

 
[***8]  [*600]
(Footnote omitted). On a "Statement of Consolidated Taxable Income" for WGL and subsidiaries that was included by WGL as part of its federal return, an element of total income for WGL was "Gross Receipts" reported at the same $704,367,633.39. After deductions, WGL reported taxable income on its federal return of $85,560,487.50. Worksheets of the Maryland Income Tax Division auditor reflect that $85,560,487 was reported by WGL as its taxable income per federal return on line one of form 500, the Maryland corporate income tax return. n2 

n2 WGL's Maryland tax returns for the years in question are not in evidence in this case.

   WGL excluded the FCA from its gross income for the federal and Maryland returns in reliance on the "claim of right" doctrine recognized in North Am. Oil Consol. v. Burnet, 286 U.S. 417, 52 S. Ct. 613, 76 L. Ed. 1197 (1932). There the Court stated that "if a taxpayer receives earnings under a claim of right and without restriction as[***9] to its disposition, he has received income which he is required to [report on his] return ...." Id. at 424, 52 S. Ct. at 615. Conversely, reasons WGL, if the taxpayer has no claim of right to funds received, the funds are not income.

   Following an audit of WGL, the Comptroller asserted that the part of the margin on PEPCO sales credited to firm customers was subject to Maryland income tax and assessed[*601] WGL for a deficiency. In calculating the assessment, the auditor classified WGL's federal taxable income between utility income and nonutility income. Utility income represented gross receipts subject to the franchise tax on public service companies that is excluded from federal taxable income in arriving at Maryland modified income while nonutility income represented federal taxable income included in Maryland modified income. The auditor then deducted the amount of the FCA for the taxable year from utility income and added that amount to nonutility income. For example, for FY 1990 utility income was reduced by $1,093,655, the amount of the FCA for that year, and nonutility income was increased by $1,093,655. The effect [***10] of the adjustment was to reduce the amount of the "gross receipts subject to the public service company franchise tax" that is subtracted from federal taxable income and to increase [**244] the Maryland modified income upon which Maryland corporate income tax is paid. n3 

n3 The State Department of Assessments and Taxation administers the Public Service Company Franchise Tax. TG §§ 8-404 and 1-101(g). In 1986 the Department had ruled that receipts from WGL's sales to PEPCO were not subject to the gross receipts tax because the gas sold to PEPCO was used by PEPCO to generate electricity and PEPCO's sales to its customers were subject to the gross receipts tax. The validity of the assessment against WGL for income taxes that is the subject of the case before us does not depend on this ruling by the Department. Although the FCA is part of the receipts derived by WGL from its sales to PEPCO, WGL pays no Maryland franchise tax on those receipts, and WGL does not contend that the FCA is excluded, as receipts subject to the franchise tax, in determining Maryland modified income.

   The Maryland Income Tax law has been amended so that the statute now generally conforms to the Department ruling. See Md. Code (1988, 1994 Cum. Supp.), TG § 8-401(b)(3)(iii).

[***11]

   WGL appealed the Comptroller's assessment to the Maryland Tax Court which reversed the assessment. The Tax Court, in an oral opinion from the bench, considered determinative
 
"the unusual and unique arrangement that spells out from the very beginning that ninety percent of this margin can never flow to the benefit of [WGL]. That it is mandated by[*602] the agreement with the Public Service Commission that it must flow in a different direction."

   The Comptroller sought judicial review by the Circuit Court for Anne Arundel County. That court affirmed the Maryland Tax Court. The circuit court concluded that the FCA "was for the benefit of firm customers" and that "the Tax Court was not erroneous in its finding that [WGL] simply acted as a conduit or fiduciary for purposes of crediting any monies due to [WGL's] firm customers."
 
The Comptroller then appealed to the Court of Special Appeals. This Court on its own motion issued the writ of certiorari prior to consideration of the matter by the Court of Special Appeals.

   In making the assessment the Comptroller's Income Tax Division analyzed the FCA in the following fashion:

   "The gross receipts received from sales to PEPCO's Chalk Point Plant [***12]are reflected in the computation of federal taxable income which is the starting point for determining Maryland taxable income. The fact that [WGL] must, according to its special arrangement, provide a credit to its customers equal to 90 percent of the profit is not relevant at this point in the determination of their Maryland taxable income.... The 90 percent credit must be considered separate and apart from the receipts derived from the sales of gas to PEPCO's Chalk Point Plant. This being the case, the only way in which the credit can be taken into account is if there is a subtraction modification provided under the Maryland law. Clearly, since there is no such subtraction modification, it cannot be taken into account."
 
As we have seen above, WGL did not in fact include the FCA in its gross income on its federal returns.

   In this Court the Comptroller in essence contends that the claim of right doctrine does not apply to the facts presented here. Each side relies on a different federal court decision in an income tax case involving a public utility to support its position. [*603]

   WGL relies on Illinois Power Co. v. Commissioner of Internal Revenue, 792 F.2d 683 (7th Cir. 1986).[***13] There Illinois Power was ordered by the Illinois Commerce Commission, the regulatory agency, to raise its rates to certain customers in order to reduce the demand for electricity. The order clearly stated that Illinois Power would not be permitted to retain the additional revenues, referred to as Rider R revenues. The order, however, did not provide any directions as to how, when or to whom the funds would be distributed. Nor did the order fix in advance the interest to be paid when the Rider R revenues were disbursed, although it was clear that there would be an interest obligation. Illinois Power owned the Rider R funds until ordered to distribute them. Five years later, the agency decided to distribute the funds by means of a credit on the utility bills of all Illinois Power customers, together with interest at a rate equal to the rate of return that the agency allowed to Illinois Power. The United States Tax Court held that the receipts were income to Illinois Power[**245] when received. 83 T.C. 842 (1984).

   In reversing the decision of the Tax Court, the Seventh Circuit pointed out that the Rider R revenues were ordered to be collected for conservation purposes [***14] and that Illinois Power had no greater beneficial interest in the revenues than a bank has in its deposits. Illinois Power, 792 F.2d at 688-89. According to the court, the "underlying principle is that the taxpayer is allowed to exclude from his income money received under an unequivocal contractual, statutory, or regulatory duty to repay it, so that he really is just the custodian of the money." Id. at 689. The court summed up by emphasizing the following factors:
 
"Not only did Illinois Power know from the start that it would have to pay back the money; the Illinois Commerce Commission made clear from the start that the company would also have to turn over any interest earned on the money. Illinois Power could thus derive no benefit at all from having held the money. It was an unpaid collection[*604] agent, like an employer forced to collect his employees' social security taxes for the government."
  
Id. at 690.
 
On the other hand, the Comptroller relies on Iowa Southern Utilities Co. v. United States, 841 F.2d 1108 (Fed. Cir. 1988). In order to pay the financing [***15]costs of constructing a power plant, Iowa Southern obtained authorization in the form of a stipulation and order from the Iowa State Commerce Commission to assess a special surcharge on electric service to customers. The surcharge would be assessed during the last three years of construction. After the plant began operating, the amount collected as surcharge would be refunded, "unconditionally" and with interest, over thirty years through a negative surcharge. The surcharge was implemented despite an Internal Revenue Service ruling that the surcharge would be income to Iowa Southern when collected, and that the negative surcharge would lower taxable income when applied. The utility paid tax under protest, sued for a refund in the United States Claims Court, and lost. 11 Cl. Ct. 868 (1987).

   The Federal Circuit affirmed, rejecting, inter alia, an argument that the surcharge was a loan. The court stated that the stipulation and order established no liability; "rather, all that they accomplish is a declaration of regulatory policy: that rates shall be raised in certain years and then lowered in subsequent years to offset the increase." Iowa Southern, 841 F.2d at 1111. [***16]In distinguishing Illinois Power, the court in Iowa Southern pointed out that while Illinois Power received no benefit from the transaction, Iowa Southern benefitted by having the financing costs of the construction covered by the surcharge. Id. at 1112.
 
In Commissioner of Internal Revenue v. Indianapolis Power & Light Co., 493 U.S. 203, 110 S. Ct. 589, 107 L. Ed. 2d 591 (1990), the utility company, in order to insure payment, required and held deposits from its less creditworthy customers. If a customer later met the utility's credit standards, the customer could receive a refund of the deposit or have the[*605] deposit applied to future utility bills. In its financial reporting the utility carried the deposits as liabilities. At issue was whether the funds were prepayments and, thus, income. The Court held that the utility company did not have complete dominion over the funds, as there was an express obligation to repay, and the repayment was controlled by the customer. The Court stated that "in determining whether a taxpayer enjoys 'complete dominion' over a given sum, ... the key is[***17] whether the taxpayer has some guarantee that he will be allowed to keep the money." Id. at 210. Although the utility realized some economic benefit from holding the deposits, it did not have sufficient control over the funds to constitute income to it. Id. at 214.

   Under the Maryland income tax system "to the extent practicable, the Comptroller shall apply the administrative and judicial interpretations of the federal income tax law to the administration of the income tax laws of this State." § 10-107. The instant case is a stronger case for the taxpayer than Illinois Power because of the shorter time between [**246] collection and disbursement of the funds. Here, under no circumstances was WGL allowed to retain for itself any of the FCA portion of receipts from PEPCO, and WGL had no control over the Commission-ordered disposition of the FCA funds. WGL received payment on PEPCO sales with full knowledge of its duty continuously to credit the bills of firm customers with the FCA portion of those receipts. Similar to Illinois Power, WGL did not benefit from receipt[***18] of the FCA portion of the PEPCO receipts and did not have discretion or control over its disposition. The FCA portion of the receipts of WGL on sales to PEPCO is not income to WGL. Accordingly, the circuit court did not err in affirming the Maryland Tax Court.
 
JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AFFIRMED. COSTS TO BE PAID BY THE COMPTROLLER OF THE TREASURY. 

 
MARYLAND AGGREGATES ASSOCIATION, INC. et al. v. STATE OFMARYLAND et al. 
No. 40, September Term, 1994
 
COURT OF APPEALS OF MARYLAND
 
1994 Md. LEXIS 143

 November  7, 1994, Filed

   PRIOR HISTORY: [*1]

   Appeal from the Circuit Court for  Anne Arundel  County pursuant to certiorari to the Court of Special Appeals. James C. Cawood, Jr., JUDGE

COUNSEL: ARGUED BY Richard A. Reid (Royston, Mueller, McLean & Reid, on brief, of Towson, MD.; William A. Franch, Franch & Jarashow, P.A., of Annapolis, MD, on brief), FOR PETITIONER.
 
ARGUED BY Sharon B. Benzil, Assistant Attorney General, (J. Joseph Curran, Jr., Attorney General on brief, Michael A. Millemann, of Baltimore, MD on brief), FOR RESPONDENT.

JUDGES: ARGUED BEFORE Murphy, C.J.; Eldridge, Rodowsky, Chasanow, Karwacki, Bell, and Raker, JJ.

OPINIONBY: ROBERT C. MURPHY

OPINION: ORDER

   For reasons to be stated in an opinion later to be filed, it is this 7th day of November, 1994,

   ORDERED, by the Court of Appeals of Maryland, a majority of the Court concurring, that the judgment of the Circuit Court for Anne Arundel County is affirmed; and it is further

   ORDERED, that the injunction issued on August 16, 1994 by the Circuit Court for Anne Arundel County prohibiting the State from implementing the statute in question while the appeal was pending be, and it is hereby, vacated, and it is further

   ORDERED, that the mandate shall issue forthwith and the costs shall be paid by the [*2] appellants.

   Robert C. Murphy
 
   Chief Judge 

JOHN H. PETRINI v. DEBRA B. PETRINI 
No. 15, September Term, 1994
 
COURT OF APPEALS OF MARYLAND
 
336 Md. 453; 648 A.2d 1016; 1994 Md. LEXIS 139
 
   October  25, 1994, Filed

   PRIOR HISTORY: [***1] Certiorari to the Court of Special Appeals. (Circuit Court for  Anne Arundel  Co.). Martin A. Wolff, JUDGE

DISPOSITION: JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED. COSTS TO BE PAID BY PETITIONER.

CORE TERMS:  gift, actual income, child support, guidelines, custody, take-home, child support obligation, best interest, impoverished, support obligation, divorce, calculating, particular case, chancellor, health insurance, child custody, case law, inappropriate, raising, unjust, Family Law Article, sound discretion, living expenses, joint custody, illeostomy, full-time, rent-free, subsidies, premiums, salary

COUNSEL: ARGUED BY Steven P. Resnick of Annapolis, MD, FOR PETITIONER.
 
ARGUED BY Steven R. Migdal (Snider, Buck & Migdal, Chtd. on brief) all of Annapolis, MD, FOR RESPONDENT.

JUDGES: ARGUED BEFORE Murphy, C.J.; Eldridge, Rodowsky, Chasanow, Karwacki, Bell, and Raker, JJ.

OPINIONBY: MURPHY

OPINION: [*457]
 
[**1018] OPINION BY MURPHY, C.J.

   The principal question presented is whether a trial court can consider non-cash gifts to a parent in determining the amount of that parent's actual income for the purpose of calculating his child support obligation pursuant to Maryland's Child Support Guidelines. See Maryland Code (1984, 1991 Repl. Vol.) §§ 12-201 et seq. of the Family Law Article. n1 Also[*458] to be considered is the extent of a trial judge's discretion in making a decision concerning an award of child custody.

 n1 Unless otherwise indicated, all statutory references are to the Maryland Code (1984, 1991 Repl. Vol.) Family Law Article.

[***2]

   I.

   Petitioner John Petrini (John) and Respondent Debra Petrini (Debra) were married on October 9, 1984. The couple had one child: Edgar Jacob Petrini, III (Eddie) who was born on July 23, 1987. The Petrinis separated several times during their almost eight year marriage. On July 9, 1989, Debra left the marital home for good and on July 25, 1990, she filed a Complaint for Divorce in the Circuit Court for Anne Arundel County; she sought custody of Eddie along with child support and attorney's fees. John filed a Counter-Complaint for Divorce in which he too prayed for custody of Eddie and for child support.

   After a four day trial, the court (Wolff, J.) granted Debra a divorce. It awarded sole custody of Eddie to Debra, allowing John liberal visitation with his son. While the parties initially petitioned for joint custody of their son, the court concluded that joint custody would not be in Eddie's best interest. The court also awarded child support in the amount of $81.31 per week to Debra. Although the court found John's take-home income to be only $14,063.00 in 1991, it found that his mother allowed her son to reside in one of her homes rent-free, that she paid the expenses relating[***3] to his illeostomy bag, and that she paid Eddie's health insurance premiums. n2 Respectively, these items had a value of $688.00 per month, $600.00 per year, and $1,392.00 per year. The court determined that these items constituted "actual income" to John, as that term is defined in § 12-201(c)(4)(iii). The court, therefore, increased the amount of actual income received by John by $10,248.00 to reflect these "gifts" and thereby calculated John's "actual income" to be $24,311.00 for purposes of computing[*459] the amount of his child support obligation under the statutory guidelines. n3 

n2 The court found Debra's income to be approximately $12,000.00 in 1991.

n3 The court did not factor in all the monetary contributions that John's mother made to subsidize her son's living expenses. It did not consider the clothing, gas, food, and credit card payments that the mother made for her son because the court was unsure for how long and to what extent these "gifts" would continue. Nor did it consider numerous cash gifts which the mother made to John on a regular and continuing basis.

[***4]

   The court also ordered John to contribute $3,000.00 toward the cost of Debra's legal expenses. It explained the basis for its rulings on support, attorney's fees, and custody in a detailed oral opinion on May 13, 1992. Thereafter, John noted an appeal to the Court of Special Appeals, seeking a reversal of the court's judgment as to the award of child support, attorney's fees, and child custody. The intermediate appellate court, in an unreported opinion, affirmed the judgment of the lower court. We granted certiorari to consider the important issues raised in the case.

   II.

   We first consider whether the trial court properly determined the amount of child support to which Debra was entitled when it increased John's annual take-home income to account for the "gifts" received from his mother. We next determine whether the trial court abused its discretion by requiring John to contribute $3,000.00 to the cost of his former wife's legal expenses. And, finally, we decide whether the trial court properly applied the "best interest" of the child standard in awarding sole custody of Eddie to his mother.

   A.

   Child Support
 
That both parents have a legal as well as a moral obligation to [***5] support and [**1019] care for their children is well-settled in Maryland. This legal duty is based on both common law and statutory authority. See § 5-203(b)(1). See also Middleton[*460]  v. Middleton, 329 Md. 627, 631-33, 620 A.2d 1363 (1993). In making an award of child support, it is for the trial judge to set an amount reasonably calculated to maintain as nearly as possible the standard of living enjoyed by the child prior to the parents' divorce.

   In February of 1989, the General Assembly put into effect statutory Child Support Guidelines (the guidelines), which were adopted by adding Subtitle 2 to Title 12 of the Family Law Article. n4 The purpose of the guidelines was to limit the role of trial courts in deciding the specific amount of child support to be awarded in different cases by limiting the necessity for factual findings that had been required under pre-guidelines case law. n5 The legislature also intended the guidelines to remedy the unconscionably low levels of many child support awards when compared with the actual cost of raising children, to improve the consistency and equity of child support awards, and to increase the efficiency[***6] in the adjudication of child support awards. Voishan, supra , 327 Md. at 322. See also Tannehill v. Tannehill, 88 Md. App. 4, 11, 591 A.2d 888 (1991). To accomplish these goals, the legislature promulgated certain uniform calculations that must be made in making any child support determination. n6 

n4 For a good discussion of the genesis and the proper application of Maryland's Child Support Guidelines, see Judge Chasanow's opinion, for the Court, in Voishan v. Palma, 327 Md. 318, 322-24, 609 A.2d 319 (1992).

n5 Pre-guidelines support awards were determined by trial courts by balancing the best interests and needs of the children with their parents' financial ability to meet those needs. Unkle v. Unkle, 305 Md. 587, 597, 505 A.2d 849 (1986). Other factors taken into consideration by courts in exercising their discretion were the partys' station in life, their age and health, and possible future educational expenses. Id.

n6 The procedures for determining the appropriate amount for a support award are set forth in § 12-204.

[***7]

   While the Child Support Guidelines were merely advisory when they were first adopted, their use became mandatory when ch. 58 of the Acts of 1990 was enacted. A rebuttable presumption was thereby created that an award reached by[*461] applying the guidelines is the proper amount of child support to be awarded. Voishan, supra, 327 Md. at 323-24. This presumption can be rebutted by showing evidence that applying the guidelines would be unjust or inappropriate in a particular case. The legislature set forth certain criteria that should be considered in determining whether the application of the guidelines would be unjust or inappropriate. n7 See § 12-202(2). If the court does conclude that the application of the guidelines would be unjust or inappropriate, it must make a written or oral finding on the record explaining its departure from the established guidelines. Walsh v. Walsh, 333 Md. 492, 501-502, 635 A.2d 1340 (1994).

n7 These criteria include the terms of any existing separation or property settlement agreement or court order that provide for the financial support of minor children and the existence of other children to whom either parent already owes a duty of support. See § 12-202(a)(2)(iii).

[***8]

   A basic child support obligation is determined using the schedule for that purpose set forth in § 12-204(e); it is divided proportionately between the parents in relation to their "adjusted actual incomes." n8 According to § 12-201(c), "actual income" is defined as "income from any source." n9 In addition to the categories of actual income [**1020] mentioned in § 12-201(c)(3), [*462] § 12-201(c)(4) provides that "based on the circumstances of the case, the court may [also] consider the following items as actual income: (i) severance pay; (ii) capital gains; (iii) gifts; or (iv) prizes" for the purpose of determining a party's child support obligation. (Emphasis supplied) The types of "gifts" that may be includable as part of a parent's actual income in a particular case is within the court's discretion, and should only be reversed if it acted arbitrarily in exercising its discretion or if the judgment on the matter was clearly wrong. Gates v. Gates, 83 Md. App. 661, 663, 577 A.2d 382 (1990). See also Kramer v. Kramer, 26 Md. App. 620, 636, 339 A.2d 328 (1975).

 n8 "Adjusted actual income" is actual income less "(1) preexisting reasonable child support obligations actually paid; (2). . .alimony or maintenance obligations actually paid; and (3) the actual cost of providing health insurance coverage for a child for whom the parents are jointly and severally responsible." See § 12-201(d). In addition, work-related child care expenses, extraordinary medical expenses, and school and transportation expenses may be added to the basic child support obligation. See § 12-202(g), (h), and (i). 

[***9] 

n9 According to § 12-201(c)(3), "actual income" includes, but is not limited to:
 
(i) salaries; (ii) wages; (iii) commissions; (iv) bonuses; (v) dividend income; (vi) pension income; (vii) interest income; (viii) trust income; (ix) annuity income; (x) Social Security benefits; (xi) workers' compensation benefits; (xii) unemployment benefits; (xiii) disability insurance benefits; (xiv) alimony or maintenance received; and (xv) expense reimbursements or in-kind payments received by a parent in the course of employment, self-employment, or operation of business to the extent the reimbursements or payments reduce the parent's personal living expenses.

   The General Assembly intentionally designed the guidelines to place decisions concerning whether "gifts" to a parent should be considered part of that person's "actual income," and the items properly to be considered "gifts," within the sound discretion of the trial court. This intent is clear upon review of the legislative history of the guidelines. Initially, the legislature included "gifts" as part of § 12-201(c)(2), which enumerates an extensive [***10]list of categories of things that must be considered in calculating a parent's "actual income." Before the guidelines reached their final form, however, § 12-201 was revised and the category of "gifts" was taken out of § 12-201(c)(2) and put into § 12-201(c)(4), which specifically leaves the decision concerning whether certain contributions to a person's well being should be considered part of that party's "actual income" within the sound discretion of the trial court, taking into account the totality of the circumstances.

   John argues that the court abused its discretion when it increased his take-home income to reflect the "gifts" that he received from his mother. These "gifts," as we earlier discussed, included rent-free housing valued at $688.00 per month, the expenses surrounding John's illeostomy valued at $600.00 per year, and the cost of Eddie's health insurance premiums valued at $1,392.00 per year. John maintains that these items do not amount to "gifts" within the meaning of § 12-201(c)(4). His primary argument is that he receives no[*463] tangible funds from these non-liquid and non-marketable assets from which he can pay an increased level of child support. John further [***11] argues that even if the contributions made to him do constitute "gifts" under the guidelines, they should not have been considered part of his actual income under the circumstances of his case. He attempts to illustrate the inequity of attributing what he calls "phantom income" to him by asserting that doing so leaves him with a negative after-tax income.

   Neither the legislature in the statute, nor the courts in existing case law, have specifically defined what the word "gifts" means in the context of the guidelines. Thus, we must undertake to extrapolate its meaning from its general usage. Webster's Third New International Dictionary 956 (1981) defines a "gift" as "something that is voluntarily transferred by one to another without compensation." Black's Law Dictionary 688 (6th ed. 1990) defines a "gift" as "a voluntary transfer of property to another made gratuitously or without consideration." The benefits conferred upon John by his mother fit within both of these definitions. n10 

n10 New York's child support guidelines include a similar provision to Maryland's § 12-202(c)(4). According to art. 13, § 240 1-b(b)(5)(iv) of the New York Consolidated Laws Service, "at the discretion of the court, the court may attribute or impute income from, such other resources as may be available to the parent, including, but not limited to: (A) non-income producing assets,. . .and (D) money, goods, or services provided by relatives or friends." These categories seem to encompass the same sort of contributions to a parent's income as the General Assembly might have intended to include when it used the term "gifts."

[***12]

   As we see it, the General Assembly purposely did not define with pin-point precision what it intended the term "gifts" to encompass under the guidelines; rather it afforded trial courts the latitude to consider all the relevant circumstances in a particular case before making any determination about what should be considered in calculating a parent's support obligation. Some of the considerations that might be[*464] made by a trial judge include: a parent's actual ability to pay the specified child support award, any lack of liquidity or marketability of a party's assets, the fact that a parent's take-home income is not an accurate reflection of his or her actual [**1021] standard of living, and whether either party is voluntarily impoverished. All of these factors came into play in this case and were considered by the trial court in making its award.

   Our limited task is to determine whether the trial court abused its discretion in deciding that the gifts conferred upon John constitute actual income under § 12-201(c)(4). The trial court, in its opinion, stated that "the guidelines tell us, that if you get [gifts], they're to be considered as income, cause it's something you don't have to spend for." [***13] We agree that when the Child Support Guidelines were formulated the drafters took into consideration the fact that everyone has certain basic living expenses, such as room and board, which must be paid out of their take-home income. Thus, if a parent is relieved of some of these expenses through outside contributions, it may be appropriate under certain circumstances to increase the parent's actual income to account for such contributions. Manifestly, these benefits may have the effect of freeing up other income that may not have otherwise been available to pay a child support award. In considering the circumstances surrounding John's financial situation, the court decided that the most equitable resolution required inclusion of the subject benefits conferred upon John as part of his actual income. The evidence presented at trial supported this conclusion by the court. It established that John has never needed to engage in full-time employment because his mother in addition to providing him with rent-free lodging, paying health insurance premiums, and covering the cost of his illeostomy bag, also paid some of his daily living expenses -- such as food, gas, and clothing -- as well [***14] as giving him large cash payments to do with as he wished. Essentially, John's mother paid for things that he would otherwise have been responsible for paying for himself out of his take-home salary. [*465]

   The trial court also found that because John always seemed to have resources available to buy whatever he needed or wanted, he could afford to work only when he felt like it. n11 John admitted that he has received regular subsidies of approximately $500.00 per week from his mother over a long period of time to supplement his income as a part-time boatyard mechanic. n12 He accounted for these subsidies as "additional income" on his financial affidavit submitted to the court in this case. Therefore, the trial court found that John's take-home income was not an accurate measure of his ability to pay child support for Eddie. 

n11 John's own witness, his employer Robert Noyce, testified that John had the ability and experience to earn between $17.50 and $35.00 per hour if he had worked full-time in the marina business in 1991, the year prior to the parties' divorce. John reported a gross income of only $15,389.00 in 1991, a figure far less than this purported potential earning capacity.

[***15] 

n12 Even though John admitted in court that he received approximately $500.00 per week in gift subsidies from his mother, the trial court only added the equivalent of $200.00 per week to his take-home salary to arrive at the actual income which was to be used in calculating his support obligation.

   The Court of Special Appeals dealt with a somewhat similar situation in Goldberger v. Goldberger, 96 Md. App. 313, 624 A.2d 1328 (1993), cert. denied, 332 Md. 453, 632 A.2d 150 (1993). In that case, Aron Goldberger, an Orthodox Jew, purportedly had devoted his entire life to the study of the Torah/Talmud. As a consequence, he had never been employed at an income-producing vocation, even before he got married and had children. He had been supported by others -his parents, his father-in-law, and friends in the Orthodox community -- throughout his entire life, and thus had consistently relied upon the charity of others to provide his family with the necessities of life.

   Based on these circumstances, the trial court[***16] found that Goldberger was "voluntarily impoverished." Because he had no "actual income" as defined by the guidelines, the court imputed what it found to be his "potential income" based on[*466] various delineated factors. n13 See § 12-201(b). In finding Goldberger [**1022] to be voluntarily impoverished, the Court stated:
 
[a] parent who chooses a life of poverty before having children and makes a deliberate choice not to alter that status after having children is also "voluntarily impoverished." Whether the voluntary impoverishment is for the purpose of avoiding child support or because the parent simply has chosen a frugal lifestyle for another reason, doesn't affect that parent's obligation to the child. Although the parent can choose to live in poverty, that parent cannot obligate the child to go without the necessities of life. A parent who brings a child into this world must support that child, if he has or reasonably could obtain, the means to do so. The law requires that parent to alter his or her previously chosen lifestyle if necessary to enable the parent to meet his or her support obligation.
 
Goldberger, supra, 96 Md. App. at 326-27.

n13 These factors include a person's age; mental and physical condition; assets; educational background, special training, or skills; prior earnings; efforts to find and retain employment; the status of the job market in the area where the parent lives; actual income from any source; and any other factor bearing on the parent's ability to obtain funds for child support. Goldberger, supra, 96 Md. App. at 327-28.

[***17]

   According to this analysis, John might have been considered "voluntarily impoverished," but the court did not so find. Instead it determined that because John did not work full-time on a regular basis, and because he did not stop working up to his potential just to avoid paying child support to his son, he was not voluntarily impoverished as defined by the case law. Rather, as we have said, the court, exercising its discretion, considered the "gifts" from his mother as part of John's actual income in calculating his support obligation. Supportive of this determination is the case of Walsh, supra, 333 Md. at 502, holding that a husband's obligation to pay part of the mortgage payment on a family home in which his former wife and children lived under a use and possession order was to be considered income to the wife, resulting in a [*467]reduction of the husband's income for the purpose of calculating his support obligation under the guidelines. Here, as in Walsh, money is made available to the party benefitting from the contribution that would not have otherwise been available to pay this ordinary living expense.

   John's final argument is that his mother's contributions may not[***18] continue indefinitely, and that no account was taken of this likely eventuality. Of course, should John's mother become unable or unwilling to continue supporting her son in the fashion that she has maintained over the past several years, John may petition the court for a modification of his child support obligation based upon a showing of a "material change of circumstances." See § 12-104.

   We thus conclude that the trial court, in the circumstances of this case, properly considered the subject gifts supplied to John by his mother on a regular basis, thereby justifying the increase in John's "actual income" by approximately $10,000.00 in calculating his child support obligation under the guidelines.

   B.

   Attorney's Fees
 
According to § 12-103, a trial court may award to either party "the costs and counsel fees that are just and proper under all the circumstances in any case in which a person applies for a decree. . .concerning the custody, support, or visitation of a child of the parties." Section 12-103 goes on to state that before a court can award such costs and fees, it must consider "the financial status of each party; the needs of each party; and whether there was substantial [***19] justification for bringing or defending the proceeding." When the case permits attorney's fees to be awarded, they must be reasonable, taking into account such factors as labor, skill, time, and benefit afforded to the client, as well as the financial resources and needs of each party. Brown v. Brown, 204 Md. 197, 213, 103 A.2d 856 (1954). See also Waters v. Waters, 191 Md. 436, 441, 62 A.2d 250 (1948).
[*468]  
Decisions concerning the award of counsel fees rest solely in the discretion of the trial judge. Jackson v. Jackson, 272 Md. 107, 111-12, 321 A.2d 162 (1974). The proper exercise of such discretion is determined by evaluating the judge's application of the statutory criteria set forth above as well as the consideration of the facts of the particular case. Id. at 112. Consideration of the statutory criteria is mandatory in making the award and failure to do so constitutes legal error. Carroll County v. Edelmann, 320 Md. 150, 177, 577 A.2d 14 (1990). [**1023] An award[***20] of attorney's fees will not be reversed unless a court's discretion was exercised arbitrarily or the judgment was clearly wrong. Danziger v. Danziger, 208 Md. 469, 475, 118 A.2d 653 (1955). See also Broseus v. Broseus, 82 Md. App. 183, 200, 570 A.2d 874 (1990).

   Consistent with these decisions, the court looked to the parties' needs and resources; their financial status; the labor, skill, and time expended by each party's attorney; and the benefit to the child of awarding attorney's fees to the mother. In addition, the court allowed John to pay the $3,000.00 award in twelve monthly installments. We find no error in the counsel fee award.

   C.

   Child Custody
 
Child custody awards have traditionally been predicated on the "best interest" of the child involved. See e.g. Monroe v. Monroe, 329 Md. 758, 769, 621 A.2d 898 (1993); McCready v. McCready, 323 Md. 476, 481, 593 A.2d 1128 (1991); Taylor v. Taylor, 306 Md. 290, 303, 508 A.2d 964 (1986); Ross v. Hoffman, 280 Md. 172, 174-75, 372 A.2d 582 (1977);[***21] Hild v. Hild, 221 Md. 349, 357, 157 A.2d 442 (1960). That which is in a child's best interest is not always easy to determine. As we pointed out in Taylor, supra, 306 Md. at 303:
 
formula or computer solutions in child custody matters are impossible because of the unique character of each case, and the subjective nature of the evaluations and decisions that[*469] must be made. At best we can discuss the major factors that should be considered in determining [which parent should be given custody], but in doing so we recognize that none has talismanic qualities, and that no single list of criteria will satisfy the demands of every case.
 
Therefore, over the years, Maryland courts have set forth a variety of objective criteria to be considered in determining which parent should be awarded custody of their minor children. While custody determinations must be made on a case-by-case basis due to the uniqueness of the fact patterns in such disputes, factors relied upon in past cases can be used to guide the trial court's decision-making process. Ross, supra, 280 Md. at 187-88. In this regard, trial courts are endowed with great[***22] discretion in making decisions concerning the best interest of the child.

   In Hild, supra, 221 Md. at 349, we observed:
 
for the purpose of ascertaining what is likely to be in the best interests and welfare of the child a court may properly consider, among other things, the fitness of the persons seeking custody, the adaptability of the prospective custodian to the task, the age, sex, and health of the child, the physical, spiritual and moral well-being of the child, the environment and surroundings in which the child will be reared, the influences likely to be exerted on the child, and, if he or she is old enough to make a rational choice, the preference of the child. It stands to reason that the fitness of a person to have custody is of vital importance. The paramount consideration, however, is the general overall well-being of the child.
 
An even more comprehensive list of factors to be considered in making custody determinations is contained in Montgomery County v. Sanders, 38 Md. App. 406, 381 A.2d 1154 (1978), which distills the holdings in numerous cases of this Court delineating[***23] the governing criteria. Of course, the controlling factor, or guiding principle, in both custody and adoption cases is not the natural parents' interest in raising the child, but rather what best serves the interest of the child; the paramount[*470] consideration is what will best promote the child's welfare, a consideration that is of "transcendent importance." In Re Adoption No. 10941, 335 Md. 99, 113, 642 A.2d 201 (1994); In Re Adoption No. A91-71 A 334 Md. 538, 561, 640 A.2d 1085 (1994).

   The standard of review in custody cases is whether the trial court abused its discretion in making its custody determination. Davis v. Davis, 280 Md. 119, 125, 372 A.2d 231 (1977), cert. denied, 434 U.S. 939, 54 L. Ed. 2d 299, 98 S. Ct. 430 (1977), reh. denied, 434 U.S. 1025 (1978). In setting forth this standard, we concluded that "when the appellate court views the ultimate conclusion of the chancellor [**1024] founded upon sound legal principles and based upon factual findings that[***24] are not clearly erroneous, the chancellor's decision should be disturbed only if there has been a clear abuse of discretion." Davis, supra, 280 Md. at 126. See also Robinson v. Robinson, 328 Md. 507, 513-14, 615 A.2d 1190 (1992); Domingues v. Johnson, 323 Md. 486, 491-92, 593 A.2d 1133 (1991); Ross, supra, 280 Md. at 186. Particularly important in custody cases is the trial court's opportunity to observe the demeanor and the credibility of the parties and witnesses.

   John argues that the court's decision was not supported, and was in fact contradicted, by its factual findings. He maintains that the court's custody award to Debra was based upon a "gut feeling," and not as a result of factual findings made pursuant to the legally governing criteria. John suggests that because the court found that all but one of the factors considered favored neither party and because the remaining factor appeared to favor him, the award of custody should have been to him. We disagree. The court's decision was based on detailed factual findings and extensive deliberation concerning Eddie's best [***25] interest and we find no abuse of the court's discretion.

   In applying the controlling criteria, the trial court found that, while both parties had suffered from addiction problems[*471] in the past, at the present time they both appear to be "equally fit" to raise their son. Next, it stated that "there's nothing as to the character or reputation of either that would play a factor in deciding custody." With regard to the potentiality of maintaining natural family relations, the court found that the evidence cut both ways. While it recognized that John has a large extended family in the area which can be considered a positive factor, and that Debra does not, it stated that, even though John's family helps him, they "probably help him too much, and probably to the child's detriment" and that such interference was probably one of the causes of the marriage's break-up.

   Next, the court found that Eddie was too young to make a meaningful or rational choice as to the parent with whom he would prefer to live. As to opportunities affecting the future life of the child, the court concluded that neither parent had anything more to offer to the child by way of material advantages than the other parent. [***26] It found that the "gifts" from John's mother were not a factor in determining whether John can offer Eddie any material advantages, especially because John has no control over the extent or duration of these contributions.

   The court found that the age, sex, and health of Eddie had no bearing on which parent should be awarded custody. Both parents' residences were determined to be suitable for raising a minor child. In addition, the court found that Eddie had never been completely separated from either parent; rather he had spent a substantial amount of time with both his parents since Debra left the marital home in July of 1989. Nor did the court find an abandonment or surrender of custody of Eddie by either party at any time.

   John urges that the court's custody award was inappropriately based on what it called a "gut feeling." When taken in context, and the court's decision is considered in its entirety, it is clear that its determination was grounded on far[*472] more than an unsupported whim as John posits. As the court carefully explained, it weighed all the appropriate factors; it considered all the documentary evidence, as well as all the witnesses' testimony; and it took into account[***27] its personal observations and impressions of the parties and witnesses. n14 

n14 The court gave little weight to Patricia Tenanty's opinion that Eddie would be better off living with his father. Ms. Tenanty, a licensed social worker, acted as Eddie Petrini's therapist and in that role she met with Eddie and both of his parents many times, providing therapy for Eddie on approximately 50 occasions. Of course, it was well within the court's discretion to decide which witnesses it found to be credible.

   As we said in Domingues, supra, 323 Md. at 492:
 
The evidence in a given case may be sufficient to support an award of custody to either parent. . . . It is quite often the case that both parents are entirely "fit" to have legal and/or physical custody of a child, but joint custody is not feasible. In [**1025] such cases, the chancellor must exercise his or her independent discretion to make the decision. . . . In the final analysis, the decision must be made by the chancellor.
 
Based on its factual findings, the court's[***28] award was not clearly erroneous; instead it constituted a lawful exercise of the sound discretion vested in it.
 
JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED. COSTS TO BE PAID BY PETITIONER. 

                       
THE BANK OF GLEN BURNIE v. LOYOLA FEDERAL SAVINGS BANK 
No. 145, September Term, 1993
 
COURT OF APPEALS OF MARYLAND
 
336 Md. 331; 648 A.2d 453; 1994 Md. LEXIS 131
 
   October  7, 1994, Filed

   PRIOR HISTORY: [***1] Certiorari to Circuit Court for  Anne Arundel  County. Martin A. Wolff, JUDGE

DISPOSITION: JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY REVERSED AND CASE REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION, COSTS TO BE PAID BY RESPONDENT LOYOLA FEDERAL SAVINGS BANK.

CORE TERMS:  drawee, drawer, forged, forgery, signature, indorsement, double, forged indorsement, holder, payee, finality, effective, warranty, collecting bank, good title, fictitious payee, cashed, presentment, debited, forger, genuine, final payment, loss-causation, bearer paper, collection, qualify, deposited, negotiation, collecting, Law of Bank Deposits

COUNSEL: ARGUED BY Charles W. Ayres, Jr. (John Michael Lis, both on brief) both of Glen Burnie, MD, FOR PETITIONER.
 
ARGUED BY Barkley Clark (C. Lamar Garren, Bruce T. Carton, Piper & Marbury, all on brief) all of Baltimore, MD, FOR RESPONDENT.

JUDGES: ARGUED BEFORE Murphy, C.J.; Rodowsky, Chasanow, Karwacki, Bell, Raker and Wilner, Alan M., Chief Judge of the Court of Special Appeals (specially assigned), JJ.

OPINIONBY: CHASANOW

OPINION:  
[*334] [**454] Opinion by Chasanow, J.

   We are called upon in this case to decide the issue of who bears the loss, as between the collecting bank and the drawee bank, for an improperly paid check bearing both a forged drawer's signature and a forged indorsement (i.e., a "double forgery"). For the reasons set forth below, we hold that where a drawee bank pays on an instrument bearing both a forged drawer's signature and a forged indorsement, the drawee bank is liable for the loss.

   I.

   This case arises out of an action filed in August, [***2] 1992, by Richard and Nancy Tinkler in the District Court of Maryland sitting in Anne Arundel County against Loyola Federal Savings Bank (Loyola) and the Bank of Glen Burnie (Glen Burnie) to recover funds that were debited from their account in payment of several checks that turned out to contain forgeries. In 1991, the Tinklers' daughter, Nina Tinkler (Nina), stole a number of blank checks from her parents' home that were drawn on a home equity checking account the Tinklers maintained at Loyola. Between May 13 and May 28, 1991, Nina Tinkler presented ten of these checks at three different Glen Burnie branches to seven different tellers. Nina signed the checks "Nancy Tinkler" as the drawer, indorsed each check as "Nancy Tinkler," and made the checks payable to "Cash." Glen Burnie cashed the ten checks totalling $5,725.00 and disbursed the cash to Nina.

   [*335] Glen Burnie's check cashing policy required its tellers to verify a customer's identification by examining the customer's driver's license. Notwithstanding this requirement, there was no indication on the checks that the tellers checked a driver's license to verify the identity of "Nancy Tinkler." When Glen Burnie presented the ten [***3] checks to Loyola for payment, Loyola debited the Tinklers' account and reimbursed Glen Burnie for the money paid to Nina. When the Tinklers discovered that the checks had been stolen and forged, they notified Loyola and demanded that the funds be credited to their account.

   Glen Burnie and Loyola each denied liability for failing to detect the forgeries, and Loyola refused to credit the Tinklers' bank account. Consequently, the Tinklers filed suit against Loyola and Glen Burnie in the District Court sitting in Anne Arundel County seeking reimbursement from Loyola and Glen Burnie for the banks' improper payments on the forged checks. Loyola and Glen Burnie then filed cross-claims against each other, each alleging that the other was ultimately liable.

   The district court held that the Tinklers were not negligent because they "took all reasonable steps that the court would expect the parties [to take] ..., to prevent any loss." The court then found[*336] Glen Burnie liable for the losses on the checks it cashed, holding that Glen Burnie was in the "best position" to avoid such losses. Pursuant to a Motion to Revise Judgment, the district court entered judgment in favor of the Tinklers against[***4] Loyola in the amount of $7,781.00 (which included the $5,725.00 Loyola [**455]debited from the Tinklers' account to pay the forged checks and $1,206.00 in interest that had accrued on the Tinklers' home equity loan account because of the payment on the forged checks), with costs plus post-judgment interest, and judgment on Loyola's cross-claim against Glen Burnie in the amount of $5,725.00, with costs plus post-judgment interest.

   Glen Burnie appealed to the Circuit Court for Anne Arundel County. The circuit court affirmed the district court, holding Glen Burnie liable because it was "in the superior position to detect the impropriety." We granted certiorari to address the issue of who bears the loss, as between the collecting bank and the drawee bank, for an improperly paid check bearing both a forged drawer's signature and a forged indorsement.

   II.

   The Uniform Commercial Code (U.C.C.), codified at Maryland Code (1975, 1992 Repl. Vol.), Commercial Law Article, §§ 3-101, et seq., n1 provides for loss allocation in cases of either forged indorsements or forged drawer's signatures. The U.C.C. does not, however, specifically allocate liability in cases where an instrument contains both a[***5] forged drawer's signature and a forged indorsement and is paid by both the collecting and drawee banks. n2 See Perini Corp. v. First Nat. Bank of Habersham County, 553 F.2d 398, 402 (5th Cir. 1977)(noting that the U.C.C. does not provide "the yellow brick road to juridical certainty" in double forgery cases); Barkley Clark, The Law of Bank Deposits, Collections and Credit Cards, P 15.02[2][c], at S15-9 (3d ed. Supp. I 1994)(noting that "where both the drawer's signature and the indorsement are forged, the courts are in a dilemma under the current version of the UCC); Payroll Check Cashing v. New Palestine Bank,[*337] 401 N.E.2d 752, 754 (Ind. Ct. App. 1980)(noting that the allocation of loss in a double forgery case depends upon whether the instrument is treated as a forged drawer's signature or a forged indorsement because the U.C.C does not provide for allocation of loss when a double forgery is involved).

n1 Unless otherwise specified, all references to §§ 3-101, et seq. are to the Maryland Code (1975, 1992 Repl. Vol.), Commercial Law Article.

[***6] 

n2 The revised version of the U.C.C., which has been adopted by a slim majority of states, applies principles of comparative negligence to allocate loss between the collecting and drawee banks based on the extent to which each bank contributed to the loss. Thus, classification as either a forged indorsement or a forged drawer's signature is not necessary to a determination of loss allocation. See Revised §§ 3-404(d) and 3-405(b); see Barkley Clark, The Law of Bank Deposits, Collections and Credit Cards, § 15.02[2][c] (3d ed. 1992 & Supp. 1994); see also 6A Ronald A. Anderson, Anderson on the Uniform Commercial Code, [Rev] §§ 3-404:2 and 3-405:2 (3d ed. 1993 & Supp. 1993)(listing states which have adopted the revised version of the U.C.C.). Nevertheless, because the revised version of the U.C.C. has not been adopted in Maryland, our inquiry must be confined to an analysis of the version of the U.C.C. currently codified in Maryland.

   When a drawee bank makes payment on an instrument bearing a forged drawer's signature and a genuine indorsement, the drawee bank is "bound on [its] [***7]acceptance and cannot recover back [its] payment." See § 3-418 cmt. 1. The traditional justification behind the "finality" rule is that the drawee is expected to know the drawer's signature and has the superior ability to detect a forgery. See § 3-418 cmt. 1. The modern justification for the rule is that it is "highly desirable to end the transaction on an instrument when it is paid rather than reopen and upset a series of commercial transactions at a later date when the forgery is discovered." See id.

   In contrast, when a drawee bank makes payment on an instrument bearing a genuine drawer's signature and a forged indorsement, the drawee bank can generally pass liability back to the collecting bank in an action for a breach of the presentment warranty of good title. See §§ 3-417(1)(a) and 4-207(1)(a)(prior transferors warrant that they have "good title to the instrument"). n3 Because a forged indorsement generally does [**456] not confer good title, the drawee bank can recover upstream under a breach of warranty claim "against any person who presented a check bearing a forged indorsement." See Perini, 553 F.2d at 404.

n3 The warranty under § 3-417(1)(a), which is given by any person, is in all relevant respects identical to the warranty under § 4-207(1)(a), which is given only by bank customers and collecting banks.

[***8]

   Because the U.C.C. does not expressly provide for the allocation of loss when the collecting bank and the drawee bank pay on an instrument containing both a forged drawer's signature and a forged indorsement, we must look to our prior [*338]cases and to the legislative intent behind the U.C.C. in determining where to allocate liability in a double forgery case.

   This Court has had only one occasion to address the issue of where to allocate the loss in a double forgery case. Prior to the adoption of the U.C.C., this Court held in Com. & Farm. Nat. Bk. v. First Nat. Bk., 30 Md. 11 (1869), that the loss in a double forgery case should fall on the drawee bank. In so holding, this Court relied on the principle articulated in Price v. Neal, 3 Burr. 1354, 1357 (K.B. 1762), which provided that it is "incumbent upon the [drawee] to be satisfied 'that the bill drawn upon him was the drawer's hand,' before he accepted or paid it ...[,]" to support its conclusion that the drawee bank was liable.

   In Com. & Farm., an individual using the probably fictitious name, John S. Hillan, opened an account at Commercial and Farmers National Bank[***9] (Commercial) and deposited a check for $4,600.15 purporting to be drawn by Horace Abbott. The presenter signed the signature book "John S. Hillan, No. 504 West Fayette Street," and indorsed the check in the same name.  30 Md. at 16. The following day, the check was sent to the clearing house and subsequently reached the drawee bank, First National Bank (First National), which debited Horace Abbott's account. The person using the name Hillan returned to Commercial on another occasion and withdrew $4,500 from his account.  30 Md. at 16-17. Horace Abbott later discovered that the check payable to John S. Hillan was a forgery and notified First National. First National then credited Abbott's account and sued Commercial to recover the money Commercial paid on the forged check.  30 Md. at 17-18.

   In holding First National liable on the forged check, this Court first observed that "the drawee is bound to know the handwriting of his correspondent ... and if it pays in mistake a forged check there is no reason why the loss should be shifted to another innocent party...." 30 Md. at 19. [***10] This Court summarized its holding by noting that:
 
[*339] "The rule of commercial law, that no title can be acquired through a forged endorsement, ... is no doubt clearly settled, but its very statement shows it can have no bearing on such a case as the present. It pre-supposes a genuine negotiable instrument, the title to which can be transferred by a valid endorsement; but it is a solecism to say, any title can be acquired to that which has in fact no existence ... and it matters not in such case what may be the form of the forged instrument, whether payable to order or bearer. It is therefore perfectly immaterial to the rights of the parties to this suit whether the name of John S. Hillan, the payee in the check, was a fictitious name inserted by the forger and endorsed thereon by the person who deposited the check with the defendant, or was the genuine name of the criminal thus acting."
 
30 Md. at 21-22. Thus, pursuant to the holding in Com. & Farm., a drawee bank has the obligation to ensure that the signature of its account holder is genuine and a forged indorsement on an instrument bearing a forged drawer's signature is immaterial, since no [***11] indorsement could ever pass title to such an instrument. Although Com. & Farm. was decided prior to the enactment of the U.C.C., because the U.C.C. is silent regarding the allocation of liability in double forgery cases and Com. & Farm. is the only time this Court has addressed the issue, the decision provides valuable guidance on Maryland legislative intent regarding loss allocation in double forgery cases.

   The Supreme Court, also in a pre-U.C.C. case, held the drawee bank liable for payment on a check bearing both a forged drawer's signature and a forged indorsement. See United States v. Chase Nat. Bank, 252 U.S. 485, 40 S.Ct. 361, 64 L.Ed. 675 (1920). In Chase, the finance clerk to a United [**457] States Army lieutenant took an official check form and forged both the drawer's signature and the indorsement in the name of the lieutenant, and cashed the instrument at the Howard National Bank (Howard). Howard forwarded the check for collection to Chase National Bank (Chase), who then forwarded it to the drawee, the Treasurer of the United States. Two[*340] weeks after the Treasurer paid on the instrument, it discovered the [***12] forgery and demanded repayment. 252 U.S. at 493, 405 S.Ct. at 362, 64 L.Ed. at 678. In holding the United States Treasury liable for the loss, the Court stated that the fact that the indorsement was also forged does not prevent application of the Price v. Neal rule which binds a drawee bank to its acceptance once it pays on a forged drawer's signature. See Chase, 252 U.S. at 495, 40 S.Ct. at 363, 64 L.Ed. at 679-80. The Court concluded by noting that "the forged indorsement puts [the drawee] in no worse position than he would occupy if [the signature] were genuine. He cannot be called upon to pay again and the collecting bank has not received the proceeds of an instrument to which another held a better title." Chase, 252 U.S. at 496, 40 S.Ct. at 363, 64 L.Ed. at 680.

   Following the enactment of the U.C.C., several courts in other jurisdictions have had occasion to decide the liabilities of the respective parties in double forgery cases. These case holdings are consistent with pre-U.C.C. cases holding the[***13] drawee bank liable in double forgery cases. The seminal case addressing the allocation of liability in double forgery cases treats the double forgery as a forged drawer's signature situation and places liability for the improper payment on the drawee bank. See Perini, supra.

   Perini Corporation was a large construction company which utilized a facsimile signature machine for writing its large volume of checks.  Perini, 553 F.2d at 400. A number of Perini's checks were stolen and the thief either gained access to the signature machine or made a perfect copy of the facsimile signature. Perini, 553 F.2d at 401. The facsimile signature on the forged checks was indistinguishable from the signature that was on file at the drawee banks. The stolen checks were subsequently deposited at the Habersham Bank into the account of "Quisenberry Contracting Co." and a signature card was signed in the forged or fictitious name, "Jesse D. Quisenberry." Id. Another account was also opened at Habersham in the name of "Southern Contracting Co." and the depositor again signed "Jesse D. Quisenberry" on[*341] the signature card. Perini checks[***14] totalling over one million dollars were deposited into the accounts. Habersham stamped each check "P.E.G." to guarantee the prior indorsement, and forwarded the checks to Fulton National Bank of Atlanta (Fulton) for collection. Id. Fulton then sent the checks to the drawee banks, Brown Brothers, Harriman & Company (Brown Brothers) and Morgan Guaranty Trust Company of New York (Morgan), both of whom paid the checks. Id. After discovering the forgeries, Perini sued Morgan, Fulton and Habersham to recover the monies paid out to the depositor.  Perini, 553 F.2d at 402. By this time, the depositor had withdrawn almost all of the monies in the account.  Perini, 553 F.2d at 401.

   In assessing liability, the Perini court relied on the U.C.C.'s finality rule of § 3-418 to hold that a double forgery case must be treated as a forged drawer's signature case and the drawee bank must suffer the loss when it pays on an instrument bearing both a forged indorsement and a forged drawer's signature. n4 See Perini, 553 F.2d at 417. One author summarized the Perini holding as follows:

n4 Although the Perini court held that the drawee bank must suffer the loss in a double forgery case, Perini had no recourse against the two drawee banks because of the resolution authorizing the drawee banks to pay checks bearing the facsimile signature of "R. A. Munroe" and absolving those banks of any liability for paying on such instruments.  Perini Corp. v. First Nat. Bank of Habersham County, 553 F.2d 398, 403 (5th Cir. 1977).

[***15]

 
"The Perini case ... stands for the proposition that double forgeries will be treated as forged drawer's signature cases, not forged indorsement cases.... If there is no 'intended payee,' the case should not be cast as a forged indorsement case."
 
Barkley Clark, The Law of Bank Deposits, Collections and Credit Cards, P 805[1], at 8-207 (3d ed. 1990). Subsequent judicial decisions [**458] also treat double forgeries as forged drawer's signature cases and impose liability solely on the drawee bank. See Cumis Insurance Society, Inc. v. Girard Bank, 522 F. Supp. 414, 419 (E.D. Pa. 1981)); Winkie v. Heritage Bank of[*342]  Whitefish Bay, 99 Wis. 2d 616, 299 N.W.2d 829, 836-37 (Wis. 1981); Brighton, Inc. v. Colonial First Nat'l Bank, 176 N.J. Super. 101, 422 A.2d 433, 440 (N.J. Super. Ct. App. Div. 1980), aff'd, 86 N.J. 259, 430 A.2d 902 (N.J. 1981).

    Section 3-418, relied on by the Perini court, provides that "except for liability for breach of warranty on presentment under [ § 3-417], payment or acceptance of any instrument[***16] is final in favor of a holder in due course, or a person who has in good faith changed his position in reliance on the payment." n5 

n5 Contrary to the circuit court's holding in the instant case that the party in the "best position to prevent the loss" should be liable, the negligence standard which served as the basis for that holding has specifically been rejected by the version of the U.C.C. codified in Maryland. See § 3-418 cmt. 4 (noting that the holder's negligence does not affect the finality of payment--only if the holder is not a holder in due course is the finality of payment affected). Thus, the presence or absence of negligence on the part of Glen Burnie is irrelevant in determining whether § 3-418 is applicable to the instant case.

   Section 3-418's finality rule is the codification of the common law rule established by the King's Bench of England in Price v. Neal, 3 Burr. 1354 (K.B. 1762), which provided that once a drawee bank improperly pays a check bearing a forged [***17] drawer's signature, the drawee bank is bound by its acceptance and cannot recover back its payment.  3 Burr. at 1357. The finality rule also corresponds with the policy of encouraging finality in commercial transactions involving checks. See § 3-418 cmt. 1 (stating that "it is highly desirable to end the transaction on an instrument when it is paid rather than reopen and upset a series of commercial transactions at a later date when the forgery is discovered"); Com. & Farm., 30 Md. at 22 (stating that the "safest rule for the commercial public, as well as that most consistent with justice, is to allow the loss to remain where by the course of business it has been placed [on the drawee bank]").

   In the instant case, Loyola initially asserts that Glen Burnie is not protected by the finality rule because the rule is expressly subordinate to a claim for a breach of the presentment warranty of good title under § 3-417. Section 3-417(1)(a) [*343] provides that "any prior transferor warrants to a person who in good faith pays or accepts that ... he has good title to the instrument or is authorized to obtain payment or acceptance on behalf[***18] of one who has a good title." Loyola argues that Glen Burnie breached this presentment warranty because forged indorsements cannot convey good title. Thus, Loyola asserts that it may recover the monies it paid on the forged checks from Glen Burnie based on a claim for breach of the presentment warranty of good title and Glen Burnie is precluded from invoking § 3-418 as a defense to Loyola's breach of presentment warranty claim. We disagree.

   Courts have stated that § 3-417's warranty of title "is nothing more than an assurance that no one has better title to the check than the warrantor, and therefore, that no one is in a position to claim title as against the warrantee, as the payee or other owner of a genuine check could do if his endorsement were forged." Perini, 553 F.2d at 415 (quoting Aetna Life and Casualty Co. v. Hampton State Bank, 497 S.W.2d 80, 84 (Tex. Civ. App. 1973)). Unlike instruments containing only a forged indorsement in which a named payee will come forward with a valid claim of superior title to the instrument, when an instrument contains a double forgery, because both the drawer's signature and the [***19]indorsement are forged, no valid payee or drawer can come forward with a superior claim of title. Thus, in double forgery cases, because no party has better title to the instrument, no breach of presentment warranty exists. See, e.g., Brighton, Inc. v. Colonial First Nat'l Bank, 176 N.J. Super. 101, 422 A.2d 433, 441 (N.J. Super. Ct. App. Div. 1980), aff'd, 86 N.J. 259, 430 A.2d 902 (N.J. 1981)(noting that "the normal hazard encountered in honoring a check bearing the forged indorsement of the payee[,] ... that the forger will be paid, and when the true payee comes forth, his debt will have to be paid" does not exist in doubly forgery cases). Applying the above analysis to the [**459] instant case, Glen Burnie did not breach the warranty of good title because no party exists who can[*344] assert better title to the instrument due to the forged drawer's signature. n6 

n6 We note that in a case when an intermediary bank presents the checks to the drawee bank and the drawee bank subsequently refuses payment based on the forged drawer's signature, the intermediary bank would be able to pass liability upstream pursuant to an action for breach of the transfer warranty under §§ 3-417(2)(b) and 4-207(2)(b) because all of the signatures on the instrument were not genuine. The transfer warranty under §§ 3-417(2)(b) and 4-207(2)(b) does not run to the drawee bank. See Payroll Check Cashing v. New Palestine Bank, 401 N.E.2d 752, 756 (Ind. Ct. App. 1980); see also 1 James J. White & Robert S. Summers, Uniform Commercial Code § 15-9, at 773 (3d ed. 1988).

[***20]

   In addition, the warranty of title merely guarantees that the instrument contains all "necessary" indorsements and that those indorsements are deemed effective. See Firemen's Fund Ins. v. Sec. Pac. Nat. Bank, 85 Cal. App.3d 797, 809-10, 149 Cal. Rptr. 883, 892 (1978), and Longview Bank & Trust v. First Nat. Bank, 750 S.W.2d 297, 298 (Tex. Ct. App. 1988)(both noting that the warranty of good title guarantees that all necessary indorsements are deemed effective). Given that the instruments in the instant case were all bearer paper requiring no indorsements to transfer good title, see §§ 3-111 and 3-202, the forged indorsement cannot establish a breach of presentment warranty in this case because the instrument contained all "necessary" indorsements.

   Although Glen Burnie has not breached the presentment warranty of good title, to enable it to qualify for protection under § 3-418's finality rule, it must either be a holder in due course of the instrument or be a party who in good faith changed its position in reliance on Loyola's payment. n7 As discussed below, Glen Burnie qualifies as a holder in due[***21] course and is entitled to protection under the finality rule. To[*345] qualify as a holder in due course, Glen Burnie must be a holder who takes the instrument for value, in good faith and without notice that there is any defense or claim against it. See § 3-302. One can become a holder through proper negotiation of an instrument. See § 3-202(1). In the case of order paper, proper negotiation is effected by delivery along with any necessary indorsement. In contrast, proper negotiation of bearer paper is effected merely by delivery of the instrument. Id . Contrary to Loyola's suggestion that the checks at issue were order paper, all of the checks were made payable to "Cash" and are therefore bearer paper as defined by § 3-111. Given that the checks were bearer paper, the only condition necessary to make Glen Burnie a holder is delivery. § 3-202. There is no dispute that the checks were delivered to Glen Burnie. Thus, Glen Burnie was a holder of the checks. n8 The next inquiry is whether Glen Burnie took the checks for value. Section 3-303 provides that "[a] holder takes the instrument for value ... to the extent that the agreed consideration has been performed." Glen Burnie performed[***22] the agreed upon consideration when it paid cash to Nina on each of the ten checks. Thus, it took the instruments for "value." See also § 4-209.

n7 Glen Burnie did not change its position in reliance on the final payment from Loyola because Glen Burnie paid cash on all ten checks before Loyola made final payment. See Fireman's Fund Ins. v. Sec. Pac. Nat. Bank, 85 Cal. App. 3d 797, 822-23, 149 Cal Rptr. 883, 900 (1978)(noting that "the determinative fact regarding the issue of reliance is not that the bank gave value, but rather that it changed its legal position only after knowledge of payment by [the drawee bank]")(emphasis added). Thus, Glen Burnie cannot qualify for protection under the finality rule as a party who changed its position in reliance on Loyola's final payment.

n8 We note that in this case, Glen Burnie asked Nina Tinkler to indorse the checks. This indorsement, however, was not necessary in that it did not take the instrument out of the definition of bearer paper and did not prevent Glen Burnie from becoming a holder. The indorsement requested by Glen Burnie was merely for its own protection. It was not required to duly negotiate the instrument. See 1 James J. White & Robert S. Summers, Uniform Commercial Code, § 13-9, at 640 (3d ed. 1988)(stating that "although a party need not indorse bearer paper in order to make his transferee a holder, most persons taking a bearer instrument demand an indorsement from the transferor in order to assure themselves of his identity and to gain the benefit of the indorsement contract").

[***23]

   Given that Glen Burnie is a holder who took the checks for value, the remaining inquiry is whether Glen Burnie took the checks [**460] in good faith and without notice to qualify it as a holder in due course. Section 1-201(19) defines good faith as "honesty in fact in the conduct or transaction concerned." There is no indication in the record in the instant case that Glen Burnie[*346] did not act honestly when it cashed the checks bearing the forged indorsements. Furthermore, there was no indication in the record that anyone employed at Glen Burnie believed they were cashing forged instruments. Thus, because the record provides no indication that Glen Burnie lacked "honesty in fact" when it cashed the checks, Glen Burnie acted in good faith. See, e.g., Aetna, 497 S.W.2d at 87-88 (holding that the bank exercised good faith because the record failed to show a lack of honesty in handling the transaction or a belief that the check was forged). With regard to notice, given that the checks were not overdue, there was no notice of dishonor, and there were no alterations, Glen Burnie was without notice that there was a claim or defense against the checks. See [***24] § 3-302. Because Glen Burnie fulfills the necessary prerequisites to qualify as a holder in due course, it is entitled to invoke the protections of the finality rule of § 3-418 to preclude Loyola from recovering against it.

   III.

   Although the issue may not be presented in the instant case, we should point out that even if the lower courts were correct in assuming that the checks at issue in this case were order paper requiring an effective indorsement to confer holder status, the forged indorsements arguably could be considered "effective" to confer holder status upon Glen Burnie through application of the fictitious payee rule of § 3-405. Section 3-405 provides that "an indorsement by any person in the name of a named payee is effective if ... [a] person signing as or on behalf of a maker or drawer intends the payee to have no interest in the instrument...." This section was based on the assumption that because the forger made the instrument payable to a fictitious payee or a payee not intended to have an interest in the check, the check was in effect made payable to bearer requiring no indorsement for negotiation. See Donald W. Baker, The Perini Case: Double Forgery Revisited [***25]  (Part I), 10 UCC L.J. 309, 327 (1978). Thus, pursuant to the fictitious payee rule, a forged indorsement on an order instrument with a forged drawer's signature[*347] may be considered effective and title to the instrument passes as if no forged indorsement existed. See Brighton, 422 A.2d at 439; Aetna, 497 S.W.2d at 84 (noting that the fictitious payee rule renders the indorsement "effective" for purposes of conferring holder status). Thus, negotiation is achieved such that the collecting bank is a holder because all "necessary" indorsements are present and effective. See § 3-202. n9 

n9 Loyola argues that the fictitious payee rule does not apply to situations where the drawer was not authorized to draw on the account. The express language of § 3-405(1)(b), however, does not seem to limit its applicability to situations where the person was authorized to draw on the account. Several courts have held the fictitious payee rule applicable to double forgery situations where the forger did not have authorization to draw the check and no employer/employee relationship was present. See Aetna Life and Casualty Co. v. Hampton State Bank, 497 S.W.2d 80, 84 (Tex. Civ. App. 1973)(applying the fictitious payee rule in a double forgery case where the person was an unknown wrongdoer because the forger signed "'as or on behalf of' the drawer, within § 3-405" ); see also Perini, 553 F.2d at 409 n.14 (noting that "nothing in § 3-405(1)(b) limits its application" to authorized drawer situations).

[***26]

   Applying the fictitious payee rule of § 3-405(1)(b) to a double forgery of order paper would render the "forged" indorsement effective for purposes of holder in due course status. Holder in due course status will then enable the collecting bank to seek protection under the finality rule of § 3-418 and place liability solely on the drawee bank for improperly paying an instrument bearing a forged drawer's signature. If in the instant case the instruments in question had in fact been order paper, by application of the fictitious payee rule, the forged indorsement of Nancy Tinkler would be considered "effective." Holder status would therefore be conferred upon Glen Burnie to permit it to utilize the finality rule of § 3-418 and Loyola would be unable to recover against Glen Burnie.

   [**461] We also note that by rendering the indorsement "effective" through application of the fictitious payee rule of § 3-405(b)(1), no warranty of title would be breached because the "necessary" indorsement is deemed effective. See § 3-405. As discussed, supra, the warranty of title merely guarantees that an instrument contains all "necessary" indorsements and [*348]that those indorsements are deemed effective. [***27] See Firemen's Fund, 85 Cal. App.3d at 810-11, 149 Cal. Rptr. at 892; Longview Bank & Trust, 750 S.W.2d at 298-99. Thus, the fictitious payee rule could render the indorsements in the instant case "effective" even if the instruments were order paper, and if so, no breach of warranty claim could be maintained by Loyola. See also Donald W. Baker, The Perini Case: Double Forgery Revisited (Part II), 11 UCC L.J. 41, 62 (1978)(noting § 3-405(b)(1) not only serves to remedy the defect for purposes of holder in due course status under the final payment rule, but also renders the indorsement effective for title warranty purposes).

   IV.
 
We should also point out that, although the finality rule establishes Loyola's liability in the instant case, several courts have also utilized a theory known as the "loss-causation" rule to justify placing the loss on the drawee bank in double forgery cases. The "loss-causation" rule confers holder status on collecting banks thereby denying drawee banks the ability to raise any forged-indorsement related claims. See Perini, 553 F.2d at 414;[***28] Aetna , 497 S.W.2d at 84; Nat. Credit Union Admin. v. Mich. Nat. Bank, 771 F.2d 154, 159-60 (6th Cir. 1985); Cumis, 552 F. Supp. at 419; Winkie, 299 N.W.2d at 836; Brighton, 422 A.2d at 440-41. The loss-causation rule is based on the assumption that any loss resulting from improper payment on an instrument bearing a double forgery is the result of the drawee bank's payment on a forged drawer's signature where no payment was intended by the drawer. See Perini, 553 F.2d at 415. Thus, the loss-causation rule prohibits forged indorsement-related claims by the "drawee against collecting banks for breach of warranty." See Baker, The Perini Case: Double Forgery Revisited (Part II), 11 UCC L.J. at 51. Professor Baker explains the loss-causation rule as follows:
 
"The conclusion that in double forgery situations the ... drawer or drawee suffers no loss attributable to the forged indorsement because no payee can appear with a rightful[*349] claim can[***29] be explained as follows: In a single forgery situation in which only the indorsement is forged, the drawer will have validly drawn the check intending the named payee to receive the proceeds in exchange for some consideration given by the payee. When a thief steals the check and forges the payee's indorsement, the payee of course does not receive the proceeds. The thief passes the check to a collecting bank, which forwards it to the drawee, which in turn pays it and debits the drawer's account. At the time the theft is discovered, all parties except the payee are in a neutral position: The collecting bank has paid the forger, but has been paid in turn by the drawee; the drawee has paid the collecting bank, but has in turn debited the drawer's account; and the drawer has lost the amount from his account, but has received the consideration from the payee. Only the payee, who has given consideration but has not received the proceeds, is in a negative position. The payee has the ability to make himself whole either by recovering against the drawer on the underlying transaction or by recovering against the drawee for conversion. Thus, the loss suffered by the drawer or drawee can be attributed[***30] to the forged indorsement, in the sense that the theft and forgery resulted in the appearance of a payee with a rightful claim.

   By contrast, in double forgery situations the drawer's signature, as well as the indorsement, is forged, meaning that the check was never validly drawn to a payee entitled to payment. Hence no true payee can appear with a claim against the drawer or drawee, and neither of the latter parties can be said to suffer a loss attributable to the forged indorsement. Rather, the loss results from the drawee's making payment [**462] over a forged drawer's signature where none was intended by the drawer."
 
Baker, The Perini Case: Double Forgery Revisited (Part II), 11 UCC L.J. at 54-55; see also Winkie, 299 N.W.2d at 837; Perini, 553 F.2d at 415 (stating that the loss resulted from "the drawees' paying checks to which [the drawer's] name was forged."); Nat. Credit Union, 771 F.2d at 159 (noting that[*350] "regardless of whether the indorsement is forged, fails to show representative capacity, or is altogether missing--the defect does not[***31] cause the ... loss")(citations omitted); Brighton, 422 A.2d at 440-41 (noting that in double forgery cases the "loss accrued only when the customer's account was debited by the drawee bank, not when the forger collected on his indorsement"). The court in Brighton, went on to state that:
 
"In the typical double forgery case, neither the ostensible drawer ... nor the collecting bank will be called upon to pay again the payee.... In the double forgery situation, the loss need only be paid once, and it is the drawee bank's loss because payment was made of an item not properly payable...."
 
422 A.2d at 441.

   Loyola contends that the instant case is distinguishable from other cases which utilized the loss-causation rule to place liability on the drawee bank because in the instant case Glen Burnie immediately cashed the checks as opposed to accepting them for deposit and awaiting the drawee's payment before releasing the funds. Loyola concedes that when a collecting bank accepts a check bearing a forged indorsement for deposit and does not release the funds until the drawee bank's final payment[***32] that the drawee's final payment causes the loss because it effectively releases the deposited funds to the forger/depositor. However, Loyola argues that the loss in the instant case was caused by Glen Burnie because Glen Burnie cashed the checks containing the forged indorsements without waiting to see if the Tinklers' account was debited. We disagree. The Tinklers' account was debited only after the checks reached Loyola, not when the checks were cashed by Glen Burnie. See § 4-213(1)(c)(final payment occurs when the drawee bank completes "the process of posting the item to the indicated account of the drawer"); see, e.g., Brighton, 422 A.2d at 441 n.6 (noting that when a bank cashes an instrument bearing a forged indorsement, it pays out of its own funds). Thus, the fact that Glen Burnie cashed the checks, as opposed to accepting them for deposit, does not serve to[*351] distinguish the instant case from other cases holding the drawee bank liable under the loss-causation rule because in both situations, the drawer's account was not debited until the drawee bank paid on the forged drawer's signature.

   V.

   In conclusion, because[***33] Glen Burnie has met all the prerequisites necessary to invoke the protections of the finality rule of § 3-418, Loyola must suffer the loss. See Perini, 553 F.2d at 414-15. This conclusion is in accord both with this Court's holding in Com. & Farm., that a drawee bank should not be able to pass liability on to another party for its failure to detect a forgery of its own drawer's signature and with the overwhelming weight of authority from other jurisdictions holding the drawee bank liable for the loss in double forgery cases. See Barkley Clark, The Law of Bank Deposits, Collections and Credit Cards, P 8.05[2], 8-209 (3d ed. 1992 & Supp. I 1994)(noting that "there are no solid decisions imposing indorsement liability in double forgery situations"); 6 Jeffrey B. Reitman, Harold Weisblatt et al., Banking Law: Checks, Drafts and Notes, § 129.03, at 129-6 (1985)(noting that in the case of a double forgery, "the decisions under the [U.C.C.] have all held the drawee bank ultimately liable").

   We hold that in a case of double forgery, as between the collecting bank that cashed the check and the drawee bank that has honored the check, the drawee [***34]bank is liable for the loss.
 
JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY REVERSED AND CASE REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION, COSTS TO [**463] BE PAID BY RESPONDENT LOYOLA FEDERAL SAVINGS BANK. 

                       
ANNE ARUNDEL COUNTY, MARYLAND v. FIDELITY & DEPOSIT COMPANYOF MARYLAND 
No. 11, September Term, 1994
 
COURT OF APPEALS OF MARYLAND
 
336 Md. 282; 648 A.2d 193; 1994 Md. LEXIS 129
 
   October  6, 1994, Filed

   PRIOR HISTORY: [***1] Appeal from the Circuit Court for  Anne Arundel  County pursuant to certiorari to the Court of Special Appeals. James C. Cawood, Jr., JUDGE

DISPOSITION: JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY REVERSED AND CASE REMANDED FOR FURTHER PROCEEDINGS. COSTS TO BE PAID BY THE APPELLEE, FIDELITY & DEPOSIT COMPANY OF MARYLAND.

CORE TERMS:  contractor, supplier, subtitle, payment bond, performance bond, public body, surety, Heard Act, obligee, construction contract, unpaid, Miller Act, statute of limitations, supplied, promisee, third party, beneficiary, conditioned, right of action, one year, stranger, Little Miller Act, work performed, certification, station, pumping, patterned, combined, privity, construction contracts

COUNSEL: ARGUED BY Stephen M. LeGendre, Deputy County Attorney, and ARGUED BY Judson P. Garrett, Jr., County Attorney, of Annapolis, MD, FOR APPELLANT.
 
ARGUED BY Robert M. Wright (Adam C. Harrison, Whiteford, Taylor, and Preston, all on brief) all of Baltimore, MD, FOR APPELLEE.
 
AMICUS CURIAE: J. Joseph Curran, Jr., Attorney General of Maryland; Julia P. Davis, Assistant Attorney General, on brief, of Baltimore, MD, FOR APPELLEE.

JUDGES: ARGUED BEFORE Murphy, C.J.; Eldridge, Rodowsky, Chasanow, Karwacki, Bell and Raker, JJ.

OPINIONBY: RODOWSKY

OPINION:  
[*284] [**194] Opinion by Rodowsky, J.

   In this appeal we hold that the one year statute of limitations under the Little Miller Act applies only to claims on payment bonds and does not apply to claims on performance bonds.

   The appellant, Anne Arundel County, Maryland (the County), owns and operates the Cattail Creek Sewage Pumping Station. On or about February 26, 1986, [***2] a sixteen inch, cast iron pipe, force main on the discharge side of the pumping station ruptured, causing erosion and other damage. The pumping station and its associated mains had been constructed for the County by Dunton, Inc. under a contract dated August 24, 1976. Also on that date the appellee, Fidelity & Deposit Company of Maryland (F & D), as surety, and Dunton, Inc., as principal, jointly and severally bound themselves to the County, as obligee, under a bond conditioned on the performance of the pumping station construction contract. To recover its costs of clean up and repair, the County filed this action on June 6, 1988 against F & D and others. The claim against F & D alleges breach of the performance bond.

   Approximately four years later F & D moved for summary judgment, contending that the State statute relating to security for construction contracts of state and local subdivisions (the Little Miller Act or LMA) required that the County's performance bond claim have been filed "within 1 year after the [County] finally accepts the work performed under the contract." Maryland Code (1985, 1988 Repl. Vol.), § 17-109(b) of the State Finance and Procurement Article (FP). Work [***3]under the pumping station contract had been conditionally accepted by the County on or about November 16, 1977, subject to a one year maintenance period. The County contended[*285] that the one year period provided by FP § 17-109(b) applied only to payment bonds and that the twelve year period of limitations for suits on certain specialties was applicable. n1 The circuit court agreed with F & D's construction of the LMA and granted summary judgment dismissing F & D from the case. 

n1 Md. Code (1974, 1989 Repl. Vol.), § 5-102(a) of the Courts and Judicial Proceedings Article establishes a twelve year statute of limitations for certain specialties, including a "bond except a public officer's bond." § 5-102(a)(2). The statute of limitations for specialties has been applied to performance bonds. See President & Directors of Georgetown College v. Madden, 505 F. Supp. 557, 564 (D. Md. 1980), aff'd in part, dismissed in part, 660 F.2d 91, 95 (4th Cir. 1981); Board of Educ. for Use of IBM Corp. v. Lange, 182 Md. 132, 137, 32 A.2d 693, 695 (1943). See also R. Wright & P. Grimm, Contract Surety Bonds, in Surety Bonds & Insurance in the Construction Industry § 8, at 27-29 (1992) (MICPEL).

[***4]

   The circuit court also certified the judgment in favor of F & D as final, pursuant to Maryland Rule 2-602. After the County had appealed to the Court of Special Appeals, this Court granted the County's petition for certiorari prior to the consideration of the matter by the intermediate appellate court. We also granted leave to the State of Maryland to file a brief as amicus curiae.

   The ground of decision by the circuit court on summary judgment presents an issue of construction of the Little Miller Act, FP §§ 17-101 through 17-110. Understanding the issue requires us to present a considerable portion of the statute. The LMA "applies only to security for a construction contract," § 17-102(b), that is let by a "public body," meaning, in general, the State or a local government. § 17-101(d). "Before a public body awards a construction contract exceeding $50,000, the contractor shall provide payment security and performance security that meet the requirements of § 17-104 of this subtitle." § 17-103(a)(1). "'Payment security' means security to guarantee payment for labor and materials ... under a contract for construction." § 17-101(b). "'Performance security' means security to guarantee[***5] the performance of a contract for construction." § 17-101(c). The security[*286] may be a bond executed by a surety company, [**195] cash, or other security satisfactory to the public body. § 17-104.

   Under the LMA the term "supplier" is defined to mean "a person who supplies labor or materials." § 17-101(e). Section 17-108, dealing with an action by a supplier, reads:

   "(a) In general. -- Subject to subsection (b) of this section, a supplier may sue on payment security if the supplier:

   (1) supplied labor or materials in the prosecution of work provided for in a contract subject to this subtitle; and
 
(2) has not been paid in full for the labor or materials within 90 days after the day that the person last supplied labor or materials for which the claim is made.

   (b) Payment owed by subcontractor. -- (1) A supplier who has a direct contractual relationship with a subcontractor or sub-subcontractor of a contractor who has provided payment security but no contractual relationship with the contractor may sue on the security if the supplier gives written notice to the contractor within 90 days after the labor or materials for which the claim is made were last supplied in prosecution of work [***6] covered by the security.

   (2) A notice under this subsection:

   (i) shall state with substantial accuracy the amount claimed and the person to whom the labor or material was supplied; and
 
(ii) shall be sent by certified mail to the contractor at the contractor's residence or a place where the contractor has an office or does business.

   (c) Certification of security. -- (1) On request by a person who submits an affidavit verifying that the person has supplied labor or materials but has not been paid or is being sued under this section, the Comptroller or the officer in charge of the office where the payment security or evidence of security is required to be filed shall issue:

   (i) a certified copy of the payment bond; or
 
(ii) for other security, a certified statement of the security.

   [*287] (2) The person requesting certification shall pay a reasonable fee, set by the Comptroller or other officer required to issue the certification, to cover costs of preparation.

    (3) A certification under this section is prima facie evidence of the contents, execution, and delivery of payment security."

   Venue, limitations, and costs are addressed in § 17-109 which reads:

   "(a) Venue. -- An action under[***7] this subtitle shall be filed in the appropriate court of the county where:

   (1) the contract was executed and performed; or
 
(2) the contractor has its principal place of business.

   (b) Limitations period. -- An action under this subtitle shall be filed within 1 year after the public body finally accepts the work performed under the contract.

   (c) Costs. -- An obligee named in a bond or a trustee for any other security is not liable for any costs in connection with an action under this subtitle."

   In the action before us F & D, relying on § 17-109(b), submits that a suit on a performance bond is "an action under this subtitle." F & D points to the requirement in § 17-103(a) that the contractor provide both payment security and performance security on public construction contracts over $50,000, from which F & D concludes that an action is "under this subtitle" if it claims breach of the condition of any bond required by the subtitle. The circuit court considered that construction to be the plain meaning of the statute.

   F & D's reading of the statute finds support in a dicta statement, concerning an earlier codification of the LMA, made by this Court in United States Fidelity & Guar. Co. v. Hamilton & Spiegel, Inc., 241 Md. 133, 215 A.2d 735 (1966). [***8]In presenting the question to be decided, this Court said:

   "Since subsection (d) of § 11 of Art. 90, relating to where and when suits on performance and payment bonds should be brought, provides in pertinent part that 'no such suit shall be commenced after the term of one year after the[*288] date of final acceptance of the work performed under the contract,' the question to be decided is [**196] on what date was the work contracted for finally accepted under the terms and conditions of the construction contract."
 
Id. at 135, 215 A.2d at 736-37. There was, of course, no limitations issue in that case, and this Court was not required to focus on any distinction between payment and performance bonds as is here argued by the County.

   The County points out that there are no provisions of the LMA that deal with actions on performance bonds. Actions on payment bonds, by contrast, are expressly dealt with in § 17-108. Thus, argues the County, an action "under this subtitle" is only an action on a payment bond. When a public body sues on a performance bond, it sues directly on the bond, under the County's theory, and not "under this subtitle." When a [***9] supplier sues on a payment bond, the supplier brings an action that is specifically authorized by the subtitle, and therefore sues "under" it.

   The County finds further support for its reading in § 17-109(c) which exonerates an obligee named in a bond from liability for costs "in connection with an action under this subtitle." It would be an absurd construction of § 17-109(c), argues the County, to absolve the public body obligee from liability for costs in an action on a performance bond that the public body brings and then loses, while it is entirely reasonable to exonerate the public body obligee in an action brought by a supplier on a payment bond.

   The parties also argue from the legislative history of the LMA in support for their respective positions. That history ultimately traces to the Heard Act. Act of August 13, 1894, ch. 280, 28 Stat. 278. The present LMA, FP §§ 17-101 through 17-110, in the particulars relevant to the case before us, is substantially Chapter 10 of the Acts of 1959. n2 The 1959[*289] Maryland statute was "patterned after the Miller Act which has been enacted by the Congress for the Federal Government ...." Report of the Legislative Council of Maryland to the General[***10] Assembly of 1959 - Proposed Bills - Special Committee Reports at 17. The Miller Act, 40 U.S.C. §§ 270a through 270d, is the Act of August 24, 1935, ch. 642, 49 Stat. 793. It superseded the Heard Act. The 1959 Maryland statute also repealed Md. Code (1957), Art. 90, § 11 which had been enacted by Chapter 127 of the Acts of 1918. The 1918 Maryland statute had been "Maryland's version of the federal Heard Act ...." Atlantic Sea-Con, Ltd., 321 Md. at 278 n.2, 582 A.2d at 982 n.2. 

n2 The wanderings through the Code of the Little Miller Act from its initial codification in former Art. 90, § 11 to its present location in the State Finance and Procurement Article is traced in Atlantic Sea-Con, Ltd. v. Robert Dann Co., 321 Md. 275, 278 n.2, 582 A.2d 981, 982 n.2 (1990).

   The LMA of 1959 contains the same problem of statutory construction as does the present LMA. The 1959 enactment consisted of one Code section, former [***11]Art. 90, § 11. Subsection (a) contained the requirement for the contractor to post both types of bonds. Subsection (c) provided for an action on a payment bond by one "who has furnished labor or material in the prosecution of the work provided for in such contract, in respect of which a payment bond is furnished under this section ...." Subsection (d), the precursor of present FP § 17-109, read:

   "(d) Every suit instituted under this section shall be brought ... in the political subdivision in which the contract was to be performed ... but no such suit shall be commenced after the term of one year after the date of final acceptance of the work performed under the contract. The obligee named in the bond shall not be liable for the payment of any cost or expenses of any such suit."

   This above-quoted subsection was patterned on 40 U.S.C. § 270b(b) which, prior to its amendment in August 1959, read:

   "(b) Every suit instituted under this section shall be brought in the name of the United States for the use of the person suing, in ... any district in which the contract was[*290] to be performed and executed ... but no such suit shall be commenced after the[***12] expiration of one year after the date of final settlement of such contract. The United States shall not be liable for the payment of any costs or expenses of any such suit." n3 

n3 This section of the Miller Act was amended by the Act of August 4, 1959, Pub. L. 86-135, § 1, 73 Stat. 279 to utilize the "day on which the last of the labor was performed or material was supplied by him" as the date or event measuring the beginning of the one year period.

 
[**197] 40 U.S.C. § 270b consists only of subsections (a) and (b), and (a) deals exclusively with actions on payment bonds by persons who had "furnished labor or material in the prosecution of the work provided for in such contract ...." Thus, the structure of the Miller Act is such that the reference to a suit "instituted under this section" does not present the problem of construction found in FP § 17-109(b).
 
Here the County submits that, because the LMA is patterned after the Miller Act, the action "under this subtitle" referred to in[***13] FP § 17-109(b) is limited to an action on a payment bond. F & D counters by noting the different structure of the LMA from that of the Miller Act. The General Assembly in the 1959 enactment did not divide the statute into separate sections, but instead placed the requirement for both a performance bond and a payment bond in one and the same Code section with all of the other provisions, and then the General Assembly made the one year limitations provision applicable to "every suit instituted under this subtitle ...." In the instant matter the circuit court considered that difference from the Miller Act to be intentional and further to evidence a legislative intent to establish a one year statute of limitations for actions on both performance and payment bonds.

   The County further submits that a construction that limits suit on a performance bond by a public body to a one year window following final acceptance produces an absurd result in comparison to suits by private owner-obligees. A private owner has twelve years within which to sue on a common law[*291] performance bond and, argues the County, there is no public policy reason for disadvantaging taxpayers in suits on statutorily required, [***14]public works performance bonds. Indeed, argues the County, were such a startling result actually intended, it necessarily would be spelled out much more explicitly than the ambiguous reference to an action "under this subtitle."
 
In opposition to the County's policy argument, F & D submits two points. First, it compares the 1959 LMA with the 1918 Maryland version of the Heard Act. The 1918 Maryland statute read in part that
 
"any bond ... conditioned for the faithful performance of any contract for construction ... shall not be approved ... unless the obligors bind themselves therein to the payment of all just debts for labor and materials incurred, through sub-contract or in any other manner, by ... the person ... to whom such contract has been given ...."
 
The 1918 statute provided that, in the event there was liability to the State, that liability was to be preferred and paid in full before any payment was made for labor or materials. The statute further provided that an action to enforce the payment features of the bond should be brought in the name of the obligee, for the benefit pro rata of all labor or materials creditors, and be instituted within one year from completion[***15] of the whole work. F & D contends that, under this combination bond, the State or its agency necessarily had to assert its claim against the bond within the same one year period applicable to claims of suppliers of materials and of labor. Otherwise, the obligee would risk loss of the penal amount of the bond, and of the State's preference, because the claims of suppliers could exhaust the bond. Thus, argues F & D, as a practical matter, a one year statute operated against the State and its agencies under the 1918 enactment. As F & D sees it, the 1959 Maryland statute simply made into law what the prior practice had been. This argument rests entirely on inferences drawn from the face of the 1918 statute, without citation to any additional legal or historical support.

   [*292] Second, F & D submits that there is a sound policy reason for the General Assembly to have imposed in 1959 a one year statute of limitations on actions by any public body on performance as well as on payment bonds. A one year statute keeps performance bonds available at reasonable costs. Absent the special period of limitations under the LMA that specifically applies to the State, F & D suggests that there would be no [***16] limitations on a performance bond action by [**198] the State. An extended, or open ended, period before limitations would run is said adversely to affect the protection of the public body because it adversely affects the willingness of commercial sureties to undertake the performance bond risk.

   We do not believe that the General Assembly was concerned in 1959 with an extended or open ended period of limitations on performance bonds. The explanation given in the Legislative Council report described above is that "the main purpose of the Bill is to provide greater protection to sub-contractors on contracts awarded by the State or any of its political subdivisions or public agencies." Report to the General Assembly of 1959, supra, at 17. It was not until 1980 when the United States District Court for the District of Maryland decided President & Directors of Georgetown College v. Madden, 505 F. Supp. 557, that any prominence, at least in this State, was given to the possibility that an action might be brought directly on a performance bond after the statute of limitations had barred a remedy against the contractor for breach of the construction contract. Thus, [***17] it is most unlikely that the General Assembly in 1959 was narrowly limiting a public body's right to sue on a performance bond in anticipation of litigation attempting to hold the surety liable to the public body for latent defects in the construction after the contractor could no longer be held liable for breach of the construction contract.

   We conclude that the County has construed the LMA correctly. An action "under" the LMA subtitle is an action authorized by that subtitle; it is not an action on a bond required by that subtitle. The action authorized by that [*293]subtitle is a supplier's action on a payment bond. The distinction between the concepts is reflected in the evolution of contract law relating to third party beneficiaries. A performance bond is a contract in which the promise runs directly from the surety, or directly from the surety and the principal, as obligors, to the owner as obligee. In bonds required by the LMA, that owner-obligee is a public body. There was no need for the predecessor statutes to the LMA to authorize suit by a public body on a performance bond because the breach of the condition of the bond gives rise to an action recognized at common law as one [***18] asserted by a promisee who is in privity with the promisor. A payment bond required by the LMA is also a promise made by the surety, or by the surety and the principal, directly to the owner-obligee. The purpose of the payment bond requirements of statutes such as the LMA is to protect suppliers of labor and materials. Even if a statute requiring a payment bond on public construction contained no express authorization for a supplier to sue on the payment bond, as found in FP § 17-108(a), courts today have no difficulty in recognizing the supplier's right to sue as a third party beneficiary of the payment bond. See American Fidelity Co. of Montpelier, Vt. v. State to Use of Short & Walls Lumber Co., 128 Md. 50, 97 A. 12 (1916) (in supplier's suit on payment bond required for state highway construction by Chapter 218 of the Acts of 1910, omission from statute of express authorization for supplier to sue not fatal to action). Nevertheless, that unpaid suppliers are third party beneficiaries of construction contract payment bonds was not so well established when the Heard Act was enacted in 1894.

   Illustrating one school of legal reasoning[***19] in the pre-Heard era is Union Ry. Storage Co. v. McDermott, 53 Minn. 407, 55 N.W. 606 (1893). The plaintiff had supplied bricks to the prime contractor constructing officers' quarters on the military reservation of Fort Snelling, but had not been paid. The contractor had furnished a bond with individual sureties to the United States, conditioned on the performance of all covenants in the contract, specifically "'including the covenant that the said [contractor] shall be responsible for and pay all liabilities[*294] incurred for labor and material in fulfillment of said contract.'" Id. at 410, 55 N.W. at 607. The Supreme Court of Minnesota, affirming a judgment entered on demurrer in favor of the sureties, said:
 
"The legal question here presented--as to the right of the plaintiff, a stranger to the contract, to sue upon it--has recently been considered in Jefferson v. Asch, post, p. 446, (53 Minn. 446, 55 N.W. Rep. 604,) and [**199] the rule there declared is decisive of this case. The plaintiff has no right of action on the bond. He was a complete stranger[***20] to it. There was no privity between him and the promisee,--the United States. The latter rested under no duty or obligation to him upon which he could assert any legal or equitable right to avail himself of the benefit of, and enforce, the promise made by the defendants to the United States. Nor was the promisee--the United States--interested in having this part of the contract performed. It would be no benefit to the United States if the contractor should pay his own debts for material purchased by him. It would be in no way prejudiced if he should not pay. Its property could not be subjected to a lien therefor. In brief, the right of the plaintiff to sue upon this bond has no other legal foundation than the bare fact that the defendants had by that instrument entered into an obligation towards a mere stranger to the plaintiff that his debt should be paid. In such a case the stranger to the contract cannot sue upon it. Our decision above cited is decisive."
 
Id. at 411, 55 N.W. at 607.
 
   Much the same point is made, but under even more remarkable facts, in Buffalo Cement Co. v. McNaughton, 90 Hun 74, 35 N.Y.S. 453 (1895),[***21] aff'd, 156 N.Y. 702, 51 N.E. 1089 (1898). In conjunction with the execution of an 1892 contract for the construction of a sewer for the City of Buffalo, the contractor furnished a combined payment and performance bond. An ordinance of the city required inclusion of the payment clause in performance bonds, and the ordinance also required "'a further clause authorizing each and every such person to bring an action upon such bond, in the same manner and with the[*295] same effect as if he were specifically named in the bond.'" 35 N.Y.S. at 454. A supplier of cement to the project sued on the bond and lost. The court said that "the plaintiff is obliged to rely upon a simple promise made to the city by the defendants, in an instrument to which the plaintiff was not a party ... there being an absence of anything showing that the city could suffer any damage by the failure of [the contractor] to pay the plaintiff for the cement." Id. at 455.

   In 1928 Professor Corbin, as part of an overview of actions on contractors' common law surety bonds, said:

   "There are numerous cases holding that laborers, materialmen, [***22] and other subcontractors have no enforceable right against the surety, even though the terms of the principal contract make it the duty of the contractor to pay the third parties, and even though the surety bond is expressly conditioned on full performance of all his promises by the contractor. Indeed, in some of the cases the bond is specifically conditioned on payment of the debts for labor and material. These cases at times evince a fondness for the supposed common law rule requiring 'privity;' some cases rest upon the false but still lingering idea that the third party's right depends upon there being some pre-existing duty owed to him by the promisee, thus explaining why the promisee came to make a contract requiring payment to the third party; and in other cases the court interprets the contract as solely for the indemnity of the promisee."
 
A. Corbin, Third Parties as Beneficiaries of Contractors' Surety Bonds, 38 Yale L.J. 1, 12-13 (1928) (footnote omitted). See also Annotation, Right of Person Furnishing Material or Labor to Maintain Action on Contractor's Bond to Owner or Public Body, or on Owner's Bond to Mortgagee, 77 A.L.R. 21, 93-95 (1932). [***23]

   Consequently in 1894, when the Heard Act required payment obligations to be combined in the performance bond on federal construction contracts, the statute further provided that unpaid creditors would be furnished a certified copy of the contract and bond
 
[*296] "upon which said person or persons supplying such labor and materials shall have a right of action, and shall be authorized to bring suit in the name of the United States for his or their use and benefit against said contractor and sureties and to prosecute the same to final judgment and execution: Provided , That such action and its prosecutions shall involve the United States in no expense."

   [**200] An often cited case construing the 1894 Heard Act is United States, to Use of Anniston Pipe & Foundry Co. v. National Sur. Co., 92 F. 549 (8th Cir. 1899). There the court was required to determine whether a substantial alteration of the contractor's undertaking, without notice to the surety, absolved any obligation of the surety to suppliers. In that connection the court analyzed the Heard Act as follows:
 
"There was no occasion for legislation on the subject to which the act relates, except for the [***24] protection of those who might furnish materials or labor to persons having contracts with the government. The bond which is provided for by the act was intended to perform a double function,--in the first place, to secure to the government, as before, the faithful performance of all obligations which a contractor might assume towards it; and, in the second place, to protect third persons from whom the contractor obtained materials or labor. Viewed in its latter aspect, the bond, by virtue of the operation of the statute, contains an agreement between the obligors therein and such third parties that they shall be paid for whatever labor or materials they may supply to enable the principal in the bond to execute his contract with the United States. The two agreements which the bond contains, the one for the benefit of the government, and the one for the benefit of third persons, are as distinct as if they were contained in separate instruments, the government's name being used as obligee in the latter agreement merely as a matter of convenience."
 
Id. at 551 (emphasis added).

   One legal writer of the era, discussing beneficiaries of the[***25] payment obligations under construction contractors' bonds, [*297] explained the federal decisions as "necessarily governed by a special federal statute, giving the right of action on such policies to labor and material men, even when they run in name to the United States alone." T. Frost, A Treatise on Guarantee Insurance § 139, at 333 (1902).

   The Heard Act was amended by the Act of February 24, 1905, ch. 778, 33 Stat. 81. The 1905 amendment, inter alia, gave the United States the exclusive right to sue on the combined payment and performance bond during the first six months following completion and final settlement of the construction contract. If the United States sued, unpaid suppliers could intervene. If the United States did not sue within six months, an unpaid supplier could sue if the action were commenced within one year after the performance and final settlement of the construction contract. Discussing the 1905 amended version of the Heard Act, the United States Supreme Court has said:

   "By this statute a right of action upon the bond is created in favor of certain creditors of the contractor. The cause of action did not exist before, and is the creature of the statute. [***26] The act does not place a limitation upon a cause of action theretofore existing, but creates a new one upon the terms named in the statute."
 
United States ex rel. Texas Portland Cement Co. v. McCord, 233 U.S. 157, 162, 34 S. Ct. 550, 552, 58 L. Ed. 893, 897 (1914).

   This right to sue provision from the Heard Act was continued in the Miller Act, under which every unpaid supplier "shall have the right to sue on such payment bond ...." 40 U.S.C. § 270b(a). The right to sue was picked up in the Maryland Little Miller Act of 1959 where former Art. 90, § 11(c) expressly provided that every unpaid supplier "shall have the right to sue on the payment bond ...." That provision was carried forward through Code revisions to present FP § 17-108(a) which expressly provides that "a supplier may sue on payment security ...." It is a familiar, if perhaps unwritten, rule for drafting statutes that one does not repeal something that may be important, even if the draftsperson[*298] does not know why the provision is in an existing statute. Thus, a century after the Heard Act, the LMA continues to carry a provision[***27] that is duplicative of modern contract law relating to third party beneficiaries.

   For all of the foregoing reasons, we hold that an "action under this subtitle," referred to in FP § 17-109(b), is an action on a payment bond. Consequently, the one year statute of limitations therein provided [**201] does not apply to the subject performance bond claim.

   Our construction of "an action under this subtitle" in FP § 17-109(b) is not inconsistent with the use of the quoted phraseology in the venue provisions of § 17-109(a) or in the costs provisions of § 17-109(c). The latter statute seemingly would bar the assessment of costs against a public body in the event an unpaid supplier captioned a payment bond action in the name of the obligee-public body to the use of the unpaid supplier. But see Maryland Rule 2-201 (real party in interest). n4 

n4 By Chapter 97 of the Acts of 1994, FP § 17-109 was amended to substitute throughout "on a payment bond required by this subtitle" for "under this subtitle." We have given no consideration to the 1994 amendment in the decision of this case.

[***28] 
 
JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY REVERSED AND CASE REMANDED FOR FURTHER PROCEEDINGS. COSTS TO BE PAID BY THE APPELLEE, FIDELITY & DEPOSIT COMPANY OF MARYLAND.

                       
WORKERS' COMPENSATION COMMISSION v. NORMAN DRIVER and JOANN. PARKER MICHAEL ADAMS et al. v. DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONALSERVICES, et al. 
No. 79, September Term, 1992, No. 76, September Term, 1992
 
COURT OF APPEALS OF MARYLAND
 
336 Md. 105; 647 A.2d 96; 1994 Md. LEXIS 118

  
 September  9, 1994, Filed

   SUBSEQUENT HISTORY: As Corrected September 15, 1994.

PRIOR HISTORY: Appeal from the Circuit Court for  Anne Arundel  County pursuant to certiorari to Court of Special Appeals. Raymond G. Thieme, Jr., JUDGE
 
Appeal from the Circuit Court for Baltimore County. J. William Hinkel, JUDGE

DISPOSITION: [***1] IN NO. 79, JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE COUNTY REVERSED, AND CASE REMANDED TO THAT COURT FOR ENTRY OF JUDGMENT AFFIRMING THE DECISIONS OF THE ADMINISTRATIVE LAW JUDGES. APPELLEES TO PAY COSTS. IN NO. 76, JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AFFIRMED. APPELLANTS TO PAY COSTS.

CORE TERMS:  budget, abolished, appropriation, reinstatement, layoff, recommendation, investigator, abolition, Administrative Law, salary, reduction, regulation, departmental, fiscal year, annual, budget process, grievance, deletion, abolish, state departments, delete, operation of law, deleted, staff, unclassified, discontinued, recommended, eliminated, recommend, laid-off

COUNSEL: ARGUED BY J. Edward Davis (Davis & Associates and Charles R. Hennick, all on brief) all of Towson, Maryland, FOR PETITIONER MICHAEL ADAMS et al.
 
ARGUED BY Marlene Trestman, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General and Bruce P. Martin, Assistant Attorney General, David R. Durfee, Jr., Assistant Attorney General, all on brief) all of Baltimore, Maryland, FOR RESPONDENT DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONAL SERVICES et al.
 
ARGUED BY Marlene Trestman, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General, and Bruce P. Martin, Assistant Attorney General, David R. Durfee, Jr., Assistant Attorney General, Julia M. Freit, Assistant Attorney General, all on brief) all of Baltimore, Maryland, FOR PETITIONER WORKERS' COMPENSATION COMMISSION.
 
 ARGUED BY Barry C. Steel of Towson, Maryland, FOR RESPONDENT NORMAN DRIVER and JOAN N. PARKER.

JUDGES: ARGUED BEFORE Murphy, C.J., Eldridge, Rodowsky, McAuliffe, * Chasanow, Karwacki, Bell, JJ. 

* McAuliffe, J., now retired, participated in the hearing and conference of this case while an active member of this Court; after being recalled pursuant to the Constitution, Article IV, Section 3A, he also participated in the decision and adoption of this opinion.

OPINIONBY: ELDRIDGE

OPINION: [*107]
 
[**97] Opinion by Eldridge, J.

   The issues in these two cases concern the applicability of the statutory provisions governing the layoff of state employees and the reinstatement rights of laid-off employees.

   I.

   At the time when the events leading to the present appeals occurred, Maryland Code (1957, 1988 Repl. Vol., 1991 Cum.Supp.), Art. 64A, § 35, provided in subsection (b) as follows:
 
"§ 35. Laying off employees.

    * * *

   "(b) In general. - Employees who are in positions that are to be abolished, discontinued, or vacated, because[***2] of a change in departmental organization or a stoppage or lack of work, shall be laid off."

    * * *
 
Subsection (c) of § 35 required the Secretary of Personnel to promulgate rules and regulations establishing procedures for[*108] the layoff of state employees and the reinstatement of laid-off employees to comparable occupational positions. n1 Subsection (d) specified various [**98] requirements for the Secretary's rules and regulations, including a provision that a laid-off employee may displace another employee with less seniority in the same job classification in the same department. n2 Section 35(e) stated that the Secretary of Personnel "shall adopt rules and regulations for reinstatement of unclassified employees that are similar to the rules and regulations for reinstatement of classified employees." n3 

n1 Subsection (c) provided as follows:
 
   "(c) Secretary to establish procedures. -- Except for faculty and other unclassified employees of the State institutions of higher education and their governing boards, the Secretary of Personnel shall establish uniform procedures among State agencies, by rule and regulation, for:

   (1) The layoff of State employees regardless of employment status; and
 
(2) The reinstatement of laid-off classified and unclassified State employees to comparable occupational positions in State employment."

[***3] 

n2 Subsection (d) provided as follows:

   "(d) Rules and regulations; classified employees. -- The rules and regulations promulgated by the Secretary pursuant to subsection (c) of this section shall include:

   (1) An order of layoff determined by seniority points, including credit for:

   (i) Total State service;

   (ii) Service within the department where the layoff is to occur; and
 
(iii) Service in the job classification and its job series, as defined by the Secretary, where the layoff is to occur."

n3 As a result of recodification by Ch. 10 of the Acts of 1993, the provisions of former Article 64A, § 35, are now found in Code (1993), §§ 9-501 through 9-506 of the State Personnel and Pensions Article. We shall in this opinion, however, refer to Art. 64A, § 35, because § 35 was in effect when the events pertinent to these cases took place.

   The provisions of Art. 64A, § 35, originated with Ch. 41 of the Acts of 1920. Subsection (b) has remained almost unchanged since 1920, and the subsection (c) requirement of administrative rules for reinstatement has similarly been in the statute from the beginning. [***4] Thus, Code (Bagby, 1924), Art. 64A, § 16, provided as follows: [*109]

   "16. An employee in a position that is to be abolished, discontinued, or vacated, because of change in departmental organization, or through stoppage or lack of work, shall be laid off and his name placed, in the order provided in the rules of the [State Employment] Commissioner, on the eligible list for the class of the position from which he was laid off."

   In Hopper v. Jones, 178 Md. 429, 13 A.2d 621 (1940), this Court construed Art. 64A, § 16, holding that the statute does not apply when the enacted budget bill deleted the appropriation for a specific position. The facts of Hopper were as follows. For the fiscal year ending September 30, 1939, the claim staff of the State Accident Fund consisted of five investigators with the following annual salaries: $2,200, $2,200, $2,000, $1,800, and $1,500. The plaintiff Hopper was employed as one of the five investigators, being paid the $1,500 annual salary. The investigator in charge testified that the "'duties that the investigators perform are all different, one from another.'" 178 Md. at 432, 13 A.2d at 622.[***5] The budget bill for the fiscal year 1940, as enacted by the General Assembly in 1939, contained appropriations for only four investigators with annual salaries of $2,200, $2,200, $2,000, $1,800. See Ch. 284 of the Acts of 1939, at 540-541. n4 At the beginning of the new fiscal year, the State Employment Commissioner issued an order "laying off" Hopper because the Legislature made no appropriation for his salary. Hopper then filed in the Baltimore City Court a petition for a writ of mandamus against the Commissioner, seeking rescission of the lay-off order and reinstatement to one of the investigator positions. 

n4 Actually, the General Assembly itself did not delete the $1,500 position. Instead, under Maryland's executive budget system, the position was deleted by the Governor when he submitted the budget bill for fiscal year 1940. See Ch. 284 of the Acts of 1939, at 541, items 10, 13, 14, and 15. Moreover, the $1,500 position was apparently suggested for elimination by the State Accident Fund when it submitted its budget requests to the Governor. See Records And Briefs In The Court of Appeals of Maryland, April Term 1940, No. 39, Brief for the Appellee at 5.

[***6] [*110]

   Hopper contended that the Commissioner's action was inconsistent with Art. 64A, § 16, and with the Commissioner's rules and regulations adopted pursuant to § 16. According to Hopper, his position as an investigator had been "abolished . . . because of [**99] change in departmental organization, or through stoppage or lack of work" within the meaning of Art. 64A, § 16, and therefore he was entitled to the protection of the merit system rules promulgated by the Commissioner. Under those rules, when positions were abolished, the appointing authority was required to lay off those employees having the lowest "service ratings." The investigator among the five who had the lowest service rating was investigator Griebel who occupied the $1,800 per year position. Hopper argued that investigator Griebel should be laid off and that Hopper should be reinstated to the $1,800 position. The trial court dismissed Hopper's mandamus petition, and the Court of Appeals affirmed. This Court indicated that, if the purpose of the enacted budget were simply to abolish any one of the five positions, rather than a specific position, and if the choice of which position to abolish were for the agency, then Art. 64A, [***7] § 16, and the rules pursuant to that section, would have been applicable and Hopper would prevail. 178 Md. at 431, 13 A.2d at 622. In the Court's view, however, the purpose of the enacted budget was to abolish the specific position held by Hopper, because of the different salaries and the designation of the $1,500 position for deletion. 178 Md. at 431-432, 13 A.2d at 622. The Court held that Hopper's position was abolished "by operation of law," and that such action was not within Art. 64A, § 16. The Court stated (178 Md. at 433, 13 A.2d at 623):
  
"Our conclusion is that since the Legislature has discontinued the appropriation for an annual salary of $1500 for an industrial accident investigator, and the appellant was the only investigator receiving that salary, he lost his position by operation of law."

   The administrative rules and regulations adopted pursuant to the statute have changed somewhat since the decision in the Hopper case. Nevertheless, as previously discussed, the statutory[*111] provision construed in Hopper remained virtually unchanged. [***8]

   II.

   As this opinion resolves two separate cases, we shall separately set forth the facts of each case.
 
A. No. 79, Workers' Compensation Commission v. Driver and Parker

   Prior to July 1, 1991, Norman Driver held the position of Chief of the Hearing Division for the Workers' Compensation Commission. Also prior to July 1, 1991, Joan Parker held the position of Administrator III with the Commission, at the annual salary of $44,350. She was the only Administrator III at that salary. The budget bill for fiscal year 1992, beginning July 1, 1991, as submitted by the Governor to the General Assembly, retained the positions of both Mr. Driver and Ms. Parker.

   During the 1991 legislative session, the House Appropriations Committee's staff indicated to the Workers' Compensation Commission that the staff intended to recommend the deletion of five "lower level" positions from the portion of the budget applicable to the Commission. The Chairman of the Commission responded by opposing the deletion of any positions. Alternatively, the Chairman urged that if Commission positions were to be eliminated by the General Assembly, the Commission would recommend the deletion of Mr. Driver's and [***9]Ms. Parker's positions rather than the five lower level positions suggested by the Committee's staff. Subsequently, the House Appropriations Committee and the Senate Budget and Taxation Committee recommended to the entire General Assembly the deletion of Mr. Driver's and Ms. Parker's positions. The General Assembly passed the budget bill for the fiscal year beginning July 1, 1991, with Mr. Driver's and Ms. Parker's positions abolished.

   Both Mr. Driver and Ms. Parker were denied layoff and reinstatement rights pursuant to Art. 64A, § 35, and the[*112] administrative rules promulgated under the statute. The two employees filed grievances and pursued their cases through the State Employees' Grievance Procedure, culminating in hearings before Administrative Law Judges. In both cases, the Administrative Law Judges issued opinions holding that Hopper v. Jones, supra, was dispositive. Because each position was specifically eliminated by the budget [**100] enacted by the General Assembly, the Administrative Law Judges held that Mr. Driver and Ms. Parker had no layoff and reinstatement rights under Article 64A, § 35. Both grievances were "denied and dismissed." [***10]

   The two employees filed in the Circuit Court for Baltimore County an action for judicial review, and the cases were consolidated for purposes of hearing and decision. Thereafter the circuit court rendered an opinion and order which reversed the administrative decisions and remanded the cases for further proceedings. The circuit court found a critical factual distinction between the present cases and Hopper v. Jones, supra, saying:

   "This Court finds an important distinction between the instant case and Hopper. Hopper involves the application of a lay off statute analogous to Article 64, Section 35. The lay off provisions provided for benefits based upon performance evaluation. In Hopper, the legislature was the sole basis for the abolition of the subject employee's position, which was identified by salary, and did not receive appropriation for the budget year. The employee was deemed to be laid off by 'an act of law and denied lay off benefits.' In Hopper, there were no facts indicating that the department had any input into the legislature's act. . . . Under the instant facts, the Workers' Compensation Commission, through[***11] its Chairman, Charles Krysiak, recommended that if positions were to be abolished (which the department opposed in general), that not the legislative selection but the department's choice should be followed. The legislative act was not the sole basis for abolition of positions. Hopper is therefore distinguishable on significant facts." [*113]

   "Our facts involve the implementation by the legislature of the department's choice of which positions to abolish for reasons that Chairman Krysiak explained and are noted several times in the record. The act of the legislature and the department combine to form the basis of the abolition of the loss of the appellants' positions and this is well documented."

    * * *

   "This Court cannot conclude that the legislature acted independently of the agency which, 'in substance,' performed a departmental reorganizing in advance of the Budget Act which 'in form' eliminated the positions. This Court prefers substance over form as this Court is certain the legislature would have intended. The legislature cannot be allowed to perform an 'end run' around the statute which it enacted to confer benefits on senior employees which the legislature has expressed[***12] its intention to support."
 
The circuit court went on to hold that, if Art. 64A, § 35, were interpreted as inapplicable in this situation, such interpretation would result "in denying similarly situated groups of employees the equal protection of the law without a rational basis in contravention of Article 24 of the Maryland [Declaration of Rights] and the 14th Amendment of the United States Constitution . . . ." The circuit court concluded that, because of the Commission's recommendation to the House Appropriations Committee, "the positions of appellants were abolished by department organization, and the appellants are entitled to be laid off under Art. 64A, § 35."

   The Commission took an appeal to the Court of Special Appeals. Prior to any further proceedings in the intermediate appellate court, the parties filed in this Court a joint petition for a writ of certiorari which we granted.

   In this Court, the thrust of the two employees' argument is that Hopper v. Jones, supra, is not controlling because today, under Art. 64A, § 35(d), and the administrative rules and regulations, the layoff and reinstatement rights of employees are different[***13] than they were when Hopper was decided. Mr. [*114]Driver and Ms. Parker also argue that, to deny them layoff and reinstatement rights under Art. 64A, § 35, while granting such rights to employees whose jobs are abolished by departmental reorganizations, would violate constitutional equal protection principles.

   [**101] B. No. 76, Adams et al. v. Department of Public Safety and Correctional Services, et al.

   Code (1985, 1988 Repl. Vol.), § 7-213 of the State Finance and Procurement Article authorizes the Governor, with the approval of the Board of Public Works, to reduce, by not more than 25%, any appropriation that the Governor deems unnecessary. n5 For a discussion of the history and purpose of this statute, see Judy v. Schaefer, 331 Md. 239, 627 A.2d 1039 (1993).

n5 The statute reads as follows:
 
" § 7-213. Reductions.

   (a) Authorized. - Except as provided in subsection (b) of this section, with the approval of the Board of Public Works, the Governor may reduce, by not more that 25%, any appropriation that the Governor considers unnecessary.

   (b) Exclusions. - (1) The Governor may not reduce an appropriation to the Legislative Branch or the Judicial Branch of the State government.

   (2) The Governor may not reduce an appropriation for:

   (i) payment of the principal of or interest on the State debt;

   (ii) public schools; or
 
(iii) the salary of a public officer, during the term of office.

   (3) Except as provided in the Merit System Law, the Governor may not reduce an appropriation for the salary of an employee in the classified or unclassified service."

[***14]

   On October 23, 1991, because of a shortfall in state government revenues and to avoid a deficit, the Governor, with the approval of the Board of Public Works, signed orders pursuant to § 7-213 to reduce appropriations. Included among the reductions was the total abolition of more than 1500 employee positions in several state departments and agencies. Each position abolished was individually identified by PIN number (personal identification number). [*115]

   The selection of the positions to be abolished had been based on the recommendations of the departments and agencies involved. Thus, when the Governor reached the conclusion that the abolition of state employment positions was necessary because of the fiscal emergency, the Secretary of Budget and Fiscal Planning, acting upon the Governor's direction, requested various state departments and agencies to submit recommendations of specific positions to be abolished, listed by PIN number, class code and position title. The Governor's order abolished the positions recommended by the departments and agencies.

   Michael Adams and 32 other persons involved in this case had been employed in various state departments and agencies. Their positions had[***15] been specifically abolished by the Governor's order of October 23, 1991, and they were denied layoff and reinstatement rights pursuant to Art. 64A, § 35. They filed grievances, took the appropriate actions under the State Employees' Grievance Procedures, and finally had a hearing, extending over several days, before an Administrative Law Judge. Before the Administrative Law Judge, the grievants were "basically not contesting the Governor's action or the approval of the Board of Public Works." Their position was essentially that, once the Governor decided upon the abolition of the positions, the provisions of Art. 64A, § 35, and the administrative rules pursuant thereto, should determine which employees actually lost their jobs. The various state departments and agencies, represented by the Attorney General, argued that Hopper v. Jones, supra, was controlling.

   The Administrative Law Judge, in an extensive opinion, decided that the "grievants are entitled to rights afforded under the layoff statute, Md. Ann. Code, Art. 64A, § 35." Like the circuit court in the Driver and Parker cases, the Administrative Law Judge in Adams placed[***16] much weight on the fact that the recommendations of the agencies were accepted, stating:
 
"The State, on the other hand, contends that it was the appropriation reduction pursuant to § 7-213 which mandated the abolition of jobs. The State's position is that Section[*116] 7-213 is not a personnel rule, regulation or policy over which 'management' had control. While it is true that the appropriation reduction was predicated on § 7-213, it is equally apparent that the various agencies, upon request, submitted the information to the Governor identifying which jobs had been selected for abolition. It was this submission of information which dictated which jobs were abolished. [**102] The Governor and the Board of Public Works did not randomly select Position Identification Numbers (PINs) but were supplied that information from the agencies. Since it was that information and that information alone which dictated which positions were abolished, it must be concluded that management exercised control over that decision. Management may not have had control over the fact that such reductions were necessary but they certainly maintained total control over selecting which positions were ultimately abolished. [***17]

   "In light of the above, the response to the question "Who did wrong?" must be "The various appointing authorities." As stated earlier, the Grievants' cause of complaint is aimed directly at the actions of the appointing authorities, not that of the Governor or Board of Public Works."
 
The Administrative Law Judge distinguished Hopper v. Jones, supra, as follows:
 
"Thus, § 7-213, as did its predecessor, authorizes the Governor to reduce appropriations after the enactment of the budget bill. Such action by the Governor with the Board of Public Works' approval is not comparable to what occurred in Hopper. In Hopper, the Governor's action or inaction eventually became law. In the instant grievances, the reduction in appropriation did not create or change any laws. Neither is the action an amendment to the budget as defined in § 7-209. The Governor with the approval of the Board of Public Works administered a law, Section 7-213. The result was a reduction in appropriations which limited the spending of specified agencies. Such action was a ministerial function, not a legislative act. [*117]

   "Thus, by examining the function being performed[***18] by the Governor and Board of Public Works as it relates to § 7-213, it is clear that such action is executive, not legislative. Accordingly, any results from exercising that function, such as job abolishment, are not legislative in nature. If the results are not legislative, then it cannot be concluded that the job abolitions were by operation of law."

   The various state departments and agencies filed an action for judicial review in the Circuit Court for Anne Arundel County. The circuit court reversed, holding that the positions were abolished by operation of law, that Hopper v. Jones was controlling, and that, therefore, the employees were not entitled to layoff and reinstatement rights under Art. 64A, § 35.

   The employees noted an appeal to the Court of Special Appeals. Prior to the filing of briefs and oral argument in the intermediate appellate court, they filed in this Court a petition for a writ of certiorari which we granted. In arguing that they were entitled to layoff and reinstatement rights under Art. 64A, § 35, and that the Administrative Law Judge properly accorded them relief in a grievance proceeding, the employees place much weight upon the fact that the positions[***19] abolished were those recommended for abolition by the heads of various state departments and agencies. They assert that "it was the management of the various agencies who made the decisions as to which positions would be abolished" (appellants' brief at 6) and that the "dispositive choices were made by those at the agency level regarding which employees would be laid off by the [Governor and the] Board on October 23" (appellants' brief at 8). The employees go on to argue that "there is no express or implied exception in § 35 which eliminates its protection when positions are abolished by agencies under the direction of the Governor and the Board of Public Works" (id. at 13). The holding in Hopper v. Jones, according to the employees, is limited to "legislative actions." They state that, although the "Governor's budget formulation prior to the passage of the budget by the General Assembly may be seen as somewhat quasi-legislative," nevertheless the[*118] "Governor's actions pursuant to statute, taken after the passage of the budget, are not" (id . at 19).

   III.

   The circuit court in Driver and Parker, and both the Administrative Law Judge and the employees in Adams, have[***20] viewed the abolition of the various positions involved largely as actions taken by the administrative [**103] departments and agencies rather than actions taken by the General Assembly in Driver and Parker and the Governor in Adams. This is because the departments and agencies made recommendations to the decision makers which the latter decided to follow.

   In our view, however, the decision to delete from the budget bill the appropriations for Mr. Driver's and Ms. Parker's positions must be treated wholly as the decision of the General Assembly. Similarly, the decision to abolish the positions involved in the Adams case was entirely that of the Governor, approved by the Board of Public Works. That the Legislature or the Governor, in performing their official functions under the law, may have been influenced or motivated, in whole or in part, by recommendations of agencies or of other entities or persons, is irrelevant.

   It is well-settled that when the judiciary reviews a statute or other governmental enactment, either for validity or to determine the legal effect of the enactment in a particular situation, the judiciary is ordinarily not concerned with whatever may have motivated[***21] the legislative body or other governmental actor. Long ago, in Mayor &c., of Balto. v. State, 15 Md. 376, 461 (1859), this Court stated:
 
"Hence we see that while the motives of the Legislature can have no effect upon the efficiency of the laws, neither can they be regarded by the judiciary when testing their power to pass them."
 
See also 15 Md. at 482.

   The Supreme Court of the United States in Daniel v. Family Security Life Ins. Co., 336 U.S. 220, 224, 69 S. Ct. 550, 552, [*119] 93 L.Ed. 632, 636 (1949), with respect to the argument that recommendations from the "insurance lobby" influenced the South Carolina legislature to enact the statute there involved, stated:
 
"But a judiciary must judge by results, not by the varied factors which may have determined legislators' votes. We cannot undertake a search for motive . . . ."

   Therefore, except to the extent that a governmental body's motive may cast light upon the meaning of its enactment, its motive is ordinarily not pertinent in applying that enactment. That the General Assembly and the Governor may have been motivated[***22] by recommendations from state agencies can have no relevance in determining the effects of their official actions.

   Under Article III, § 52, of the Maryland Constitution, the General Assembly, and only the General Assembly, can enact the annual budget for the State. Under § 7-213 of the State Finance and Procurement Article, the Governor, and only the Governor, can reduce appropriations in the budget up to 25% after the budget has been enacted. These official actions did not become the actions of state agencies because the General Assembly and the Governor received recommendations from those agencies and decided to follow them. The making of recommendations did not convert the state agencies into decision makers. See, e.g., People of Virgin Islands v. Price, 181 F.2d 394, 396 (3d Cir. 1950) ("To recommend is to present as one's advice . . . . It ordinarily involves the idea that another has the final decision"); Fletcher v. Porter, 203 Cal.App.2d 313, 317, 21 Cal.Rptr. 452, 454 (1962) ("To recommend does not mean to bind"); Mora County Board of Education v. Valdez, 61 N.M. 361, 366, 300 P.2d 943, 946 (1956)[***23] ("A recommendation is not an act of final decisive power -- it merely suggests the desirability of a course of action to be followed by another"). See also Duffy v. Conaway, 295 Md. 242, 259, 261-262, 455 A.2d 955, 963-965 (1983).

   Since Mr. Driver's and Ms. Parker's positions were abolished by the enacted budget bill, and not by the agency for[*120] which they were employed, our decision in Hopper v. Jones is clearly dispositive in their cases. n6 

 n6 It is noteworthy that the agency's recommendation in the Hopper case apparently contributed to the final decision to as great a degree as the agency's recommendation in Driver and Parker. See n. 4, supra.

   Mr. Driver and Ms. Parker suggest that Hopper is distinguishable because, today, employees have somewhat different layoff and reinstatement rights than they did at the time of Hopper. Today layoff and reinstatement [**104] rights largely depend upon seniority, whereas at the time of Hopper they depended upon [***24] "service ratings." Nonetheless, as earlier discussed, the key statutory provision did not change since the Hopper case. Whatever the layoff and reinstatement rights may be under Article 64A, § 35(d), and the administrative rules promulgated thereunder, those rights only come into being when employees "are in positions that are to be abolished, discontinued, or vacated, because of a change in departmental organization" within the meaning of § 35(b). This language in § 35(b) is identical to the language of former Art. 64A, § 16, which was construed in Hopper. The Hopper opinion indicated that the language encompassed the abolition of a position by the agency itself or by the budget process when jobs were reduced without targeting specific positions, but that the language did not cover the total removal of funding for the specific position in the state budget. This interpretation of the language is controlling under the principle of stare decisis.

   Moreover, the Driver and Parker cases present circumstances under which a court should rarely depart from the rule of stare decisis. The provisions of former Article 64A, § 16, and Article 64A, § 35, have been reenacted with [***25]amendments on several occasions since this Court's opinion in Hopper v. Jones. Nevertheless, from the time of Hopper through the period when the present cases arose, the General Assembly did not change the particular language construed in Hopper. In this situation, a court should be most reluctant to overrule its prior interpretation of the statutory language. [*121]
We explained in Williams v. State, 292 Md. 201, 210, 438 A.2d 1301, 1305 (1981): 

   "The General Assembly is presumed to be aware of this Court's interpretation of its enactments and, if such interpretation is not legislatively overturned, to have acquiesced in that interpretation. Harden v. Mass Transit Adm., 277 Md. 399, 406, 354 A.2d 817 (1976). This presumption is particularly strong whenever, after statutory language has been interpreted by this Court, the Legislature re-enacts the statute without changing in substance the language at issue. Harbor Island Marina v. Calvert Co., 286 Md. 303, 322-323, 407 A.2d 738 (1979); Director v. Cash, 269 Md. 331, 345, 305 A.2d 833 (1973)[***26] cert. denied sub nom. Vucci v. Boslow, Institution Director, 414 U.S. 1136, 94 S. Ct. 881, 38 L. Ed. 2d 762 (1974); Macke Co. v. St. Dep't of Assess. & T., 264 Md. 121, 132-133, 285 A.2d 593 (1972); Stack v. Marney, 252 Md. 43, 49, 248 A.2d 880 (1969). Under these circumstances, it is particularly inappropriate to depart from the principle of stare decisis and overrule our prior interpretation of the statute. White v. Prince George's Co., 282 Md. 641, 657-658, 387 A.2d 260 (1978). See also Flood v. Kuhn, 407 U.S. 258, 92 S. Ct. 2099, 32 L. Ed. 2d 728 (1972)."
 
See, e.g., United States v. Streidel, 329 Md. 533, 551 n. 12, 620 A.2d 905, 914 n. 12 (1993); Forbes v. State, 324 Md. 335, 342, 597 A.2d 427, 431 (1991); Nationwide v. USF&G, 314 Md. 131, 143, 550 A.2d 69, 75 (1988); Frank v. Storer, 308 Md. 194, 203, 517 A.2d 1098, 1102-1103 (1986);[***27] Farmers & Merchants Bank v. Schlossberg, 306 Md. 48, 60, 507 A.2d 172, 178 (1986); Foster v. State, 304 Md. 439, 479-480 n. 20, 499 A.2d 1236, 1257 n. 20 (1985), cert. denied, 478 U.S. 1010, 106 S. Ct. 3310, 92 L. Ed. 2d 723 (1986); Calhoun v. State, 299 Md. 1, 11, 472 A.2d 436, 441 (1984).

   The Adams case, of course, is somewhat different from Hopper. Whereas in Hopper the Governor made the decision to delete the annual appropriation for Mr. Hopper's position prior to submitting the budget bill to the General Assembly, and thus under Maryland's executive budget system the appropriation[*122] was deleted by the enacted budget bill, in Adams the Governor made the decisions to delete the annual appropriations for the positions after the budget bill was passed and pursuant to § 7-213 of the State Finance and Procurement Article.

   Nonetheless, as recently discussed in Judy v. Schaefer, supra, 331 Md. at 258-261, 269, 627 A.2d at 1049-1050,[***28] § 7-213 was enacted pursuant to the constitutional budget provisions, Article III, § 52, of the Constitution, and particularly § 52(13). It is a "necessary and proper" statute "for the [budget] process to function." Judy, 331 Md. at 258, 627 A.2d [**105] at 1049. In Judy, this Court specifically analogized the Governor's authority under § 7-213 to his authority under Article III, § 52, to reduce appropriations upon the submission of the budget bill, saying (331 Md. at 259-260, 627 A.2d at 1049-1050):

   "The authority given to the Governor in § 7-213 corresponds to the power vested in the Governor by Art. III, § 52. Section 7-213 merely allows the Governor to accomplish at the end of the budget process what he is required to do when he submits his initial budget. If the revenue estimates for FY 1993 had been accurate at the time the budget bill was being prepared for submission to the General Assembly, the Governor would have been required to impose the reductions at that juncture. The revenue estimates for FY 1993 turned out to be inaccurate after the enactment of the budget bill, just as they turned [***29]out to be inaccurate in the 1930's. The General Assembly, well aware of the problem in the 1930's and the possibility of its recurrence, enacted § 7-213 in 1939 in order to forestall the accumulation of deficits in subsequent fiscal years.

   Section 7-213 comports with Art. III, § 52, because the statute recognizes and perpetuates the preeminent role of the Governor in the budget process . . . . Furthermore, because § 7-213 furthers the requirement of maintaining a balanced budget throughout the fiscal year, it is precisely the type of legislation which the framers of Art. III, § 52, contemplated."
 [*123]
Later we reiterated that "the authority of the Governor in § 7-213 mirrors the authority of the Governor in § 52 of Art. III" (331 Md. at 261, 627 A.2d at 1050) and that (331 Md. at 269, 627 A.2d at 1054-1055)
 
"section 7-213 provides a mechanism by which the Governor can fulfill his constitutional obligation to maintain a balanced budget and to avoid a deficit when the estimated revenues used in the budget bill are too high. The power of the Governor to reduce appropriations under § 7-213 is consistent[***30] with the power of the Governor in the budgetary process, and, as proven in 1933 and 1935 as well as in the 1990's, is "necessary . . . to carry out" the balanced budget requirement of Art. III, sec. 52(5a)."

   In both Adams and Hopper, the appropriations for the positions were abolished by the Governor, acting pursuant to the constitutional budget process. Under Maryland's executive budget system, the Governor's decisions in both cases were legislative-type acts. The positions were not abolished by the agencies themselves, as part of a departmental reorganization by the agencies. Instead, in both cases, the annual budget process, accomplished by the Governor and General Assembly together, operated to delete the funding for specific positions. Consequently, we believe that the Hopper opinion is controlling in the Adams case.

   Finally, we do not believe that there is any merit in the equal protection of the laws argument raised in the Driver and Parker cases. The Legislature may decide to grant layoff and reinstatement rights under certain circumstances without having to grant the same rights under all circumstances. See U.S.R.R. Retirement Bd. v. Fritz, 449 U.S. 166, 177, 101 S. Ct. 453, 460, 66 L. Ed. 2d 368, 377 (1980)[***31] ("Because Congress could have eliminated windfall benefits for all classes of employees, it is not constitutionally impermissible for Congress to have drawn lines between groups of employees for the purpose of phasing out those benefits"). See also Hargrove v. Board of Trustees, 310 Md. 406, 424-425, 529 A.2d 1372, 1381 (1987), cert. denied, 484 U.S. 1027, 108 S. Ct. 753, 98 L. Ed. 2d 766[*124] (1988). It is not irrational to treat differently the situation where the funding for a specific position is abolished by the Governor and General Assembly through the budget process. n7 

n7 Subsequent to the events in these cases, the General Assembly, by Ch. 62 of the Acts of 1992, § 6, at 1150-1151, "to clarify interpretation of existing law," expressly stated that the provisions of Art. 64A, § 35, were inapplicable when positions are deleted by the enacted budget bill or by the Governor's action under § 7-213 of the State Finance and Procurement Article. See also Code (1993), § 9-501(c) of the State Personnel and Pensions Article.

   The parties have in their briefs devoted considerable space to the effect, if any, the new statute may have on the issues here. We need not explore this matter, however, as we have decided the present cases without regard to the new statutory provisions.

[***32] 
 
[**106] IN NO. 79, JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE COUNTY REVERSED, AND CASE REMANDED TO THAT COURT FOR ENTRY OF JUDGMENT AFFIRMING THE DECISIONS OF THE ADMINISTRATIVE LAW JUDGES. APPELLEES TO PAY COSTS.

 IN NO. 76, JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AFFIRMED. APPELLANTS TO PAY COSTS. 

                       
IN RE CRIMINAL INVESTIGATION NO. 1/296X IN THE CIRCUIT COURTFOR ANNE ARUNDEL COUNTY 
No. 130, September Term, 1993
 
COURT OF APPEALS OF MARYLAND
 
336 Md. 1; 646 A.2d 389; 1994 Md. LEXIS 112
 
   August  25, 1994, Filed

   PRIOR HISTORY: [***1] Appeal from the Circuit Court for  Anne Arundel  County pursuant to certiorari to the Court of Special Appeals. Bruce C. Williams, JUDGE

DISPOSITION: JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY REVERSED. CASE REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. COSTS TO BE PAID BY THE APPELLEE. IN THE COURT OF APPEALS OF MARYLAND

CORE TERMS:  attorney-client, grand jury, subpoena, criminal investigation, legal advice, sixth amendment, disqualification, disclosure, tax investigation, chilling effect, implicate, right to counsel, current client, fees paid, pertaining, privileged, target, duty of loyalty, former client, general rule, disclose, subpoena duces tecum, income tax, constitutional right to counsel, confidential communications, criminal activity, actual conflict, incriminating, furnish, issuing

COUNSEL: ARGUED BY Carolyn H. Henneman, Assistant Attorney General, (J. Joseph Curran, Jr., Attorney General, both on brief) both of Baltimore, MD, FOR APPELLANT.
 
ARGUED BY Fred R. Joseph of Greenbelt, MD, FOR APPELLEE.

JUDGES: ARGUED BEFORE Murphy, C.J.; Eldridge, Rodowsky, Chasanow, Karwacki, Bell, and Raker, JJ.

OPINIONBY: CHASANOW

OPINION:  
[*3] [**390] Opinion by Chasanow, J. Bell, J. Dissents
 
This case involves the issue of whether an attorney may refuse to comply with a grand jury subpoena duces tecum which seeks the records of the attorney's fees paid by a named current client.

   [**391] I.

   The Anne Arundel County Grand Jury has been conducting a criminal tax investigation of R.W. n1 since March, 1993. The investigation is part of the Attorney General's "narco-tax" [*4] program that targets known and suspected drug dealers for income tax investigation and, if warranted, prosecution. The [***2]investigation utilizes the "net worth" method of accounting to expose individuals who expend more than the incomes reported on their tax returns. During this inquiry, the grand jury issued a subpoena duces tecum to M. Cristina Gutierrez, a member of the Maryland bar. The subpoena requested records of the attorney's fees that R.W. paid to Gutierrez. Gutierrez initially was retained to represent R.W. in a narcotics case as well as state and federal forfeiture actions, all of which were pending when this investigation commenced. Apparently she also is representing R.W. in the tax investigation for which the subpoena was issued.

n1 The identity of the target of this investigation is withheld pursuant to Maryland Rule 8-123(c).

   Gutierrez filed a motion to quash the subpoena in the Circuit Court for Anne Arundel County on the grounds that compelling an attorney to divulge fee information pertaining to a current client would violate the attorney-client privilege and the Sixth Amendment right to counsel. She also complained [***3]that releasing such information would result in a "chilling effect" on the relationship between counsel and her client. On October 8, 1993, Judge Bruce C. Williams issued a Memorandum Opinion and Order "staying the enforcement of the subpoena until Ms. Gutierrez's representation of her client has terminated." Judge Williams based his decision, in part, on this potential "chilling effect" and its threat to the sanctity of the attorney-client relationship. The State filed a Motion for Reconsideration that was denied by the Circuit Court. Thereafter, the State filed a Notice of Appeal to the Court of Special Appeals. Prior to the intermediate appellate court's consideration of the case, we issued a writ of certiorari.

   When the circuit court delayed the enforcement of the subpoena until the termination of Ms. Gutierrez's "representation of her client," the court in effect permanently denied enforcement of the subpoena because as long as the tax investigation continues it is reasonable to assume that Ms. Gutierrez's representation of R.W. also will continue. Therefore, [*5] the order denying enforcement of the subpoena was an appealable final order.

   Although this is a case of first impression[***4] in Maryland, it is fundamentally an extension of our holding in In re Criminal Investigation No. 1/242Q, 326 Md. 1, 602 A.2d 1220 (1992). In that case, we held that information pertaining to fees paid by a former client who was the subject of a tax investigation was not protected. Gutierrez attempts to distinguish the instant case from In re Criminal Investigation No. 1/242Q on the grounds that R.W. is a current client rather than a former client.

   II.

    Attorney-Client Privilege
 
We fully recognize the importance of the attorney-client privilege and its close relationship with the constitutional rights pertaining to the effective assistance of counsel. As we said in State v. Pratt, 284 Md. 516, 398 A.2d 421 (1979),
 
"while never given an explicit constitutional underpinning, the privilege is, nevertheless, closely tied to the federal, as well as this State's, constitutional guarantees of effective assistance of counsel and could, if limited too severely, make these basic guarantees virtually meaningless." (Emphasis added).
 
284 Md. at 520, 398 A.2d at 423.[***5]

   Initially, it has been suggested that, prior to issuing a subpoena for an attorney's fee records, we should require the State to make a preliminary showing of necessity. No similar requirement exists for other grand jury subpoenas, and there is no reason why courts should create a pre-subpoena disclosure requirement for these records. In In re Grand Jury Subpoena Served Upon Doe, 781 F.2d 238 (2d Cir. 1985), cert. denied, 475 U.S. 1108, 106 S.Ct. 1515, 89 L.Ed.2d 914 (1986), the court stated the following:
 
[**392] "To create new standards for obtaining fee information at the grand jury stage risks unacceptable interruption of the[*6] grand jury process and inevitable probing into what information the grand jury already has in order to determine whether a heightened 'need' standard has been met. To allow a grand jury target to challenge the subpoena on the basis of a 'need' requirement would seriously jeopardize the secrecy of the proceeding and the grand jury's investigative functions."
 
781 F.2d at 248. We reject the suggestion that, prior to issuing a subpoena for attorney[***6] fee records, the State should make a preliminary showing of necessity.

   In determining whether the fee information pertaining to a current client is protected by the attorney-client privilege, we should begin with our recent holding in In re Criminal Investigation No. 1/242Q, supra. In that case, the Anne Arundel County Grand Jury issued a subpoena duces tecum to William H. Murphy, Jr., Esquire, commanding him to reveal fee information regarding two former clients whom the grand jury was investigating for possible violations of Maryland tax law. Mr. Murphy moved to quash the subpoena on the basis that the information was privileged and confidential. The Circuit Court for Anne Arundel County granted Mr. Murphy's motion and the State appealed. This Court granted certiorari before the Court of Special Appeals addressed the question.

   After explaining that the attorney-client privilege, and not the Rules of Professional Conduct, governs the disclosure of an attorney's fees, we proceeded to discuss whether the attorney-client privilege would shield Mr. Murphy from disclosing such information. We first recognized that "the overwhelming weight of authority holds that the attorney-client[***7] privilege is generally not violated by requiring disclosure of the payment of attorney's fees and expenses." In re Criminal Investigation No. 1/242Q, 326 Md. at 7, 602 A.2d at 1222. See, e.g., In re Osterhoudt, 722 F.2d 591, 593 (9th Cir. 1983); In re Grand Jury Matter, 926 F.2d 348, 351 (4th Cir. 1991). We then discussed, without adopting, three exceptions to this general rule which have received varying degrees of support in the federal court system. See In re Criminal Investigation No. 1/242Q, 326 Md. at 7-10, 602 A.2d at 1223-24.[*7] We concluded that none of these exceptions was applicable to the facts of that case and therefore, even if we had adopted one or more of the exceptions, the grand jury could still compel disclosure of fees paid by a former client.

   The "last link" exception, primarily used in situations where the information sought is the client's identity, was obviously inapplicable because Mr. Murphy's clients were known to the state. See In re Criminal Investigation No. 1/242Q, 326 Md. at 8-9, 602 A.2d at 1223.[***8] Another exception, the "communication" exception, protects information that is considered "'tantamount to a confidential professional communication.'" In re Criminal Investigation No. 1/242Q, 326 Md. at 9, 602 A.2d at 1224 (quoting Tornay v. United States, 840 F.2d 1424, 1428 (9th Cir. 1988)). In In re Criminal Investigation No. 1/242Q, we offered two reasons why this exception would not apply. First, payment of a fee is a nonassertive act that is not intended to communicate information. Second, disclosure of the amount and method of the payment of a fee revealed nothing about the advice sought by the clients or given by the lawyer in that case. 326 Md. at 10, 602 A.2d at 1224. See also United States v. Grand Jury Matter, 789 F. Supp. 693, 696 (D. Md. 1992)(Hargrove, J.)(applying similar reasoning).

   The final exception that we considered was the "legal advice" exception. According to the Ninth Circuit, this exception applies where "disclosure of the information would implicate the client in the very matter for which legal advice [***9] was sought in the first case." In re Grand Jury Subpoenas Duces Tecum (Marger/Merenbach), 695 F.2d 363, 365 (9th Cir. 1982). We determined that the exception did not apply in In re Criminal Investigation No. 1/242Q because the clients did not retain Mr. Murphy for the tax investigation, and therefore the advice sought had nothing to do with the tax investigation.

   In the instant case, Ms. Gutierrez does not claim privilege based on the "last link" or the "communication" exception. She does argue, [**393] however, that the "legal advice" exception should be adopted in the case at bar, and that this exception[*8] would protect the fee information which the State sought by subpoena.

   The facts in In re Criminal Investigation No. 1/242Q were quite similar to the facts in the instant case, and this Court held the attorney fee information was not privileged. The trial judge in the instant case sought to distinguish our prior holding on the basis that the attorney in our prior case no longer represented the target of the investigation, whereas in the instant case, she still does. The decision in In re Criminal Investigation No. 1/242Q did involve a former client, [***10] but our holding was not based on that fact. The principle behind the attorney-client privilege -- protecting confidential communications -- applies to former and current clients. The attorney-client privilege does not cease with the termination of the relationship. In fact, the privilege is theoretically perpetual. See 1 McCormick on Evidence § 94, at 348 (John W. Strong ed., 4th ed. 1992)("The accepted theory is that the protection afforded by the privilege will in general survive the death of the client."); 5 Lynn McLain, Maryland Evidence § 503.14, at 495 (1987) (stating that the privilege applies even after the attorney-client relationship has ended, "indeed, even after the client's death"). In Harrison v. State, 276 Md. 122, 345 A.2d 830 (1975), this Court reiterated that "confidential communications are not to be revealed at any period of time, either before or after the suit has been brought to an end, or in any other case; for, as to all such matters, his mouth is shut forever." 276 Md. at 132, 345 A.2d at 836 (internal quotation marks and attributions omitted)(emphasis omitted). [***11] Therefore, the attorney-client privilege extends beyond the duration of the relationship, rendering the distinction between former and current clients insignificant with respect to the privilege.

   Gutierrez suggests that if the general rule is that the attorney-client privilege does not prevent disclosure of a present client's fee information, then "the Court of Appeals should adopt the 'legal advice' exception and hold that it is applicable to the instant case." The legal advice exception would protect [*9] fee information under the attorney-client privilege where "'disclosure of the information would implicate the client in the very matter for which legal advice was sought in the first case.'" In re Criminal Investigation No. 1/242Q, 326 Md. at 7, 602 A.2d at 1223 (quoting In re Grand Jury Subpoenas Duces Tecum (Marger/Merenbach), 695 F.2d at 365). A similar issue was decided by the Fourth Circuit in In re Grand Jury Matter, supra, where a grand jury requested fee records from attorneys whose client was under investigation for possible income tax violations. The attorneys were representing the client [***12] in connection with the income tax violations being investigated, and they claimed that they were excused from producing the documents because the fee information would implicate the client in the same criminal activity for which he sought legal advice. The Fourth Circuit, however, held that the attorney-client privilege did not preclude the attorneys from producing the fee documents. Judge Murnaghan, writing for the three judge panel, discussed and then rejected the legal advice exception. He explained as follows: 
 
"[The attorneys] argue for the application of an exception that recognizes a privilege '"where the person invoking the privilege can show that a strong probability exists that disclosure of such information would implicate that client in the very criminal activity for which legal advice was sought."' [United States v.] (Under Seal), 774 F.2d [624,] 628 [(4th Cir.1985), cert. denied, 475 U.S. 1108, 106 S.Ct. 1514, 89 L.Ed.2d 913 (1986)] (quoting United States v. Hodge and Zweig, 548 F.2d 1347, 1353 (9th Cir.1977)). Whatever label the attorneys [***13] give to their supposed exception, it involves recognizing a privilege for information implicating the client, regardless of whether it is a confidential communication. Such a privilege receives little support from current case law.

   The attorneys have suggested that although United States v. Ricks, 776 F.2d 455 (4th Cir.1985), questioned the validity of the exception, nonetheless, the Fourth [**394] Circuit intends to apply it. We disagree. In Ricks, Chief Judge Harrison L. Winter recognized that Hodge & Zweig, the[*10] case giving rise to the 'exception,' 'may no longer be good law in the Ninth Circuit. See In re Osterhoudt, 722 F.2d 591, 593 (9th Cir.1983). Certainly its purported teaching has been rejected by other circuits.' 776 F.2d at 465 (citing decisions by the Second, Sixth, Seventh, and Eleventh Circuits).

   The attorney-client privilege protects only confidential communications. 'Fee arrangements usually fall outside the scope of the privilege because such information ordinarily reveals no confidential professional communication between attorney and client, and not because such information[***14] may not be incriminating.' In re Osterhoudt, 722 F.2d at 593; see Ricks, 776 F.2d at 465. An exception such as the one suggested by the attorneys rests on an unconvincing rationale." (Footnote omitted).
 
In re Grand Jury Matter, 926 F.2d at 352. The legal advice exception has been expressly rejected by many courts. See, e.g., In re Grand Jury Subpoenas, 803 F.2d 493, 497 (9th Cir. 1986)("It is not the law that the requisites of the attorney-client privilege are met whenever evidence regarding the fees paid the attorney would implicate the client in a criminal offense regarding which the client sought the attorney's legal advice."), corrected, 817 F.2d 64 (9th Cir. 1987); United States v. Ricks, 776 F.2d 455, 465 (4th Cir. 1985)(discussing the legal advice exception and noting that "its purported teaching has been rejected by other circuits"); In re Osterhoudt, 722 F.2d at 592-93. We decline to adopt it as an exception to the general rule that attorney fee information[***15] is not privileged -- especially under the circumstances of the instant case.

   Gutierrez was retained to represent R.W. in drug and forfeiture cases. The fees in these cases are relevant only to the separate and distinct tax investigation, and their records would not fall within the legal advice exception. By retaining Gutierrez in the tax investigation, R.W. should not thereby be able to preclude her from furnishing relevant and probative information to the grand jury about fees in other unrelated cases. As to any fee R.W. may have paid to Gutierrez for representing him in the tax investigation, that[*11] information also should not be privileged. n2 R.W. knew that he was the subject of a net worth tax investigation when he paid the fee to Gutierrez. The attorney-client privilege "is not generally viewed as affording the attorney license to withhold evidence from the judicial system." 1 McCormick on Evidence § 89, at 328 n.12. We decline to expand the attorney-client privilege by creating an exception which would allow concealment of attorney fee records which are relevant to a net worth investigation. Since we decline to apply the legal advice exception in the instant case, we are [***16] left with the general rule adopted in In re Criminal Investigation No. 1/242Q that the attorney-client privilege does not preclude an attorney from furnishing fee records to a grand jury conducting an income tax investigation.

n2 It is questionable whether the State is seeking records of fees paid to Gutierrez for her representation of R.W. in connection with the grand jury investigation. In its response in opposition to the motion to quash the subpoena duces tecum, the State indicated that "in this case, of course, Respondent's representation of R.W. is in connection with a different case than the one under investigation by the Grand Jury issuing the subpoena. As a result, Respondent cannot even claim ... that the information sought would implicate the client in the very criminal activity for which her legal advice was sought." (Emphasis in original).

 
 III.

   Sixth Amendment Right to Counsel
 
Gutierrez next asserts that compelling an attorney to reveal fee information pertaining to a current client will[***17] violate the client's constitutional right to counsel. She claims that, if she is compelled to disclose the fee information, a conflict will result between her and her client. According to Ms. Gutierrez, this conflict might eventually lead to her disqualification as the attorney in the matter, and hence violate the client's Sixth Amendment right to the counsel of his choice. We begin our analysis by noting that there is no Sixth Amendment right to counsel during a criminal investigation, even if the person being [**395] investigated has retained counsel. See Moran v. Burbine, 475 U.S. 412, 430-31, 106 S.Ct. 1135, 1145-46, [*12]89 L.Ed.2d 410, 427 (1986). As the United States Supreme Court observed in Moran v. Burbine,
 
"the Sixth Amendment's intended function is not to wrap a protective cloak around the attorney-client relationship for its own sake. . . . Its purpose, rather, is to assure that in any 'criminal prosecution,' U.S. Const., Amdt. 6, the accused shall not be left to his own devices in facing the '"prosecutorial forces of organized society."' Maine v. Moulton, [474 U.S. 159, 170, 106 S.Ct. 477, 484, 88 L.Ed.2d 481, 492 (1985)][***18] (quoting Kirby v. Illinois, [406 U.S. 682, 689, 92 S.Ct. 1877, 1882, 32 L.Ed.2d 411, 418 (1972)]). By its very terms, it becomes applicable only when the government's role shifts from investigation to accusation."
 
475 U.S. at 430, 106 S.Ct. at 1145-46, 89 L.Ed.2d at 427. See also McNeil v. Wisconsin, 501 U.S. ___, ___, 501 U.S. 171, 111 S.Ct. 2204, 2207, 115 L.Ed.2d 158, 166-67 (1991); In re Criminal Investigation No. 1/242Q, 326 Md. at 12, 602 A.2d at 1225. We are unwilling to find a denial of the right to counsel at the investigative stage when there is no right to counsel at that stage. Therefore, because the grand jury is only investigating R.W., a Sixth Amendment violation should not result from compelling Ms. Gutierrez to disclose fee information to the grand jury.

   Additionally, Gutierrez asserts that providing the grand jury with the fee information would violate her duty of loyalty to her client. Again we turn to In re Criminal Investigation  [***19] No. 1/242Q to resolve this contention. In that case, we determined that disclosure of fee information would violate the Sixth Amendment only if it created an actual conflict between the client and the attorney. 326 Md. at 12-13, [*13] 602 A.2d at 1225-26. See also In re Grand Jury Matter, 926 F.2d at 351; In re Grand Jury Subpoena for Reyes-Requena, 913 F.2d 1118, 1129-30 (5th Cir. 1990), cert. denied, 499 U.S. 959, 111 S.Ct. 1581, 113 L.Ed.2d 646 (1991). The mere possibility, however, that a conflict might arise from compliance with the subpoena is not enough to overcome the "'"obligation of every person to appear and give his evidence before the grand jury."'" In re Criminal Investigation No. 1/242Q, 326 Md. at 12, 602 A.2d at 1225 (quoting In re Grand Jury Subpoena for Reyes-Requena, 913 F.2d at 1130, in turn quoting United States v. Dionisio, 410 U.S. 1, 9-10, 93 S. Ct. 764, 769, 35 L.Ed.2d 67, 77 (1973)).[***20] In the case at bar, Ms. Gutierrez has not been placed in actual conflict with her client.

   Another reason Gutierrez suggests that disclosing attorney fees could lead to a Sixth Amendment violation is that, if she furnishes incriminating information, she could be compelled to testify against her client at trial, and this could result in her disqualification as his attorney. Cf. United States v. (Under Seal), 774 F.2d 624, 627-28 (4th Cir. 1985), cert. denied, 475 U.S. 1108, 106 S.Ct. 1514, 89 L.Ed.2d 913 (1986). The State, however, argues that it is unlikely that Gutierrez will ever have to testify against her client. n3 Even if we assume that the Sixth Amendment would preclude the prosecution from calling Gutierrez as a witness at trial, the prosecutor has offered various alternative methods for providing the fee information such as using stipulations or by having a bookkeeper authenticate the records. By using these methods, the fee information could be reasonably provided at trial without requiring Gutierrez's testimony or disqualification as counsel. These alternatives have been endorsed [***21]by courts. See In re Grand Jury Subpoena Served Upon Doe, 781 F.2d at 245 & n.2; United States v. (Under Seal), 774 F.2d at 628. For instance, in In re Grand [**396] Jury Matter, supra, the court said the following:

n3 The State observes that before Ms. Gutierrez might be required to testify, R.W. would have to be indicted, plead not guilty, proceed to trial, and Ms. Gutierrez would have to be subpoenaed. At least one court has made a similar observation. See In re Grand Jury Subpoena Served Upon Doe, 781 F.2d 238, 245 (2d Cir. 1985) ("Before disqualification can even be contemplated, the attorney's testimony must incriminate his client; the grand jury must indict; the government must go forward with the prosecution of the indictment; and ultimately, the attorney must be advised that he will be called as a trial witness against his client. As a court, we decline to speculate that all those events will occur."), cert. denied, 475 U.S. 1108, 106 S.Ct. 1515, 89 L.Ed.2d 914 (1986).

[***22]

 
"Quashing of a subpoena [to an attorney for a current client's fee information] on sixth amendment grounds requires that the prospective disqualification of the attorneys[*14] not be merely speculative. Merely speculative disqualification is shown when the material can be presented so as to avoid disqualification. In the present case, the government suggested various ways in which the disclosure could be made without requiring disqualification of the attorneys. Those methods appear reasonable and viable. As construed by the district court and the government, the subpoena only requested documents relating to fee arrangements. Compliance would not have required attorney disqualification." (Citation omitted).
 
926 F.2d at 351. See also United States v. Grand Jury Matter, 789 F. Supp. at 695 (Hargrove, J.)("In the case at bar, no actual conflict exists. The attorney can avoid acting as a witness, and thus avoid disqualification in this case, by exercising one of many options available in providing the requested information. [The attorney] could provide the requested information through a records custodian from his law firm, [***23] bookkeeper or any other person capable of admitting the records as a custodian of records, or by stipulation."). It is perhaps noteworthy that Rule 3.7 of the Rules of Professional Conduct permits an attorney to testify and still represent a client at trial in four instances, including when the testimony relates to the nature and value of legal services rendered in the case. See Maryland Rule of Professional Conduct 3.7(a)(2). We find that compelling Gutierrez to furnish the grand jury with records of R.W.'s fee payments would not violate his constitutional right to counsel.

   IV.

   Possible Chilling Effect
 
Without attributing the holding to any particular constitutional protection or privilege, the court below based its stay, in part, on the "possible chilling effect" enforcement of the subpoena "could have" on the attorney-client relationship. In her brief and argument before this Court, Gutierrez expands on the trial court's holding and suggests that, even if the fee information is not privileged and supplying fee records[*15] would not directly violate R.W.'s constitutional right to counsel, we still should not require disclosure. She reasons that because of the chilling effect[***24] on the attorney-client relationship, the client's resultant loss of trust in the attorney, and the attorney's duty of loyalty to a client, an attorney should not be required to furnish potentially damaging fee information about a current client. In a slightly different context, the Supreme Court stated that "counsel's duty of loyalty and his 'overarching duty to advocate the defendant's cause' . . . is limited to legitimate, lawful conduct compatible with the very nature of a trial as a search for truth." Nix v. Whiteside, 475 U.S. 157, 166, 106 S.Ct. 988, 994, 89 L.Ed.2d 123, 134 (1986)(quoting Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674, 694 (1984)). n4 An attorney's disclosure of potentially incriminating fee records may have some chilling effect on the attorney-client relationship, but that potential consequence alone will not justify refusal to comply with a lawful grand jury subpoena for non-privileged information. An attorney's refusal to call, at the request of a client, witnesses who will perjure themselves may also[***25] have a chilling effect on the attorney-client relationship, but an attorney's obligation to obey the law transcends the need to maintain a client's good will. See, e.g., Nix, supra. The grand jury's authority to require production of testimony and documents is limited only by a valid privilege established under the common law, statutes, or the Constitution. See United States v. Calandra, 414 U.S. 338, 346, 94 S.Ct. 613, 619, 38 L.Ed.2d 561, 570 (1974); United States v. Dionisio, 410 U.S. 1, 9-10, 93 S.Ct. 764, 769, 35 L.Ed.2d 67, 76-77 (1973). Since production of the attorney fee information does not violate the attorney-client privilege or the Sixth Amendment right to counsel, we [**397] decline to preclude grand jury access to relevant information based solely on counsel's duty of loyalty or a chilling effect on the attorney-client relationship. 

n4 Nix v. Whiteside, 475 U.S. 157, 106 S.Ct. 988, 89 L.Ed.2d 123 (1986) held that the Sixth Amendment right to assistance of counsel is not violated when an attorney refuses to cooperate with the client in presenting perjured testimony in the client's criminal trial.

[***26]

   [*16] By requiring attorneys to disclose fee information, it is doubtful that we will significantly deter criminal defendants from retaining counsel. As one author noted:
 
"If the individual already is known to the prosecution, the incentives to obtain counsel are going to be extremely strong. Few targets of grand jury investigations are likely to forego counsel simply out of fear that the prosecution will try to ascertain how much they are paying in legal fees. Even those who conclude that such information could be used as evidence of tax evasion or unexplained wealth indicative of other criminality are not likely to renounce legal counsel entirely. They may purchase less expensive legal advice and, in that sense, be deprived of counsel of their choice. But the right to counsel does not include the right to hire any lawyer at any price without any risk. The Supreme Court has upheld against Sixth Amendment attack fee forfeiture provisions that constitute a far more significant intrusion on a defendant's ability to hire counsel of choice.
 
* * * * * 
 
For three reasons, I am not persuaded that this cost is terribly high. First, my guess is that given the option, most people will[***27] seek out the best available counsel and take their chances that fee arrangements will be disclosed. Second, although I place a premium on guaranteeing the right to obtain adequate legal counsel, I do not believe there is a corresponding right to obtain the best counsel money can buy. Finally, even if information concerning fee arrangements is disclosed, it is likely to be but one piece of incriminating evidence. Evidence of the client's overall lifestyle, including the value of his house, car, and personal effects, [is] likely to be more incriminating. In relatively few cases is the client likely to anticipate that the amount of money spent on legal services will prove crucial to the prosecution's case. Therefore, I believe that relatively few potential clients who are already known to the prosecution will be deterred entirely from seeking legal advice and that the cost associated with the decision by some to reduce their[*17] consumption of legal advice is low. With regard to those persons already known to the prosecution, the balance of costs and benefits thus weighs heavily in favor of disclosure of fee arrangement information." (Footnotes omitted)(Emphasis in original).
 
Steven[***28] Goode, Identity, Fees, and the Attorney-Client Privilege, 59 Geo. Wash. L. Rev. 307, 349-50 (1991). Any "chilling effect" from requiring attorneys to disclose fee information would not justify extending the attorney-client privilege to permit the concealment of large expenditures which may be probative evidence of tax evasion by people suspected of being major drug dealers.
 
JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY REVERSED. CASE REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. COSTS TO BE PAID BY THE APPELLEE.IN THE COURT OF APPEALS OF MARYLAND 

DISSENTBY: BELL
 
DISSENT:  
DISSENTING OPINION BY Bell, J.
 
Like the majority opinion, this dissenting opinion is merely an extension of my dissenting opinion in In Re Criminal Investigation No. 1/242Q, 326 Md. 1, 13, 602 A.2d 1220, 1226 (1992), with the exception of the observation that, "I told you so."

   I dissent. 

JOHN B. ROSE v. FOX POOL CORPORATION 
No. 105, September Term, 1993
 
COURT OF APPEALS OF MARYLAND
 
335 Md. 351; 643 A.2d 906; 1994 Md. LEXIS 92; CCH Prod.Liab. Rep. P13,973
 
   July  5, 1994, Filed

   PRIOR HISTORY: [***1] Appeal from the Circuit Court for  Anne Arundel  County pursuant to certiorari to the Court of Special Appeals. H. Chester Goudy, Jr., JUDGE

DISPOSITION: JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY REVERSED AND CASE REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION; COSTS TO ABIDE THE FINAL RESULT.

CORE TERMS:  manufacturer, pool, improvement to real property, asbestos, repose, defective and unsafe condition, architect, cause of action, engineer, supplier, personal injury, card, accrue, swimming pool, warranty, unsafe, substantially completed, real property, legislative history, personal property, wrongful death, supervision, contractor, planning, legislative intent, summary judgment, installation, indemnity, observation of construction, furnishing

COUNSEL: ARGUED BY Charles J. Muskin of Glen Burnie, MD, FOR APPELLANT.
 
ARGUED BY John B. Kaiser (Kevin J. McCarthy, McCarthy, Bacon & Costello, all on brief) all of Lanham, MD, FOR APPELLEE.

JUDGES: ARGUED BEFORE Eldridge, Rodowsky, Chasanow, Karwacki, Bell, Raker, and Orth, * Charles E. Jr., Judge of the Court of Appeals (retired and specially assigned), JJ. 

* Orth, J., participated in the hearing of this case, but died prior to the decision and adoption of this opinion by the Court.

 

OPINIONBY: RAKER

OPINION: [*354] [**907] Opinion by Raker, J.
 
Eldridge and Bell, JJ., concur in result only.
 
Maryland Code (1974, 1989 Repl. Vol. & 1993 Cum. Supp.) § 5-108(a) n1 of the Courts and Judicial Proceedings Article provides that no cause of action for personal injury resulting from the defective and unsafe condition of an improvement to real property accrues if the injury occurs more than 20 years after the date the entire improvement[***2] first became available[*355] for its intended use. The Circuit Court for Anne Arundel County entered summary judgment in favor of the defendant manufacturer on the ground that § 5-108(a) barred the plaintiff's suit. This appeal followed. 

n1 Unless otherwise specified, all statutory references herein are to Maryland Code (1974, 1989 Repl. Vol. & 1993 Cum. Supp.), Courts and Judicial Proceedings Article.

   We issued a writ of certiorari on our own motion prior to consideration of the case by the Court of Special Appeals. The principal issue raised in this appeal is whether § 5-108(a) applies to a cause of action brought against the manufacturer of a residential, in-ground swimming pool for injuries caused by an alleged defect in the pool's design. We answer that question in the affirmative. We hold, however, that summary judgment was improperly granted as there is a genuine issue of material fact as to whether the plaintiff's injury occurred more than 20 years after the date the entire improvement first became available for [***3] its intended use. We therefore reverse the judgment of the trial court.

   I.

   In 1971, Rudi and Hannelore Schanne decided to install an in-ground swimming pool at their home in Glen Burnie, Maryland. The Schannes purchased the pool from Appellee [**908] Fox Pool Corporation [Fox], a designer, manufacturer and supplier of residential swimming pools. The pool consisted of a vinyl liner supported by metal bracing, measured 20 feet in width by 40 feet in length, and was designed such that it had both an area of shallow water for wading and an area of deeper water, ostensibly for diving. In the deeper end, the pool's interior walls sloped at a 45 degree angle towards a small "target area" for diving in the center. Although the depth of the water in the "target area" was 7 feet 6 inches, the water in other areas of the deeper end was as shallow as 3 feet deep because of the pool's sloping walls.

   In early 1971, Fox shipped the unassembled pool to the Schannes, who subsequently hired B & H Construction Company [B & H] to install the pool at their home. In deposition testimony, Mr. Schanne recalled that the pool was installed "early in the spring" of 1971, "somewhere around March." Also in deposition [***4] testimony, Mrs. Schanne recalled that installation of the pool was completed by May 1971 and that she began swimming in the pool by the end of that same month. Mrs. Schanne also testified that B & H gave her a warranty card for the pool on the day that construction was completed. When she was given the card, Mrs. Schanne filled in the necessary information and returned the card to B & H, which in turn sent the card back to Fox. The date on the completed warranty card, obtained from Fox during pre-trial discovery, is July 12, 1971.
 
   On July 4, 1991, Appellant John B. Rose attended a party at the Schannes' home. Rose was a neighbor of the Schannes and had enjoyed the use of their pool numerous times over the years. When Rose dove from the side of the pool on this [*356] occasion, however, he struck his head on either the bottom or the side of the pool and was rendered quadriplegic. He subsequently filed suit against Fox in the Circuit Court for Anne Arundel County, asserting causes of action in negligence, strict liability, and breach of warranty. The gravamen of Rose's complaint against Fox was that the pool was defectively designed and generally unsafe for diving and that Fox had failed to[***5] adequately warn its customers of the pool's dangerous condition.

   On November 16, 1992, Fox filed a motion for summary judgment based upon § 5-108(a) of the Courts and Judicial Proceedings Article. Section 5-108 provides, in full:
 
(a) Injury occurring more than 20 years later.-- Except as provided by this section, no cause of action for damages accrues and a person may not seek contribution or indemnity for damages incurred when wrongful death, personal injury, or injury to real or personal property resulting from the defective and unsafe condition of an improvement to real property occurs more than 20 years after the date the entire improvement first becomes available for its intended use. 

(b) Action against architect, professional engineer, or contractor.-- Except as provided by this section, a cause of action for damages does not accrue and a person may not seek contribution or indemnity from any architect, professional engineer, or contractor for damages incurred when wrongful death, personal injury, or injury to real or personal property, resulting from the defective and unsafe condition of an improvement to real property, occurs more than 10 years after the[***6] date the entire improvement first became available for its intended use. 

(c) Three-year limitation after accrual of cause of action.-- Upon accrual of a cause of action referred to in subsections (a) and (b) of this section, an action shall be filed within 3 years. 

(d) Supplier defined.-- (l) In this subsection, "supplier" means any individual or entity whose principal business is[*357] the supply, distribution, installation, sale, or resale of any product that causes asbestos-related disease. 

(2) This section does not apply if:

   (i) The defendant was in actual possession and control of the property as owner, tenant, or otherwise when the injury occurred;

   (ii) In a cause of action against a manufacturer or supplier for damages for personal injury or death caused by asbestos or a product that contains asbestos, the injury or death results from exposure to asbestos dust or fibers which are shed or emitted [**909] prior to or in the course of the affixation, application, or installation of the asbestos or the product that contains asbestos to an improvement to real property;

   (iii) In other causes of action for damages for personal injury or death caused[***7] by asbestos or a product that contains asbestos, the defendant is a manufacturer of a product that contains asbestos; or

   (iv) In a cause of action for damages for injury to real property that results from a defective and unsafe condition of an improvement to real property:

   1. The defendant is a manufacturer of a product that contains asbestos;

   2. The damages to an improvement to real property are caused by asbestos or a product that contains asbestos;

   3. The improvement first became available for its intended use after July 1, 1953;

   4. The improvement:

   A. Is owned by a governmental entity and used for a public purpose; or

   B. Is a public or private institution of elementary, secondary, or higher education; and 

   5. The complaint is filed by July 1, 1993. 

(e) When action accrues.-- A cause of action for an

   injury described in this section accrues when the injury or damage occurs.
 
[*358] In support of its contention that § 5-108(a) bars Rose's claims, Fox asserted (1) that the Schannes' swimming pool is an "improvement to real property"; (2) that Rose's injuries resulted from the alleged "defective and unsafe condition" of the pool; and[***8] (3) that at the time Rose was injured, more than 20 years had passed since the pool "first became available for its intended use." Following an oral hearing on the motion, Judge H. Chester Goudy granted summary judgment in favor of Fox on the ground that Rose's claims were barred by § 5-108(a). Rose appealed.

    Rose's principal contention before this Court is that § 5-108(a) should not and was never intended to apply to manufacturers of consumer goods. Rose also submits two alternative arguments in support of his assertion that summary judgment was improperly granted. First, Rose asserts that his injuries did not "result from" a defective and unsafe condition of an "improvement to real property" within the meaning of § 5-108(a). Rose contends that an in-ground swimming pool is a consumer good within the meaning of Maryland Code (1975, 1992 Repl. Vol.), § 2-105 and § 9-109(1) of the Commercial Law Article and suggests that the pool should therefore not be considered an "improvement to real property." Second, relying upon Mrs. Schanne's testimony that she was given the pool's warranty card on the day that construction of the pool was completed and the fact that the warranty card was dated[***9] July 12, 1971, Rose asserts that there is a genuine issue of material fact with respect to whether, at the time of his injury on July 4, 1991, the requisite 20 years had passed since the entire improvement first became available for its intended use. We shall address each of Rose's arguments in turn.

   II.

   The issues raised in this appeal require us to discern the meaning of § 5-108(a). The cardinal rule of statutory construction is to effectuate and carry out legislative intent. See, e.g., Comptroller v. Jameson, 332 Md. 723, 732, 633 A.2d 93, 97 (1993); Geico v. Insurance Comm'r, 332 Md. 124, 131, 630 A.2d 713, 717 (1993). Every statute is enacted to further[*359] some underlying goal or purpose--"to advance some interest, to attain some end"--and must be construed in accordance with its general purposes and policies. Kaczorowski v. City of Baltimore, 309 Md. 505, 513, 525 A.2d 628, 632 (1987); see also State v. Fabritz, 276 Md. 416, 421, 348 A.2d 275, 278 (1975), cert. denied, 425 U.S. 942, 48 L. Ed. 2d 185, 96 S. Ct. 1680 (1976).[***10] When called upon to construe a particular statute, we begin our analysis with the statutory language itself since the words of the statute, construed according to their ordinary and natural import, are the primary source and most persuasive evidence of legislative intent. Jameson, 332 Md. at 732, 633 A.2d at 97-98; Comptroller v. Fairchild Industries, 303 Md. 280, 284, 493 A.2d 341, 343 (1985). The statute must be construed as a whole so that no word, clause, sentence or [**910] phrase is rendered surplusage, superfluous, meaningless or nugatory. Condon v. State, 332 Md. 481, 491, 632 A.2d 753, 758 (1993); Md. Port Adm. v. Brawner Contracting Co., 303 Md. 44, 60, 492 A.2d 281, 289 (1985).

   When the language of a statute is plain and clear and expresses a meaning consistent with the statute's apparent purpose, no further analysis of legislative intent is ordinarily required. Kaczorowski, 309 Md. at 515, 525 A.2d at 633. As we explained, however, in Morris v. Prince George's County, 319 Md. 597, 573 A.2d 1346 (1990):[***11] 
 
Our endeavor is always to seek out the legislative purpose, the general aim or policy, the ends to be accomplished, the evils to be redressed by a particular enactment. In the conduct of that enterprise, we are not limited to study of the statutory language. The plain meaning rule "'is not a complete, all-sufficient rule for ascertaining a legislative intention. . . .'" The "meaning of the plainest language" is controlled by the context in which it appears. Thus, we are always free to look at the context within which the statutory language appears. Even when the words of a statute carry a definite meaning, we are not "precluded from consulting legislative history as part of the process of determining the legislative purpose or goal" of the law. 
 
[*360] 319 Md. at 603-04, 573 A.2d at 1349 (citations and footnote omitted); see also Baltimore Cty. C.A.U.T. v. Baltimore Cty., 321 Md. 184, 203-04, 582 A.2d 510, 519-20 (1990); Kaczorowski, 309 Md. at 513, 525 A.2d at 632. The legislative history of a statute, including amendments that were considered and/or[***12] enacted as the statute passed through the Legislature, and the statute's relationship to earlier and subsequent legislation are "external manifestations" or "persuasive evidence" of legislative purpose that may be taken into consideration. Maryland Nat'l Bank v. Pearce, 329 Md. 602, 619, 620 A.2d 941, 949 (1993) (quoting Kaczorowski, 309 Md. at 515, 525 A.2d at 632).

   A.

   The specific statutory language of § 5-108(a) precludes all actions which meet two requirements: (1) the plaintiff's injuries must have resulted from the alleged defective and unsafe condition of "an improvement to real property"; and (2) 20 years must have passed since the "entire improvement first became available for its intended use." The "no cause of action" language of § 5-108(a) is clear: it creates a blanket prohibition against all suits that meet the statutory criteria. Thus, as the statute was drafted, the defendant's identity is irrelevant in determining whether § 5-108(a) bars a particular cause of action.

   Unlike subsection (b), which specifically names architects, professional engineers, and contractors as persons[***13] entitled to greater protection from liability than that afforded by subsection (a), and unlike subsections (d)(2)(i) (defendant in possession and control) and (d)(2)(ii), (iii), and (iv) (all relating to the exclusion of manufacturers and suppliers of asbestos), subsection (a) does not identify the class of persons to which it applies. It is well settled that where a statute specifically lists certain classes of persons as excluded from coverage, the express exclusion of certain persons raises the inference that all other persons not excepted are within the statute's coverage. See Office & Prof. Employees Int'l v. MTA, 295 Md. 88, 96, 453 A.2d 1191, 1195 (1982); Montgomery v. State, 292 Md. 155, 162, 438 A.2d 490, 493 (1981); see also C. Sands, 2A[*361] Sutherland Stat. Const. § 47.23 (5th ed. 1992) ("The enumeration of exclusions from the operation of a statute indicates that the statute should apply to all cases not specifically excluded."). Here, the express exclusion of certain persons in the various provisions of subsection (d), and the singling out of other persons for special protection[***14] in subsection (b), gives rise to the inference that subsection (a) provides immunity from liability to all other persons, including, necessarily, product manufacturers.

   Rose, however, protests the application of § 5-108(a) to suits against product manufacturers. Relying upon select passages from the legislative history of § 5-108 which discuss [**911] the application of the statute to architects, engineers, builders and contractors, Rose contends that the General Assembly never intended that manufacturers fall within the scope of the statute. Although the plain language of § 5-108(a) makes clear that all actions are barred by the statute, we shall review the legislative history of the entire statute to ensure that the "plain meaning" rule does not lead us to a construction at odds with the General Assembly's intent in enacting this statute of repose.
 
   B.

   The earliest version of § 5-108 was enacted by the General Assembly in 1970. 1970 Laws of Maryland, Ch. 666. Codified at Article 57, § 20, the statute provided in full:
 
Actions for damages resulting from defective or unsafe real property improvements.
No action to recover damages for injury to property real or personal, or for bodily [***15]  injury or wrongful death, arising out of the defective and unsafe condition of an improvement to real property, nor any action for contribution or indemnity for damages incurred as a result of said injury or death, shall be brought more than twenty years after the said improvement was substantially completed. This limitation shall not apply to any action brought against the person who, at the time the injury was sustained, was in actual possession and control as owner, tenant, or otherwise of the[*362] said improvement. For purposes of this section, "substantially completed" shall mean when the entire improvement is first available for its intended use.
 
As we discussed in Whiting-Turner Contract. Co. v. Coupard, 304 Md. 340, 499 A.2d 178 (1985), two developments in the law--the elimination of the "privity of contract" doctrine as a defense and the application of the "discovery rule" n2 --provided the impetus behind the enactment of Article 57, § 20 and the enactment of statutes of repose in other states across the nation. 304 Md. at 349, 499 A.2d at 183; see also Hilliard & Bartko v. Fedco Systems, 309 Md. 147, 160, 522 A.2d 961, 968 (1987). [***16]  In the context of actions for injuries arising out of an improvement to real property, those two changes in the law resulted in a dramatic expansion of liability, both with respect to the persons who might be held liable and with respect to the duration of that liability. Whiting-Turner, 304 Md. at 349, 499 A.2d at 183. Architects and engineers, particularly concerned by these developments, turned to state legislatures for protection from this expanded liability. As a consequence, statutes of repose, aimed at addressing the problem of expanded liability resulting from defective and unsafe conditions in improvements to real property, were enacted by some[*363] thirty states between 1964 and 1970. See Comment, Limitation of Action Statutes for Architects and Builders--Blueprints for Non-action, 18 Cath. U. L. Rev. 361, 361 (1969) n3 . Article 57, § 20 was the [**912]Maryland General Assembly's "response to the problems arising from the expansion of liability based on the defective and unsafe condition of an improvement to real property." Whiting-Turner, 304 Md. at 349, 499 A.2d at 183. [***17]  
 
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

   n2 In the context of actions for injuries arising out of an improvement to real property, the effect of the privity of contract doctrine was to deny recovery to any person who did not have a contractual relationship with the party that designed or constructed the improvement. Beginning in the 1950's, courts around the country slowly began to make exceptions to the privity requirement and, in cases specifically dealing with claims against architects, contractors, and others in the construction process, courts rejected the "privity of contract" doctrine as a defense. See generally Krieger v. J.E. Greiner Co., 282 Md. 50, 382 A.2d 1069 (1978). At about the same time, courts began to apply the "discovery rule" in cases involving improvements to real property. See, e.g., Steelworkers Holding v. Menefee, 255 Md. 440, 258 A.2d 177 (1969) (malpractice action against architect); Mattingly v. Hopkins, 254 Md. 88, 253 A.2d 904 (1969) (malpractice action against professional engineer). The discovery rule provides that the action accrues and the statute of limitations begins to run not when the wrong actually occurs but rather when the plaintiff has in fact discovered that an injury has been suffered or by the exercise of reasonable diligence should have discovered the injury. See generally Poffenberger v. Risser, 290 Md. 631, 431 A.2d 677 (1981). [***18] 

   n3 Special limitations statutes dealing with claims arising out of defects in improvements to real property currently exist in 43 other jurisdictions. See Ala. Code. § 6-5-218 (1993); Alaska Stat. § 09.10.055 (1993); Ariz. Rev. Stat. Ann. § 12-552 (Supp. 1993); Ark. Code Ann. § 16-56-112 (Michie 1987); Cal. Civ. Proc. Code §§ 337.1, 337.15 (West 1982); Conn. Gen. Stat.
§ 52-584a (1989); Del. Code Ann. tit. 10, § 8127 (1975); D.C. Code Ann. § 12-310 (1989); Fla. Stat. Ann. § 95.11(3)(c) (West 1982); Ga. Code Ann. §§ 9-3-50 to 9-3-53 (1982); Hawaii Rev. Stat. § 657-8 (1985); Idaho Code § 5-241 (1990); Ind. Code. Ann. §§ 34-4-20-1 to 34-4-20-4 (Burns 1986 & Supp. 1993); Ky. Rev. Stat. Ann. § 413.135 (Michie/Bobbs-Merrill 1992); Me. Rev. Stat. Ann. tit 14, § 752-A (West 1980); Mass. Ann. Laws ch. 260, § 2B (Law. Co-op. 1992); Mich. Comp. Laws § 600.5839 (1987); Minn. Stat. Ann. § 541.051 (West Supp. 1994); Miss. Code. Ann.
§ 15-1-41 (Supp. 1993); Mo. Ann. Stat. § 516.097 (Vernon Supp. 1994); Mont. Code Ann. § 27-2-208 (1993); Neb. Rev. Stat.
§ 25-223 (1989); Nev. Rev. Stat. Ann. §§ 11.202 to 11.206 (Michie 1986); N.H. Rev. Stat. Ann. § 508:4-b (Supp. 1993); N.J. Stat. Ann. § 2A:14-1.1 (West 1987); N.M. Stat. Ann. § 37-1-27 (Michie 1990); N.C. Gen. Stat. § 1-50(5)-(7) (Supp. 1993); N.D. Cent. Code § 28-01-44 (1991); Ohio Rev. Code. Ann. § 2305.131 (Anderson 1991); Okla. Stat. Ann. tit. 12, §§ 109-110 (West 1988); Or. Rev. Stat. § 12.135 (1993); 42 Pa. Cons. Stat. Ann. § 5536 (1981); R.I. Gen. Laws § 9-1-29 (1985); S.C. Code Ann. §§ 15-3-630 to 15-3-670 (Law. Co-op. 1977 & Supp. 1993); S.D. Codified Laws Ann. § 15-2A-1 to 15-2A-10 (Supp. 1994); Tenn. Code Ann. §§ 28-3-201 to 28-3-205 (1980); Tex. Civ. Prac. & Rem. Code Ann. § 16.008 to .009 (West 1986); Utah Code Ann. § 78-12-25.5 (1992); Va. Code Ann. § 8.01-250 (Michie 1992); Wash. Rev. Code Ann. §§ 4.16.300 to 4.16.320 (West 1992); W. Va. Code § 55-2-6a (1994); Wis. Stat. Ann. § 893.89 (West 1983); Wyo. Stat. § 1-3-111 (1993). New York has a statute of limitations for professional liability claims generally. N.Y. Civ. Prac. L. & R. § 214.6 (Consol. Supp. 1993).
 
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***19] 

   Most jurisdictions which enacted statutes of repose adopted some variation of the model statute endorsed by the American Institute of Architects, the National Society of Professional Engineers, and the Associated General Contractors. The model statute provided, in pertinent part: 
 
[*364] No action, whether in contract (oral or written, sealed or unsealed), in tort or otherwise, to recover damages

   (i) for a deficiency in the design, planning, supervision or observation of construction or construction of an improvement to real property,

   (ii) for injury to property, real or personal, arising out of any such deficiency, or

   (iii) for injury to the person or for wrongful death arising out of any such deficiency, shall be brought against any person performing or furnishing the design, planning, supervision or observation of construction, or construction of such an improvement more than four years after substantial completion of such an improvement.
 
Limitation of Action Statutes, supra, at 365 n.31 (emphasis added); J.H. Westerman Co. v. Fireman's Fund Ins. Co., 499 A.2d 116, 121 (D.C. 1985). Those states adopting some version of  [***20] the model statute enacted statutes with language limiting the application of the statute to a specified group of defendants, usually those engaged in the design and construction of improvements. Some states went further than the model statute in identifying the class of persons to be protected by a particular statute of repose and expressly limited the statute of repose to actions against specific, named classes of persons. See, e.g., Conn. Gen. Stat. § 52-584a (1989) (architects and professional engineers); Me. Rev. Stat. Ann. tit. 14, § 752-A (West 1980) (duly licensed or registered architects and engineers); Mich. Comp. Laws § 600.5839 (1987) (state licensed architects and professional engineers); R.I. Gen. Laws § 9-1-29 (1985) (architects, professional engineers, contractors, subcontractors, and materialmen); Tex. Civ. Prac. & Rem. Code Ann. § 16.008 to .009 (West 1986) (licensed or registered architects and engineers).

   [*365] Bills were introduced in the Maryland General Assembly during the 1967, n4 1968 n5 [**913] and 1969 n6 legislative sessions which would have created a statute of repose applicable only to "persons performing or furnishing the design, planning, supervision of construction [***21]  or construction" of an improvement. The General Assembly, however, did not enact a bill with such limiting language. The statute that was finally enacted in 1970 was Article 57, § 20, n7 which simply provided that, under the specified circumstances, no cause of action could be brought.
 
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

   n4 Senate Bill 240, which would have created a 9-year statute of repose for persons "performing or furnishing the design, planning, supervision of construction or construction" of an improvement to real property, passed in the Senate but did not pass the House. 

   n5 Senate Bill 88 and Senate Bill 68, both of which would have created a 9-year statute of repose, contained language identical to that contained in Senate Bill 240, supra note 4. Senate Bill 601 provided that "no action, based upon any deficiency in the design, planning, supervision, construction or observation of construction upon real property or an improvement thereto" could be brought more than 6 years after completion of the project. All three bills were referred to the Senate Committee on Judicial Proceedings, but received no further action. House Bill 858, containing language identical to that of Senate Bill 240, supra note 4, would have created a 6-year statute of repose. House Bill 858 likewise received no further action after being referred to committee. [***22] 

   n6 Senate Bill 162, which would have also created a 9-year statute of repose, likewise contained language identical to that of Senate Bill 240, supra note 4, but received no further action after being referred to committee. 

   n7 Senate Bill 241 of 1970 initially failed in the House, but was revised, amended to change the limit from 9 years to 20 years, and enacted as § 20 of Article 57.
 
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   Article 57, § 20 was modified as part of the code revision project when the Courts and Judicial Proceedings Article was enacted effective January 1, 1974. Codified at § 5-108 of that Article, the statute read as follows:
 
(a) Injury resulting from improvement to realty.-- Except as provided by this section, no cause of action for damages accrues and a person may not seek contribution or indemnity for damages incurred when wrongful death, personal injury, or injury to real or personal property resulting from the defective and unsafe condition of an improvement to real[*366] property occurs more than 20 years after the date the entire improvement first becomes available for its intended use. 

(b) Exception [***23] .-- This section does not apply if the defendant was in actual possession and control of the property as owner, tenant, or otherwise when the injury occurred. 

(c) When action accrues.-- A cause of action for an injury described in this section accrues when the injury or damage occurs. 
 
During the late 1970's, architects and engineers began to complain that the 20-year limitation provided by § 5-108(a) did not afford them sufficient protection from liability. Citing statistics which indicated that most claims brought against architects and engineers are brought within 8 years of the completion of a project and pointing out that other states had enacted much shorter time limits with respect to suits against architects and engineers, the General Assembly was urged to shorten the statutory time period in which suits could be brought. See, e.g., Statement by the Consulting Engineers Council of Maryland, Inc. before the House Judiciary Committee on Senate Bill 18, April 6, 1977 (available at the Department of Legislative Reference, Bill File for Senate Bill 18 (1977)); see also Limitation of Action Statutes, supra, at 365-69 (comparison of statutes of repose).

   In [***24]  apparent response, by Chapter 698 of the Acts of 1979, the Legislature created a new subsection (b) that applied only to claims against architects and professional engineers:
 
(b) Action against architect or professional engineer.-- A cause of action for damages does not accrue and a person may not seek contribution or indemnity from any architect or professional engineer for damages incurred when wrongful death, personal injury, or injury to real or personal property, resulting from the defective and unsafe condition of an improvement to real property, occurs more than 10 years after the date the entire improvement first became available for its intended use. 
 
[*367] 1979 Laws of Maryland, Ch. 698. n8 Significantly, the retention of subsection (a) and the creation of a new subsection applying only to architects and professional engineers made it clear that subsection (a) applied to persons other than architects and professional engineers. In 1980, by Chapter 605, the General Assembly added contractors to the list of persons afforded the special protections of subsection (b).
 
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   n8 The 1979 bill also created a new subsection (c), which provided that "upon accrual of a cause of action referred to in subsections (a) and (b), an action shall be filed within 3 years." With the enactment of new subsections (b) and (c), the former subsections (b) and (c) were redesignated as subsections (d) and (e), respectively.
 
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   [**914] During 1988 and 1989, the question of whether § 5-108(a) applies in actions against product manufacturers became a critical issue in a number of suits seeking damages for personal injury and property damage from manufacturers of construction materials containing asbestos. In every one of those cases, § 5-108(a) was held to bar claims for damages filed against the manufacturers of asbestos whose products had been incorporated into buildings which had been completed over 20 years prior to the discovery of the plaintiffs' injuries. n9 See Department of Legislative Reference Update, Vol. 90-1, Asbestos Liability--The Statute of Repose, January 11, 1990 [Leg. Ref. Update] at 5-7 (discussing applicability of § 5-108(a) in asbestos cases); Bill Analysis--Senate Bill 500, 1990 Senate Judicial Proceedings Committee. Those court decisions prompted calls for immediate legislative action regarding the application of the statute of repose to manufacturers generally and, more specifically, to manufacturers of asbestos. 
 
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   n9 See First United Methodist Church v. U.S. Gypsum Co., 882 F.2d 862 (4th Cir. 1989), cert. denied, 493 U.S. 1070, 107 L. Ed. 2d 1020, 110 S. Ct. 1113 (1990); In re Personal Injury Asbestos Cases, Circuit Court for Baltimore City (Levin, J., November 1, 1989); Baltimore County, Maryland v. Keene Corp. et. al. , Circuit Court for Baltimore County, Case No. 84-CG-1776 (Fader, J., April 12, 1988); State of Maryland v. Keene Corp. et. al., Circuit Court for Anne Arundel County, Civil Action No. 11-8600 (Thieme, J., June 9, 1989); Mayor and City Council of Baltimore v. Keene Corp. et. al., Circuit Court for Baltimore City, Case No. 84268068/CL25639 (Davis, J., June 2, 1989).
 
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   [*368] Those lower court decisions also generated much debate and controversy regarding the original intent of the 1970 General Assembly as to whether manufacturers were ever intended to be protected by § 5-108(a).  See, e.g., Leg. Ref. Update at 8. In 1990, two bills were introduced in the General Assembly--Senate Bill 500 and House Bill 1025--that, as originally drafted, excluded actions against "a manufacturer or supplier of any materials, equipment, machinery, or other articles that are part of an improvement to real property" from the scope of § 5-108(a). During consideration of both bills, proponents of the express exclusion of all manufacturers claimed that the statute of repose was never intended to apply to manufacturers. In response, opponents argued that manufacturers were intended to be included or that, at best, the 1970 Legislature had never considered whether the statute would apply to manufacturers. n10 
 
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   n10 The belief that the 1970 General Assembly never intended to extend the protections of § 5-108(a) to manufacturers was reflected in the original versions of the Preamble of House Bill 1025 and Senate Bill 500, which both read as follows:
 
WHEREAS, It is the intent of the General Assembly to declare the original legislative intent with respect to the persons to which Section 5-108 of the Courts and Judicial Proceedings Article shall apply; and 

WHEREAS, It is the intent of the General Assembly to clarify Section 5-108 of the Courts and Judicial Proceedings Article to state the original legislative intent that Section 5-108 of the Courts and Judicial Proceedings Article has no application to causes of action against manufacturers and suppliers of products which become part of and generate within an improvement to real property a defective and unsafe condition. . ."
 
(emphasis added). The language above was subsequently deleted from both bills and replaced, by amendment, with the following language: "WHEREAS, The General Assembly finds that, notwithstanding any court opinions to the contrary, the legislative intent of the General Assembly in enacting Chapter 666 of the Acts of 1970 is unclear. . . . " (emphasis added).
 
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   After considerable debate within the Legislature, Senate Bill 500 and House Bill 1025 were both amended and the broad language excluding all manufacturers from § 5-108(a) was replaced by language excluding only manufacturers of [*369]asbestos products. n11 Although [**915] the enrolled version of Senate Bill 500 specifically identified only manufacturers and suppliers of asbestos products, many opponents of the bill asserted that the bill was ambiguous and that, as written, Senate Bill 500 could be construed to exclude other manufacturers from § 5-108(a). 
 
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   n11 As amended, subsection (F)(1) of both Senate Bill 500 and House Bill 1025 excluded: "a cause of action against a manufacturer for damages for:
  
(I) Wrongful death or personal injury that results from a latent disease;

(II) Wrongful death or personal injury that results from an occupational disease; or

(III) Injury to real or personal property that results from a defective and unsafe condition of an improvement to real property, if:

   1. The defective and unsafe condition is caused by asbestos or an article that contains asbestos; and

   2. The asbestos, or the article that contains asbestos, is part of an improvement to real property." 
 
Senate Bill 500 and House Bill 1025 differed, however, in their treatment of suppliers. Subsection (F)(2) of Senate Bill 500 excluded "a cause of action against a supplier of material, equipment, machinery, or another article that is part of an improvement to real property if: 
 
(I) The supplier knew or should have known that the article was in a defective condition or was unreasonably dangerous; and

(II) The cause of action against the supplier is for damages for:

   (1) Wrongful death or personal injury that results from a latent disease;

   (2) Wrongful death or personal injury that results from an occupational disease; or

   (3) Injury to real or personal property that results from a defective and unsafe condition of an improvement to real property, provided: 

   A. The defective and unsafe condition is caused by asbestos or an article that contains asbestos; and

   B. The asbestos, or the article that contains asbestos, is part of an improvement to real property."
 
House Bill 1025 excluded any action against a "supplier of material, equipment, machinery, or another article that is part of an improvement to real property, if the supplier knew or should have known that the article was in a defective condition or was unreasonably dangerous."
 
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   Senate Bill 500 passed both Houses but was vetoed by Governor William Donald Schaefer on May 29, 1990. In his letter to the President of the Senate, the Governor wrote: 

   Many of those in favor of this legislation argue that the bill is only a clarification of the original 1970 enactment, [*370] which they further believe has been incorrectly interpreted by many trial courts. To the extent that it is really possible to know what a Legislature "intended" 20 years ago, our own analysis leads to the conclusion that this bill is not a clarification of the law, but is in fact a major, substantive revision of the Statute of Repose. That fact must not be lost. 
 
Id. at 2 (available at the Department of Legislative Reference, Bill File for Senate Bill 500). In concluding his veto letter, the Governor pledged "to work with the sponsors and advocates of this issue next Session on compromise legislation. . . ." Id. at 3.

   In 1991, two administration bills--Senate Bill 335 and House Bill 496--were introduced which expressly excluded only manufacturers of asbestos or products containing asbestos. In testimony before the Senate Judicial Proceedings Committee and the House Judiciary Committee, [***29]  David Iannucci, the Chief Legislative Officer of the Office of the Governor, explained:
 
The legislation [Senate Bill 335 and House Bill 496] would waive the protection of the Statute of Repose only for asbestos. While other materials could later be found to be dangerous, later General Assemblies would be in a position to make the policy determinations relevant to those materials. 
 
Id. at 4 (emphasis added). Senate Bill 335, approved by both Houses, was enacted as Chapter 271, 1991 Laws of Maryland, and the exclusion of asbestos manufacturers and suppliers appeared in
§ 5-108 as subsections (d)(2)(ii), (iii) and (iv).

   As it existed at the time of Rose's suit and as it exists today, § 5-108(a) provides a 20-year limitation for all actions resulting from the defective and unsafe condition of an improvement to real property. Section 5-108(a) thus creates a broad grant of immunity for all persons who might otherwise be held liable[*371] for a defect in an improvement to real property, subject only to the express exclusions of § 5-108(d). While the defendant's identity is crucial in determining the applicability of subsections (b) and (d), it plays no role in determining whether [***30]  subsection (a) applies. Under subsection (a), a defendant's immunity from suit after 20 years have expired does not turn on the defendant's occupation or on the type of service or product the defendant provides. Rather, the defendant's immunity from liability emanates from the fact that the plaintiff's injury "resulted from a defective or unsafe condition of an improvement to real property" that was substantially completed over 20 years prior to the time of the plaintiff's injury. See First United Methodist Church v. [**916] U.S. Gypsum Co., 882 F.2d 862, 865 (4th Cir. 1989), cert. denied, 493 U.S. 1070, 107 L. Ed. 2d 1020, 110 S. Ct. 1113 (1990); J.H. Westerman Co., 499 A.2d at 120.

    C.

   We are aware that some courts in other jurisdictions have excluded product manufacturers and suppliers from the coverage of a particular statute of repose. n12 See, e.g., Luzadder v. Despatch Oven Co., 834 F.2d 355, 359 (3d Cir. 1987) (Pa. law), cert. denied, 485 U.S. 1035, 108 S. Ct. 1595, 99 L.Ed.2d 909 (1988); Baker v. Walker & Walker, Inc., 133 Cal. App. 3d 746, 184 Cal. Rptr. 245, 250-51 (1982); [***31]  Dighton v. Federal Pacific Elec. Co., 399 Mass. 687, 506 N.E.2d 509, 515, cert. denied, 484 U.S. 953, 98 L. Ed. 2d 371, 108 S. Ct. 345 (1987); Condit v. Lewis Refrigeration Co., 101 Wash.2d 106, 676 P.2d 466, 468-69 (1984). We note, however, that in each of those cases the particular statutes of repose at issue were variants of the[*372] model statute which provided that only "persons performing or furnishing the design, planning, supervision or observation of construction, or construction of such an improvement" were protected from liability after the specified period of time. In concluding that manufacturers were not covered by similarly worded statutes of repose, those court decisions rested primarily on the fact that the manufacturer defendants were not performing one of the activities specified in those statutes. 
 
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   n12 Although most states enacted statutes which do not expressly address whether manufacturers are within the class of persons protected, of the few states that do specify whether manufacturers are among the persons protected, the treatment of manufacturers is divided. Compare those including manufacturers, Hawaii Rev. Stat. § 657-8 (1985); Wyo. Stat. § 1-3-111 (1993) with those expressly excluding manufacturers, D.C. Code Ann.
§ 12-310(b)(3) (1989); Minn. Stat. Ann. § 541.051 (West Supp. 1994); Va. Code. Ann. § 8.01-250 (Michie 1992).
 
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   We further note that judicial exclusion of manufacturers from statutes of repose has not been universal and some courts having considered even a variant of the narrower "person performing or furnishing the design, planning, supervision or observation of construction, or construction" language of the model statute have concluded that product manufacturers may indeed fall within the class of persons protected. See, e.g., Adair v. Koppers Co., 741 F.2d 111, 116 (6th Cir. 1984) (Ohio law); In re Beverly Hills Fire Litigation, 695 F.2d 207, 224-25 (6th Cir. 1982) (Ky. law), cert. denied, 461 U.S. 929 (1983); KSLA-TV Inc. v. Radio Corp. of America, 501 F. Supp. 891, 897-98 (W.D. La. 1980), aff'd, 693 F.2d 544 (5th Cir. 1982); Northbrook Excess & Surplus Ins. Co. v. J.G. Wilson Corp., 250 Ga. 691, 300 S.E.2d 507, 508-09 (1983); Howell v. Burk , 90 N.M. 688, 568 P.2d 214, 223 (Ct. App), cert. denied, 91 N.M. 3, 569 P.2d 413 (1977); [***33]  McCormick v. Columbus Conveyer Co., 522 Pa. 520, 564 A.2d 907, 910-11 (1989); Eagles Court Condo. Owners v. Heatilator, 239 Va. 325, 389 S.E.2d 304, 305-06 (1990). n13 
 
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   n13 Some court decisions holding that a statute of repose could apply to a products liability action prompted legislative enactment of amendments expressly excluding such actions from the ambit of the particular statute of repose. See, e.g., Wesley Theological Seminary v. U.S. Gypsum Co., 277 U.S. App. D.C. 360, 876 F.2d 119, 120 (D.C. Cir. 1989) (D.C. law), cert. denied, 494 U.S. 1003, 108 L. Ed. 2d 473, 110 S. Ct. 1296 (1990); Smith v. Allen-Bradley Co., 371 F. Supp. 698, 701 (W.D. Va. 1974) (Va. law).
 
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   It is significant that Maryland did not enact a statute with language similar to that of the model statute adopted by most [***34]  states but instead enacted a statute with language that, on its[*373] face, applies to all suits without regard to the identity of the defendant. In First United Methodist Church v. U.S. Gypsum Co., 882 F.2d 862 (4th Cir. 1989), cert. denied, 493 U.S. 1070, 107 L. Ed. 2d 1020, 110 S. Ct. 1113 (1990), the United States Court of Appeals for the Fourth Circuit, until today the only appellate court addressing the question of whether Maryland's statute of repose applies to claims against product manufacturers, held that § 5-108(a) does apply to such claims. There, a church brought suit in 1988 against the manufacturer of asbestos-containing acoustical plaster which had been applied to the church's ceiling in 1961. Id. at 864. The suit was brought prior to the revision of the statute and, thus, manufacturers of asbestos products were not specifically excluded [**917] from § 5-108(a). Summary judgment was granted in favor of the manufacturer on the ground that the claims were barred by § 5-108(a). On appeal, the church's "primary contention [was] that manufacturers are not in the  [***35] class of persons protected by the statute." Id. The Fourth Circuit soundly rejected that argument: "[Section 5-108] is completely silent as to any limitation on the class of persons it protects. To remove manufacturers from the ambit of § 5-108(a) . . . would be flatly inconsistent with this language's plain mandate." Id. at 865.

   A similar conclusion was reached by the District of Columbia's highest court in construing that jurisdiction's similarly worded statute of repose. In J.H. Westerman Co. v. Fireman's Fund Ins. Co., 499 A.2d 116 (D.C. 1985), the question before the D.C. Court of Appeals was whether a manufacturer of a component of a heating system could claim the protection of D.C.'s statute of repose, D.C. Code Ann. § 12-310. Id. at 117. At that time, the D.C. statute provided that actions "to recover damages . . . resulting from the defective or unsafe condition of an improvement to real property . . . shall be barred" unless the plaintiff's injury occurred within 10 years of the date the improvement was substantially completed. Id. at 118 n.1. n14[*374]  [***36]  The D.C. Court of Appeals held that the statute plainly applied to suits against all persons, other than those expressly excluded, and thereby barred a claim brought against a product manufacturer. Id. at 121. n15 
 
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   n14 At the time J.H. Westerman Co. v. Fireman's Fund Ins. Co., 499 A.2d 116 (D.C. 1985) was decided, D.C. Code Ann. § 12-310 provided, in relevant part:
 
Actions arising out of death or injury caused by defective or unsafe improvements to real property.

(a)(1) Except as provided in subsection (b), any action--

   (A) to recover damages for--

   (i) personal injury,

   (ii) injury to real or personal property, or

   (iii) wrongful death,

resulting from the defective or unsafe condition of an improvement to real property, and

   (B) for contribution or indemnity which is brought as a result of such injury or death,

shall be barred unless in the case where injury is the basis of such action, such injury occurs within the ten-year period beginning on the date the improvement was substantially completed, or in the case where death is the basis of such action, either such death or injury resulting in such death occurs within such ten-year period.
 
In subsection (b) of the statute, owners and those in actual control of the property were excluded from subsection (a). 499 A.2d at 118 n.1. [***37] 

n15 Less than 2 years later, the District of Columbia statute was amended to make "the statute inapplicable to any manufacturer or supplier of any equipment or machinery or other articles installed in the structure upon real property." Wesley Theological Seminary, 876 F.2d at 120.

   We agree with both the reasoning and holdings of First United Methodist Church and J.H. Westerman Co. In our review of the legislative history of § 5-108, we have uncovered nothing which supports Rose's assertion that the General Assembly intended that product manufacturers would not be entitled to the protections of the statute of repose. The General Assembly expressly identified certain defendants to which subsection (a) does not apply. If the Legislature intended to exclude all manufacturers of consumer products, it certainly could have so provided. We therefore conclude that manufacturers of products other than those containing asbestos are among the persons entitled to the protections of
§ 5-108(a).

   [*375] III.

   We must next determine whether Rose's injuries resulted "from[***38] the defective and unsafe condition of an improvement to real property." Although a swimming pool, at the time that it is sold, might fall within the broad definition of "consumer goods" as it appears in Maryland Code (1975, 1992 Repl. Vol.), § 2-105(1) and § 9-109(1) of the Commercial Law Article, n16 see Anthony Pools v. Sheehan, 295 Md. 285, 289-94, 455 A.2d 434, 436-39 (1983) (pool diving board is [**918] consumer good); cf. Chlan v. KDI Sylvan Pools, Inc., 53 Md. App. 236, 240-41, 452 A.2d 1259, 1261-62 (1982), we do not find the classification of a product as a consumer good either helpful or dispositive with respect to the question of whether the product may also be considered an "improvement to real property" within the meaning of § 5-108(a). 

n16 Section 2-105(1) of the Commercial Law Article defines "goods" as "all things (including specially manufactured goods) which are moveable at the time of identification to the contract for sale other than the money in which the price is to be paid, investment securities (Title 8) and things in action." Section 9-109(1) of the same article provides, in pertinent part, that "Goods are (1) "Consumer goods: if they are used or bought for use primarily for personal, family, or household purposes."

[***39]

   Section 5-108 itself does not define "improvement to real property" and there is no clear indication in the legislative history of the statute as to what the term was meant to encompass. In Allentown Plaza v. Suburban Propane, 43 Md. App. 337, 405 A.2d 326 (1979), the Court of Special Appeals noted that two general approaches have been espoused by courts around the country in determining what constitutes an "improvement to real property" for the purposes of statutes of repose. Id. at 344, 405 A.2d at 331. A small minority of courts rely upon common law fixture analysis and the relevant considerations of the degree of annexation and the physical size of the object to determine whether a particular object qualifies as an "improvement to real property. Id. at 345, 405 A.2d at 331. The overwhelming majority of courts, however, have eschewed fixture analysis and avoid its vagaries[*376] by employing a "common sense" or "common usage" test. Id. Under the common sense approach, the relevant inquiry is whether the object is an improvement within the common, [***40] dictionary meaning of that term. Id.

   As a basic tenet of statutory construction, the term "improvement to real property" should be construed according to its common-sense, ordinary meaning in the absence of evidence that the Legislature intended for another meaning to apply. See, e.g., Jameson, 332 Md. at 732-33, 633 A.2d at 97-98. In the legislative history of § 5-108, there is no reference to the term "fixture" nor any indication that the Legislature meant for fixture law to be determinative of what constitutes an "improvement." In Allentown Plaza, the Court of Special Appeals suggested that the term "improvement" may be commonly understood as including "everything that permanently enhances the value of premises for general uses." 43 Md. App. at 345, 405 A.2d at 331 (quoting 41 Am. Jur. 2d Improvements § 1, at 479 (1968)). We find persuasive the narrower definition of "improvement" found in Black's Law Dictionary, which several courts have relied upon in construing the term:
  
[a] valuable addition made to property (usually real estate) or an amelioration in its condition, [***41] amounting to more than mere repairs or replacement, costing labor or capital, and intended to enhance its value, beauty or utility or to adapt it for new or further purposes. Generally has reference to buildings, but may also include any permanent structure or other development, such as a street, sidewalks, sewers, utilities, etc. An expenditure to extend the useful life of an asset or to improve its performance over that of the original asset. Such expenditures are capitalized as part of the asset's cost.
 
Black's Law Dictionary (6th ed. 1990), at 757; see Fleck v. KDI Sylvan Pools, Inc., 981 F.2d 107, 114 (3d Cir. 1992), cert. denied,     U.S.    , 113 S. Ct. 1645, 123 L. Ed. 2d 267 (1993); McCormick v. Columbus Conveyer Co., 564 A.2d at 909.

   We agree, however, with the Allentown Plaza court that the nature of the addition or betterment, its permanence[*377] and relationship to the land and its occupants, and its effect on the value and use of the property are factors which common sense dictates should be considered in making the case by case determination of whether it is an "improvement[***42] to real property" within the meaning of § 5-108. Allentown Plaza, 43 Md. App. at 346, 405 A.2d at 332. The Schannes' pool is a permanent addition, excavated and built into the real property, which enhances the value of the entire premises. Considering those factors, we conclude that the Schannes' swimming pool is an "improvement to real property" within the meaning of § 5-108. See also Fleck v. Sylvan Pools, 981 F.2d at 115; Kline v. Doughboy Rec. Mfg. Co., 495 N.W.2d 435, 438 (Minn. Ct. App. 1993); Nevada Lakeshore Co. v. Diamond Elec., Inc., 89 Nev. 293, 511 P.2d 113 (1973); Morse v. City of Toppenish, 46 Wash. App. 60, 729 P.2d 638, 640 (1986), review denied, 108 Wash. 2d 1007 (1987).

   [**919] IV.

   In his brief, Rose also asserts that his injuries did not result from the defective nature of the pool but rather resulted from Fox's failure to adequately warn its customers of the pool's defective and unsafe design, and that, therefore, § 5-108(a) is not applicable[***43] to his claims. We do not agree.

   Rose's injuries were suffered as a result of a diving accident in the Schannes' pool. In his complaint, the defective nature of the pool is identified as the cause of his injuries. n17 Indeed, as an essential element of each of his causes of action, Rose would have had to prove that his injuries were caused by the defective and unsafe condition of the pool. See, e.g., Eaton[*378]  Corp. v. Wright, 281 Md. 80, 375 A.2d 1122 (1977); Phipps v. General Motors Corp., 278 Md. 337, 363 A.2d 955 (1976); Moran v. Faberge, 273 Md. 538, 332 A.2d 11 (1975); Jensen v. American Motors Corp., 50 Md. App. 226, 437 A.2d 242 (1981). We therefore reject Rose's argument that his injuries did not result from or originate from the defective and unsafe condition of the swimming pool as the direct cause of his injuries was the alleged defective and unsafe condition of the pool. Cf. Cannon v. McKen, 296 Md. 27, 34, 459 A.2d 196, 200 (1983) (all claims[***44] originating from rendering of health care are claims "arising or resulting from" rendering of health care within meaning of Health Care Malpractice Claims Act).

 n17 Rose's complaint specifically alleges that Fox negligently "designed and placed into the stream of commerce an improperly designed swimming pool which was unsafe for diving" and subsequently failed to warn its customers of defects in the pool's design. Rose's strict liability count against Fox likewise is based upon the allegation that Fox sold "a defective pool which was unreasonably dangerous." Finally, Rose's breach of warranty claim rests upon the allegation that there existed "defects in the said swimming pool and its design, material, manufacture, and installation."

   V.

   Finally, we address the question of whether, at the time of Rose's injury on July 4, 1991, 20 years had passed since the "entire improvement first became available for its intended use." Under § 5-108(a), construction or installation of the entire improvement need not be totally completed[***45] for the entire improvement to be considered "first . . . available for its intended use." Rather, the phrase "first . . . available for its intended use" means the entire improvement must only be substantially completed or completed to such a degree that it is capable of being used in its intended manner. See Article 57, § 20, supra (improvement is "substantially completed" when it is "first available for its intended use.")

   In granting summary judgment in favor of Fox, the trial court found that there was no genuine dispute that the "entire improvement first became available for its intended use" prior to July 4, 1971--20 years prior to Rose's injury on July 4, 1991--and that Fox consequently was entitled to judgment as a matter of law. The evidence which was before the trial judge when he was making that determination consisted of the warranty card and the deposition testimony of both Rudi and Hannelore Schanne.

   In Rudi Schanne's deposition, the following statements were made:
 
[*379] [Question]: Prior to the date of this incident, you had a pool installed?

[Mr. Schanne]: Yes.

[Question]: When had you got that pool installed?

[Mr. Schanne]: The pool got [***46] installed in 1971.

[Question]: When in 1971?

 [Mr. Schanne]: It was early in the spring. I don't even know to tell you the date, but I would say somewhere around March of '71.
 
Hannelore Schanne provided the following testimony in her deposition:
 
[Question]: Were they finished [with construction of the pool] by the end of April? Were they finished with it, or did it go into May?

[Mrs. Schanne]: I think it was the beginning of May really. It took them a long time.

[**920] [Question]: So by the end of May they were finished with everything they had to do on the pool?

[Mrs. Schanne]: Correct.

[Question]: When did you start swimming in the pool? May or June?

[Mrs. Schanne]: Let's see. Because my sister-in-law said I'm crazy, it was then end of May. The water was very cold.
 
Mrs. Schanne also testified in her deposition that she was given the warranty card for the pool on the day that construction was completed. The warranty card was dated July 12, 1971.

   The trial judge relied primarily upon Mrs. Schanne's statement that she was swimming in the pool in May 1971 in concluding that the entire improvement first became available for its intended[***47] use by May 1971. We find, however, that the testimony that a warranty card was presented to Mrs. Schanne on the day that construction was completed and the fact that the warranty card was dated July 12, 1971 raises the inference that installation of the pool may not have actually[*380] been "substantially completed" until after July 4, 1971. Since all inferences from the evidence must be drawn in favor of Rose, the party opposing summary judgment, we find that the evidence presented to the trial court raised an genuine issue as to when the entire improvement was "first . . . available for its intended use." Accordingly, we hold that the trial court erred in granting summary judgment in favor of Fox. See Maryland Rule 2-501; Foy v. Prudential Ins. Co., 316 Md. 418, 422, 559 A.2d 371, 373 (1989).

   We conclude that the trial court was correct in determining that § 5-108(a) of the statute of repose applies to the instant cause of action. We find, however, that the trial court erred in its determination that there was no genuine issue of material fact with respect to whether the 20-year period required by § 5-108(a) had passed prior to the time[***48] of Rose's injury. Accordingly, we reverse the judgment of the Circuit Court and remand this case for further proceedings consistent with this opinion.

JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY REVERSED AND CASE REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION; COSTS TO ABIDE THE FINAL RESULT.

ELDRIDGE AND BELL, JJ., CONCUR IN THE RESULT ONLY. 

                       
MARYLAND RACING COMMISSION v. CHARLES H. CASTRENZE, JR.;PETER G. ANGELOS v. MARYLAND RACING COMMISSION 
No. 140, SEPTEMBER TERM, 1991, No. 11, SEPTEMBER TERM, 1992
 
COURT OF APPEALS OF MARYLAND
 
335 Md. 284; 643 A.2d 412; 1994 Md. LEXIS 88
 
   June  28, 1994, Filed

   PRIOR HISTORY: [***1] (No. 11) Appeal from the Circuit Court for Baltimore City pursuant to certiorari to Court of Special Appeals. David Ross, JUDGE.
 
(No. 140) Appeal from the Circuit Court for  Anne Arundel  County pursuant to certiorari to Court of Special Appeals. H. Chester Goudy, Jr., JUDGE.

DISPOSITION: IN NO. 140, JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY REVERSED AND CASE REMANDED TO THAT COURT FOR ENTRY OF A JUDGMENT AFFIRMING THE DECISION OF THE MARYLAND RACING COMMISSION. APPELLEE TO PAY THE COSTS. IN NO. 11, JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE CITY AFFIRMED. APPELLANT TO PAY THE COSTS.

CORE TERMS:  suspension, trainer, regulation, horse, racing, racing commission, reciprocity, suspended, notice, licensee, license, written notice, disqualified, effective, notified, purse, administrative agency, operation of law, horse racing, foreign jurisdiction, disqualified person, agency action, revocation, disqualification, contemplates, reciprocal, ineligible, promptly, discover, trained

COUNSEL: FOR PETITIONER (No. 11): ARGUED BY Frederic M. Brandes, (Law Offices of Peter G. Angelos, both on brief) both of Baltimore, Maryland. FOR PETITIONER (No. 140): ARGUED BY Bruce C. Spizler, Assistant Attorney General, (J. Joseph Curran, Jr., Attorney General, both on brief) both of Baltimore, Maryland.
 
FOR RESPONDENT (No. 11): ARGUED BY Bruce C. Spizler, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General, both on brief) both of Baltimore, Maryland. FOR PETITIONER (No. 140): William M. Huddles, (Andrew H. Vance, Braude & Margulies, P. C., all on brief), all of Baltimore, Maryland.

JUDGES: ARGUED [***2] BEFORE Murphy, C.J., Eldridge, Rodowsky, McAuliffe, * Chasanow, Karwacki, Bell JJ. 

* McAuliffe, J., now retired, participated in the hearing and conference of this case while an active member of this Court; after being recalled pursuant to the Constitution, Article IV, Section 3A, he also participated in the decision and adoption of this opinion.

 

OPINIONBY: ELDRIDGE

OPINION: [*287]
 
[**413] Opinion by Eldridge, J.

   Bell, J. dissents.

   The principal issue before us in these cases concerns the relationship between the license suspension provisions of the Maryland Administrative Procedure Act ("APA"), Code (1984, 1993 Repl. Vol.), § 10-405 of the State Government Article, and a regulation of the Maryland Racing Commission providing that the Commission will reciprocally honor a suspension of a trainer's license by a sister racing jurisdiction. n1 For the[*288] reasons discussed below, we hold that the automatic disqualification of a trainer from racing in Maryland by virtue of a foreign suspension does not itself amount to a license suspension by the Maryland Racing Commission and, therefore, does not require compliance with § 10-405 of the APA. Furthermore, we hold that, in the context of reciprocally honoring another [***3] jurisdiction's suspension, due process requirements are satisfied when the trainer is promptly given written notice of the facts deemed to warrant the reciprocal ruling and is informed of the opportunity to be heard on the matter.

n1 The Administrative Procedure Act was codified at Code (1984, 1993 Repl. Vol.), §§ 10-101 through 10-405 of the State Government Article. Section 10-405, in effect during the time period relevant to these two actions, provided:
 
"Revocation and suspension.

   (a) In general. - Except as provided in subsection (b) of this section, a unit may not revoke or suspend a license unless the unit first gives the licensee:

   (1) written notice of the facts that warrant suspension or revocation; and
 
(2) an opportunity to be heard.

   (b) Emergency action. - A unit may order summarily the suspension of a license if the unit:

   (1) finds that the public health, safety, or welfare imperatively requires emergency action; and
 
(2) promptly gives the licensee:

   (i) written notice of the suspension, the finding, and the reasons that support the finding; and
 
(ii) an opportunity to be heard."
  
Recognizing that license revocations and suspensions by their nature constitute a subset of contested cases generally, by Ch. 59 of the Acts of 1993, the General Assembly repealed § 10-405 and merged it without substantive change into the subtitle dealing with contested cases. See Code (1984, 1993 Repl. Vol., 1993 Supp.), § 10-226(c) of the State Government Article. See also Maryland State Police v. Zeigler, 330 Md. 540, 553, 625 A.2d 914, 920 (1993); Medical Waste v. Maryland Waste, 327 Md. 596, 609, 612 A.2d 241, 247 (1992). The new provision enacted by Ch. 59 applies to all administrative proceedings commencing on or after June 1, 1993.

[***4]

   [**414] I.

   This opinion involves two separate cases, and we set forth below the facts of each case.

   A. No. 140, Maryland Racing Commission

   v. Castrenze

   Charles H. Castrenze, Jr., is licensed in Maryland and Delaware, as well as in other states, as a trainer of thoroughbred race horses. On June 30, 1990, Castrenze failed to arrange for the timely administration of Furosemide (Lasix) to a horse which he had entered in a Delaware race, resulting in a late scratch. Consequently, on July 2, 1990, the Delaware Stewards fined Castrenze one hundred dollars. When Castrenze failed to pay the fine or take an appeal after 20 days had elapsed, the Delaware Stewards suspended his trainer's license. A copy of the suspension notice was mailed to Castrenze from Delaware on July 23, 1990. On July 28, 1990, Castrenze paid the Delaware fine and was restored to good standing. [*289]

   On July 24, 1990, a horse trained by Castrenze was entered in the fourth race at the Laurel Race Course in Maryland. The horse, ELLOREE, won the race. Notice of Castrenze's Delaware suspension was published one day later in the Daily Racing Form of July 25, 1990. A competing trainer saw the publication and filed a protest with[***5] the Maryland Stewards on July 26, 1990, claiming that Castrenze had been ineligible to race ELLOREE in Maryland while under suspension in Delaware.

   Thereafter, the Stewards gave Castrenze notice, and they conducted a hearing in the matter on August 4, 1990. After hearing testimony and reviewing the evidence, the Stewards determined that since "trainer Charles [H.] Castrenze was ineligible to participate in racing at Laurel Race Course on Tuesday, July 24, 1990," the horse ELLOREE was "disqualified from first position and placed last in the fourth race on Tuesday, July 24, 1990." Two Racing Commission regulations, when read together, provided the basis for the Stewards' determination. COMAR 09.10.01.48A provides for the Commission's recognition of a suspension issued by an authorized racing association in any other jurisdiction. n2 COMAR 09.10.01.17(CC) provides that a horse managed by a disqualified person may not be entered in a race. n3 Applying these provisions, the Stewards disqualified ELLOREE from first position, placed ELLOREE last in the race, and ordered that the purse be redistributed according to the new order of finish.

n2 COMAR 09.10.01.48(A) states as follows:
 
".48 Reciprocity Rulings.

   A. Each person suspended or ruled off the course of a recognized association in any other state or any other country is ruled off wherever these rules have force."

[***6] 

n3 COMAR 09.10.01.17(CC), formerly located at 09.10.01.17(DD), provides:
 
"CC. A horse may not be qualified to be entered, or to start in any race, if owned in whole or in part, or is under the management, directly or indirectly, of a disqualified person."

[*290]

   Castrenze appealed the Stewards' decision to the Maryland Racing Commission, claiming that he had not been notified of his Delaware suspension, either by the Delaware racing authority or the Maryland Racing Commission, prior to the running of the race in Maryland. The Racing Commission held a de novo hearing on the matter on December 12, 1990.

   Initially at the hearing, the testimony of the Commission's chief investigator established that Castrenze had been under a Delaware suspension when he raced ELLOREE in Maryland on July 24, 1990. The remainder of the testimony at the hearing centered on whether Castrenze received notice by the Delaware Stewards of their suspension in time to affect his decision to race in Maryland. One administrative Steward testified that, [***7] regardless of when the Delaware notification may have been sent, "the point [of Maryland's reciprocity ruling] was that a man is ruled off when the ruling is issued by the governing body." At the end of the hearing, the Racing Commission unanimously voted to uphold the Stewards' decision, informing Castrenze that
 
"the rule says a horse may not be qualified to be entered or to start in any race if owned in whole or in part or is under the management directly or indirectly of a disqualified person. There's no requirement as far as notice is concerned, and [Mr. [**415] Castrenze] we're sympathetic toward you . . . but the rule states and it really binds the Commission. . . . When that horse ran you were disqualified whether or not you had notice."

   In its written Memorandum and Order issued on January 18, 1991, the Commission alternatively held that "trainer Charles H. Castrenze, Jr. was properly notified that he had been fined $100 by the Delaware Stewards on June 30, 1990, and that such fine must be paid within 48 hours of its imposition absent a timely appeal." The Commission further found that "trainer Castrenze raced the horse 'ELLOREE' in the fourth race at Laurel Race Course on July [***8]24, 1990, while under suspension by the Delaware Racing Commission for failure to pay the fine." Taking into account only the fact[*291] of the Delaware suspension and the timing of the Maryland race, the Commission concluded:

   "By virtue of his suspension in Delaware and being denied the privileges of the grounds in Delaware, trainer Castrenze was, likewise, under a suspension and denied the privileges of the grounds of race tracks in Maryland. COMAR 09.10.01.48(A).

   ". . . On July 24, 1990, the horse 'ELLOREE' was under the management of trainer Castrenze, then a disqualified person, and, as a result, the horse was not qualified to start the fourth race at Laurel Race Course on that date. COMAR 09.10.01.17[(CC)]."

   Castrenze filed this action for judicial review in the Circuit Court for Anne Arundel County. The circuit court, framing the issue as "whether the Maryland Racing Commission may suspend the license of a horse trainer pursuant to its reciprocity regulations without first providing notice of such suspension and an opportunity to be heard," held that the action of the Racing Commission violated § 10-405 of the APA. In overruling the Racing Commission's decision, the court stated[***9] as follows:
 
"The Racing Commission's application of its reciprocity regulation runs counter to the clear language of the statute requiring both notice and an opportunity for a hearing prior to the suspension of a license. Here Appellant was not provided with both notice and an opportunity to be heard until after July 24, 1990, the relevant date of suspension in Maryland. After first providing both notice and a hearing, the Racing Commission could have suspended Appellant as of the time of the initial hearing on August 4, 1990, but it could not suspend retroactively back to July 24, 1990."
 
The Racing Commission then appealed to the Court of Special Appeals, and, before consideration of the case by that court, we issued a writ of certiorari.

   B. No. 11, Angelos v.

   Maryland Racing Commission

   Peter G. Angelos is the owner of WIN A GAME, a thoroughbred race horse. WIN A GAME won the seventh race at[*292] the Pimlico Race Course in Maryland on May 25, 1991. Subsequent to the running of the race, the Maryland Stewards discovered that the horse's trainer, John Battista Pizzurro, had been suspended effective May 25, 1991, at the Philadelphia Park racetrack in Pennsylvania, for failure[***10] to pay a forty dollar jockey fee.

   The Stewards notified Pizzurro to appear before them for a hearing. As in the Castrenze case, the Stewards applied the COMAR 09.10.01.48(A) reciprocity rule in conjunction with the eligibility rule in COMAR 09.10.01.17(CC), and determined that WIN A GAME had been ineligible to race in the seventh race on May 25, 1991, because at that time the horse's trainer was under suspension in Pennsylvania. They ordered WIN A GAME disqualified from the race and the purse redistributed among the qualified horses.

   Angelos appealed to the Racing Commission from the Stewards' decision and was granted a hearing. The uncontradicted evidence at the hearing established that trainer Pizzurro had been under a suspension by another jurisdiction when he raced the winning horse in Maryland on May 25, 1991. At the conclusion of the hearing, the Racing Commission unanimously affirmed, finding that
 
[**416] "reciprocity is simply a matter of the full faith and the credit of another state . . . it is not an issue we can revisit and examine when another state has suspended a licensee, . . . reciprocity exists and we accept it."
 
The Commission reiterated this point in its written[***11] Memorandum and Order of August 16, 1991, holding:

   "Full faith and credit is to be given by the Maryland Racing Commission to a suspension issued by a foreign jurisdiction, and every person suspended or ruled off the course of a recognized racing association, such as Philadelphia Park, is also deemed to be ruled off in Maryland. COMAR 09.10.01.48(A).

   ". . . 'WIN A GAME' was under the management of trainer Pizzurro when he participated in the seventh race at Pimlico Race Course on May 25, 1991. In light of the[*293] suspension issued by the Pennsylvania Stewards, trainer Pizzurro was a 'disqualified' person on May 25, 1991, and, as such, 'WIN A GAME' was not qualified to start in the seventh race at Pimlico Race Course on May 25, 1991. COMAR 09.10.01.17(CC).

   ". . . Neither the Maryland Stewards nor the Maryland Racing Commission is obligated or compelled to extend efforts to verify the propriety of proceedings conducted in a foreign jurisdiction that lead to a suspension, or to address collateral attacks made on the validity of the procedures utilized in the foreign jurisdiction that lead to a suspension."

   Angelos filed an action for judicial review in the Circuit Court for Baltimore City. [***12] The court affirmed the decision of the Racing Commission, stating: "I can find no legal defect in their decision and as unfair as it is to the appellant in this case, the decision will have to stand." Angelos noted an appeal to the Court of Special Appeals and, prior to any proceedings in the intermediate appellate court, petitioned this Court for a writ of certiorari. We granted the petition and ordered that this case be argued on the same day as the Castrenze case.

   Pending the determination of these cases, the prize money from each contested race is being held in an interest-bearing escrow account pursuant to COMAR 09.10.01.14.

   II.

   As a threshold matter, we must determine whether the Racing Commission has standing to appeal the circuit court's reversal of its order in the Castrenze case.

    Castrenze argues that "the [Racing] Commission has no right to appeal since it performed a purely quasi-judicial function." This argument is derived from Zoning Appeals Board v. McKinney, 174 Md. 551, 199 A. 540 (1938), in which the Court took the position that, absent specific statutory authority, an administrative agency exercising a quasi-judicial[***13] function usually is not entitled to appeal from a circuit court judgment reversing the agency's decision. In recent years, [*294] however, we have made it clear that the McKinney doctrine does not apply to all agencies or to all adjudicative administrative proceedings.  See Board v. Haberlin, 320 Md. 399, 404, 578 A.2d 215, 217 (1990); Real Estate Comm'n v. Johnson, 320 Md. 91, 97, 576 A.2d 760, 763 (1990); Department v. Bo Peep, 317 Md. 573, 584-585, 565 A.2d 1015, 1020 (1989), cert. denied, 494 U.S. 1067, 110 S.Ct. 1784, 108 L.Ed.2d 786(1990); Motor Vehicle Admin. v. Lindsay,  309 Md. 557, 561, 525 A.2d 1051, 1053 (1987); Consumer Protection v. Consumer Pub., 304 Md. 731, 742-746, 501 A.2d 48, 54 (1985); County Comm'rs of Carroll Co. v. Gross, 301 Md. 473, 477-481, 483 A.2d 755, 757-759 (1984). We have taken the position that, under the general statutory[***14] authorizations for appeal, agencies are entitled to appeal from adverse circuit court judgments where the functions of the agencies "'are so identified with the execution of some definite public policy as the representative of the State, that their participation in litigation affecting their decisions is regarded by the Legislature as essential to the adequate protection of the State's interests.'" Consumer Protection v. Consumer Pub., supra, 304 Md. at 743, 501 A.2d at 54, quoting McKinney, supra, 174 Md. at 561, 199 A. at 545.

   The Racing Commission is not simply an adjudicatory agency. Rather, the Commission [**417] performs an active role of policy formation in order to ensure the integrity of horse racing in this State. "The Legislature's purpose in granting to the Racing Commission the authority to promulgate rules was to assure that horse races in Maryland are 'conducted fairly, decently and cleanly.'" Heft v. Md. Racing Comm'n, 323 Md. 257, 263-264, 592 A.2d 1110, 1113 (1991), quoting Mahoney v. Byers, 187 Md. 81, 84, 48 A.2d 600, 602 (1946). [***15]The sport of horse racing exists "only because it is financed by the receipts from controlled legalized gambling which must be kept as far above suspicion as possible." Jacobson v. Md. Racing Comm'n, 261 Md. 180, 183, 274 A.2d 102, 103 (1971). See also Maryland Racing Comm. v. McGee, 212 Md. 69, 76, 128 A.2d 419, 423 (1957).

   The Racing Commission is given broad statutory authority to adopt regulations governing horse racing and betting on[*295] racing in Maryland. Code (1992), § 11-210(a)(1) of the Business Regulation Article. It may investigate any office, track, or place of business of a licensee to ensure that the regulations of the Racing Commission are strictly complied with. § 11-211(a)(1). The Racing Commission has the power to require that an employee or official of a licensee be removed from the job. § 11-211(b). It may maintain a testing laboratory. § 11-212(a). Each of these provisions "is addressed to protecting the integrity and honesty of betting for the public." Silbert v. Ramsey, 301 Md. 96, 106, 482 A.2d 147, 152 (1984). Like the racing[***16] commissions in sister racing jurisdictions, the Maryland Racing Commission "is charged with the duty of protecting substantial public interest and is therefore a representative of this interest in all proceedings." Kentucky State Racing Commission v. Fuller, 481 S.W.2d 298, 301 (Ky. 1972).

   In Consumer Protection v. Consumer Pub., supra, 304 Md. at 746, 501 A.2d at 56, we stated that the
 
"Consumer Protection Division exercises a broad range of functions including rulemaking, investigating and prosecuting alleged violators of the statute. . . . The functions of the Division are closely 'identified with the execution of . . . public policy as the representative of the state.' McKinney, supra, 174 Md. at 561, 199 A. 540. With its many different functions, its mandate to protect consumers and its role as a representative of the interests of the State, the Division is not the type of agency to which the rationale of McKinney applies."
 
The same statement is equally applicable to the Maryland Racing Commission.

   For the above reasons, we hold that the Racing[***17] Commission has standing to maintain this appeal. n4 

n4 By Ch. 59 of the Acts of 1993, the General Assembly formally overturned the McKinney doctrine with respect to state administrative agencies subject to the APA. See Report of the Commission to Revise the Administrative Procedure Act: Initial Report on Subtitles 2 and 4 of the APA, 10, 55-57 (September 1, 1992). Newly enacted § 10-223(b)(2) of the State Government Article provides that an agency may appeal an adverse final judgment of the circuit court. The General Assembly did not make this provision retroactive to cases currently in litigation. Had the Castrenze case been filed on or after June 1, 1993, the Racing Commission would have standing under the new provision to appeal the reversal of its order by the circuit court.

[*296]

   III.

   Both Castrenze and Angelos argue that, in applying COMAR 09.10.10.48A, the Maryland Racing Commission retroactively suspended the trainers' licenses, with the effectiveness of the suspensions being prior to the time of notice [***18]and the opportunity to be heard. They contend that such agency action violates the procedural safeguards provided for in Code (1984, 1993 Repl. Vol.), § 10-405(a) of the State Government Article.

   In its arguments to this Court, the Racing Commission seems to take somewhat inconsistent positions. The Commission first appears to dispute the characterization of COMAR 09.10.01.48A as effecting retroactive license suspensions, reasoning instead in the Castrenze case that "the Commission (and its Stewards) merely honored a suspension imposed in Delaware by invoking Maryland reciprocity provisions," and similarly, in the Angelos case, that "the Stewards and the Commission merely honored, through a reciprocity regulation, the sanction imposed on Pizzurro in Pennsylvania, the effect of which [**418]was the disqualification of the horse trained by Pizzurro." At the same time, however, the Commission maintains that there was complete compliance with § 10-405(a), which is applicable only when a Maryland administrative unit takes action "to revoke or suspend a license." n5 

 n5 The § 10-405 issue in these cases concerns subsection (a) and not subsection (b). At no time in either case did the Commission purport to invoke the "emergency action" provisions of § 10-405(b), and in this Court the Commission does not rely on § 10-405(b). Moreover, nothing in § 10-405(b) authorizes a retroactive suspension; the subsection simply authorizes an immediate suspension, prior to the notice and opportunity to be heard.

[***19]

   We agree with Castrenze and Angelos that, by enacting § 10-405(a), the General Assembly intended that an administrative[*297] agency could not suspend a license without first giving the licensee written notice of the facts that warrant suspension and an opportunity to be heard in the matter. Under the plain language of § 10-405(a), the notice and opportunity for a hearing must occur "first," prior to the effective date of any suspension. Clearly then, § 10-405(a)'s procedural requirements would apply if, in honoring a license suspension issued by another racing jurisdiction, the Maryland Racing Commission's action is deemed to constitute a "suspension" within the meaning of § 10-405(a). Under that view, the Racing Commission would be prohibited from retroactively dating its own suspension to the time of the race, which was prior to the date when the trainer was notified and informed of the opportunity to be heard.

   Nevertheless, as we view § 10-405 and COMAR 09.10.01.48A, application of the reciprocity regulation does not constitute a "suspension" by the Maryland Racing Commission within the meaning of § 10-405. Rather, it was by operation of law, and not by any agency action under § 10-405, [***20] that both trainers were ruled off of Maryland's race courses. The only suspensions rendered were by the Delaware and Pennsylvania authorities. COMAR 09.10.01.48A automatically required that the Delaware and Pennsylvania suspensions be given effect in Maryland. n6 

n6 The dissent asserts that "without some action taken in Maryland by a Maryland agency, effect could not be given to the extra-Maryland suspension - there could be no disqualification of the trainer." We do not agree that any action by a Maryland agency was necessary before these trainers were ruled off of Maryland's racetracks. Both Castrenze and Pizzurro were already ruled off in Maryland at the time that the races were run, not by reason of any action taken by the Maryland Racing authorities to effect the suspensions, but by operation of law.

   In requiring that an administrative agency grant written notice of the facts warranting a suspension and an opportunity to be heard on the matter, § 10-405(a) contemplates a procedure under which a licensee may have[***21] the charges fully tried. See 2 F. Cooper, State Administrative Law 495 (1965). Such a scheme necessarily contemplates factual findings by the agency concerning the licensee's underlying conduct. As COMAR[*298] 09.10.01.48A is worded and applied by the Maryland racing authorities, however, the regulation leaves no room for factual findings regarding the nature of the licensee's conduct and whether that conduct warrants a suspension. The provision flatly states that where a person is suspended or ruled off by any recognized racing association, that person is likewise ruled off in Maryland. The regulation does not state that a foreign suspension is merely to be taken into account in determining whether to effect a suspension in Maryland. Compare COMAR 09.10.01.48A with COMAR 09.10.01.48B ("Denial of a license by the racing commission of any other jurisdiction may be considered as grounds for denial of a license by the Commission").

   Furthermore, it is clear from the administrative record that the scope of the pertinent inquiry at the Commission's hearings encompassed only those events triggering application of the COMAR 09.10.01.48A reciprocity provision, and did not include[***22] inquiries into the underlying facts or conduct or consideration of mitigating circumstances. n7 COMAR 09.10.01.48A is fully self-executing, allowing for complete reciprocity in enforcement [**419] among racing states. By applying the reciprocity regulation, the Maryland Racing Commission did not suspend the trainers. Rather, the trainers were suspended by Delaware and Pennsylvania authorities, and those suspensions were effective in Maryland by operation of law. n8 

n7 While raised by both Castrenze and Angelos before the Racing Commission, neither raises before this Court the issue of whether defective notice in the foreign jurisdiction may be a defense in the Maryland proceeding. Thus, we need not here explore the issue.

n8 Neither Castrenze nor Angelos contends that the COMAR 09.10.01.48A reciprocity regulation is invalid. Thus, we presume that the regulation is authorized by law and carries the force of a statute. See 2 K. Davis & R. Pierce, Jr., Administrative Law Treatise § 6.3, at 233-234 (3d ed. 1994) ("A legislative rule has the same binding effect as a statute. . . . Courts must affirm a legislative rule as long as it represents a valid exercise of agency authority").

[***23]

   Consequently, these cases do not involve suspensions of licenses, by a Maryland administrative agency, which are subject to § 10-405(a). [*299]

   IV.

    Our holding that the Racing Commission's application of COMAR 09.10.01.48A does not implicate § 10-405(a) of the State Government Article does not mean that the trainers had absolutely no right to notice and the opportunity to be heard. Indeed, the trainers were entitled under due process principles to the opportunity to be heard "at a meaningful time and in a meaningful manner." Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62, 66 (1965). We cannot agree with the contention by Castrenze and Angelos, however, that due process required notice and a hearing in Maryland prior to the effective period of the reciprocal action.

   Neither the Due Process Clause of the Fourteenth Amendment nor Article 24 of the Maryland Declaration of Rights requires in every instance notice and a hearing before the rules of an administrative agency may be enforced against a licensee. As has often been stated, "due process does not require adherence to any particular procedure. On the[***24] contrary, due process is flexible and calls only for such procedural protections as the particular situation demands." Department of Transportation v. Armacost, 299 Md. 392, 416, 474 A.2d 191, 203 (1984). See, e.g., Connecticut v. Doehr, 501 U.S. 1, 10, 111 S.Ct. 2105, 2112, 115 L.Ed.2d 1, 13 (1991); Mathews v. Eldridge, 424 U.S. 319, 334, 96 S.Ct. 893, 902, 47 L.Ed.2d 18, 33 (1976); Goss v. Lopez, 419 U.S. 565, 579, 95 S.Ct. 729, 738-739, 42 L.Ed.2d 725, 737 (1975); Cafeteria Workers v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 1748, 6 L.Ed.2d 1230, 1236 (1961); Hare v. Motor Vehicle Admin., 326 Md. 296, 303, 604 A.2d 914, 917 (1992); Brosan v. Cochran, 307 Md. 662, 671, 516 A.2d 970, 975 (1986); Riger v. L & B Ltd. Partnership, 278 Md. 281, 289, 363 A.2d 481, 486 (1976),[***25] and cases there cited.

   Certainly, the magnitude of the trainer's interest in being notified that the Maryland racing authorities intend to recognize an out-of-state suspension issued against him is substantial. Balanced against that interest, however, is the State's own interest in ensuring the integrity of racing. See Barry v. [*300]Barchi, 443 U.S. 55, 65, 99 S.Ct. 2642, 2649, 61 L.Ed.2d 365, 375 (1979) (balancing a horse trainer's property interest against the state's interest in "preserving the integrity of the sport and in protecting the public from harm" and holding that due process does not require an evidentiary hearing prior to the effectuation of the trainer's suspension); Silbert v. Ramsey, supra, 301 Md. at 109, 482 A.2d at 154, quoting Jacobson v. Md. Racing Comm'n, supra, 261 Md. at 183, 274 A.2d at 103 ("horse racing is an endeavor and undertaking that necessarily must be the subject of intensive, extensive and minute regulation"); Maryland Racing Commission v. McGee, supra, 212 Md. at 76, 128 A.2d at 423;[***26] So. Md. Agri. Ass'n v. Magruder, 198 Md. 274, 279-280, 81 A.2d 592, 594 (1951).

   Another factor is the very limited scope of the issues to be resolved at the hearing. Under the terms of the reciprocity regulation, the Maryland hearing would seem to be limited to determining whether the trainer was the same person who was subject to the action in the other state, whether the other state in fact suspended the trainer, and the period of the suspension. Presumably an issue could be raised concerning the fundamental jurisdiction of the out-of-state suspending agency. In the instant cases, there were no disputes about any of these matters.

   [**420] By granting a hearing promptly after the reciprocal actions went into effect, and considering the limited scope of the issues at the hearing, the Maryland Racing Commission gave both trainers the process that was due. See Barry v. Barchi, supra, 443 U.S. at 63-65, 99 S.Ct. at 2648-2649, 61 L.Ed.2d at 374-375; Lemberos v. Laurel Racecourse, Inc., 489 F. Supp. 1376, 1387 (D. Md. 1980) ("If plaintiff can prove at trial[***27] that he has a property interest in racing his horses, a hearing should have been held either before or after he was denied the right to enter his horses in races").
 
IN NO. 140, JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY REVERSED AND CASE REMANDED TO THAT COURT FOR ENTRY OF A JUDGMENT AFFIRMING THE DECISION OF THE MARYLAND[*301]  RACING COMMISSION. APPELLEE TO PAY THE COSTS.
 
IN NO. 11, JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE CITY AFFIRMED. APPELLANT TO PAY THE COSTS.

DISSENTBY: BELL

DISSENT: Once the Maryland Racing Commission's right to appeal has been determined, with the resolution of which, in this case, I am in full agreement, the issue in this case becomes one involving determining how the Commission's actions in applying COMAR 09.10.01.48A should be characterized - deciding its substantive effect - and that, in turn, implicates the relationship between that regulation and Maryland Code (1984, 1993 Repl. Vol.) § 10.405(a) of the State Government Article. This case is not about whether it is good policy to have full reciprocity among racing states or how best to achieve a system that optimally advances the purpose of effectively and properly regulating racing. If these were the[***28] issues, then, in all probability, the result would be different. If the act of applying the regulation constitutes, or is tantamount to, a suspension of the trainer in Maryland, it was incumbent upon the Commission to comply with § 10.405(a), before forfeiting the purse earned by the horse trained by a suspended trainer.

   There is no doubt but that the intent and the effect of the regulation is to disqualify a trainer who has been suspended in another state from participating in racing in this state. To "disqualify" is "to divest or deprive of qualification: to incapacitate; to render ineligible or unfit." Black's Law Dictionary 924 (5th ed. 1979). The Maryland Racing Commission does not adjudicate the underlying suspension on the merits; it is required only to apply - give effect to - the statute. In fact, without some action taken in Maryland by a Maryland agency, effect could not be given to the extra - Maryland [*302]suspension - there could be no disqualification of the trainer. n1 Moreover, as these cases graphically demonstrate, when the Maryland Racing Commission does not discover in advance of the race won by a horse that the suspended trainer trained, because the relationship between[***29] trainer and horse renders the horse disqualified, see COMAR 09.10.01.17(cc), the further consequence of applying the regulation is that any purse that the horse wins must be forfeited. 

n1 I agree with the majority that, for reciprocity purposes, "due process requirements are satisfied when the trainer is promptly given written notice of the facts deemed to warrant the reciprocal ruling and is informed of the opportunity to be heard on the matter." Majority opinion, ___ Md. ___, ___, ___ A.2d ___, ___ [slip op. at 2].

   The majority holds that "application of the reciprocity regulation does not constitute a 'suspension' by the Maryland Racing Commission within the meaning of § 10.405." ___ Md. at ___. ___ A.2d at ___ [slip op. at 13-14]. It reasons that the regulation requires that suspensions ordered by other states be given effect in Maryland. That effect is accomplished by operation of law, not by agency action, id. at ___, ___ A.2d at ___ [slip op. at 14], and certainly not by application of § 10-405(a). Because, [***30] the majority says, § 10-405(a) "contemplates a procedure under which a licensee may have the charges fully tried," Id. [slip op. at 14], citing Cooper, State Administrative Law 94 (1965), and the regulation, as worded and applied by the Commission, [**421] precludes factual findings relating to the underlying conduct, and, instead, in this case, "encompassed only those events triggering application of COMAR 09.10.01.48(a) reciprocity provision." Id. at ___, ___ A.2d at ___ [slip op. at 15]. The majority also finds significance in the fact that the regulation does not identify a foreign suspension as a factor to be taken into account in determining the effect of a suspension in Maryland. It concludes by reiterating that the trainers were suspended in other states and their suspensions were simply made effective in Maryland by operation of law. Id.

   I cannot agree. The essential nature of the act of applying the regulation cannot be changed simply by refusing to call that act what it actually is. The effect of applying the[*303] reciprocity provision is to suspend the trainer in Maryland just as effectively as the agency action does in the other state. Characterizing it as being different[***31] does not make it so. The consequence, in other words, of applying the regulation is the exact same in this State, as it is in the State in which the suspension is recognized as a suspension. As Shakespeare put it: "That which we call a rose[, b]y any other name would smell as sweet." n2 

n2 William Shakespeare, Romeo and Juliette, The Second Act, sc.2.

   To be sure, a state may, without offending due process, give effect, in that state, to a suspension ordered in another state. It could do so, I suppose, by administrative regulation promulgated by the agency charged with regulating the activity at issue, as was done in the case sub judice. When, however, that state's legislature has provided, by statute, the procedural condition precedent to suspension, resort to that option has been foreclosed; while, in the absence of a procedural statute, reciprocity may be given effect as a matter of law, enactment of a procedural statute evidences a legislative intent to the contrary. That is precisely what has occurred in this[***32] case. Section 10-405(a) requires notice and a hearing prior to ordering a suspension. Giving effect in Maryland to a suspension ordered in another State, as I have indicated and shown, is to order a suspension in Maryland. Because § 10-405(a) is clear and unambiguous as to the procedural prerequisites for suspension, it must follow that, unless the regulation trumps the statute, the trainer's suspension was not effective in Maryland until those prerequisites were met. That being the case, forfeiture of the purses was improper.

   There is nothing in § 10-405(a) which suggests, not to mention says, that, to be effective, factual findings by the subject agency must concern the underlying conduct. That section merely requires "written notice of the facts that warrant suspension or revocation." (emphasis added) The evidence from which the facts are to be determined is defined by COMAR 09.10.01.48A. Thus, as the majority recognizes when[*304] addressing the due process requirement, a trainer receives all of the process that he or she is due when he or she is notified, in writing, of the fact of the suspension in the other State and is given the opportunity to be heard in this State. As I see[***33] it, the only requirement that needs to be added in order for there to be complete compliance with § 10-405(a) is that the notification occur prior to the trainer being declared disqualified in Maryland. If it is deemed that this statutory overlay somehow undermines the efficient and proper working of the Maryland Racing Commission, then it is to the Legislature that complaint should be addressed. In the context of a reciprocal suspension, then, the "facts" that warrant suspension are those which pertain to the fact of suspension in the other State. There need be no further amplification.

   To summarize, the regulation authorizes the Commission to declare any trainer or other person suspended in another state off-track in Maryland. Despite its unqualified language, the regulation must be read in conjunction with the statute. The statute requires that, in order for a suspension to be effective, the affected person must first be given notice and an opportunity to be heard. This scheme is clear and unambiguous and easy to administer. Ordinarily, it also will avoid the situation sub judice. When the Commission discovers that a trainer with a horse slated to race in Maryland is off-track[***34] in another state, it will notify that trainer prior to the race and, if necessary, conduct a hearing. On the other hand, if the Commission [**422] fails to discover the suspension pre-race and, therefore, does not declare the suspended trainer off-track in Maryland prior to the race, it may not forfeit the purse if that horse wins. The onus is on the Commission to discover whether, and when, trainers are suspended and to act in advance of the race. This is implicit in the statute's requirement of a hearing, after notice. The Commission's failure to so act should not, as the majority opinion contemplates and permits, inure to the detriment of an affected trainer. Certainly the Maryland Racing Commission may not be relieved, by regulation, of its obligation to police, in advance, those who[*305] participate in Maryland racing, when the Maryland Legislature has, by statute, prescribed otherwise.

   I dissent. 

WILLIAM MAURICE MINOR v. STATE OF MARYLAND 
No. 87, September Term, 1993
 
COURT OF APPEALS OF MARYLAND
 
334 Md. 707; 641 A.2d 214; 1994 Md. LEXIS 69

 May  13, 1994, Filed

   PRIOR HISTORY: [***1]

   Appeal from the Circuit Court for  Anne Arundel  County pursuant to certiorari to the Court of Special Appeals. Raymond G. Thieme, Jr., JUDGE

DISPOSITION: JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AFFIRMED. COSTS TO BE PAID BY THE APPELLANT.

CORE TERMS:  informant, probable cause, well-trained, motorcycle, police officer, stolen, objectively reasonable, issuing, theft, exclusionary rule, corroboration, bare, totality, warrant-issuing, verification, probable cause determination, search warrant, good-faith, street, Fourth Amendment, contraband, confirmed, search and seizure, objectively, reliable, criminal activity, authorization, reliability, searched, trained

COUNSEL: ARGUED BY Nancy S. Forster, Assistant Public Defender (Stephen E. Harris, Public Defender, all on brief) all of Baltimore, MD, FOR APPELLANT.
 
ARGUED BY M. Jennifer Landis, Assistant Attorney General, (J. Joseph Curran, Jr., Attorney General, both on brief) both of Baltimore, MD, FOR APPELLEE.

JUDGES: ARGUED BEFORE Rodowsky, * McAuliffe, Chasanow, Karwacki, Bell, Smith, Marvin H. and * Orth, Charles E. Jr., Judges of the Court of Appeals (retired, specially assigned), JJ.

* McAuliffe, J. now retired, participated in the hearing and conference of this case while an active member of this Court; after being recalled pursuant to the Constitution, Article IV, Section 3A, he also participated in the decision and adoption of this opinion.

* Orth, J., retired, and specially assigned, participated in the hearing, conference, decision and adoption of this opinion but died prior to the filing of the opinion.

 
OPINIONBY: RODOWSKY

OPINION: [*710]

   [**215] Opinion by Rodowsky, J., Bell, J., [***2] dissents

   In this case we apply the good faith exception to the exclusionary rule applicable to Fourth Amendment violations.

   On July 10, 1992, Sgt. Shelley W. Clemens of the Maryland State Police applied to a judge of the Circuit Court for Anne Arundel County for a warrant to search residential premises in that county. Her supporting affidavit set forth the following as the basis for probable cause to believe that theft statutes were being violated at that location.

   Sergeant Clemens was college trained in, and had fourteen years of experience in, police work, including eight years as a criminal investigator. She was assigned to the Annapolis Investigation Section of the Maryland State Police. She knew that thieves of manufactured property often remove serial numbers.

   In further support of the application affiant Clemens deposed and said:
 
"That during the week of July 5, 1992 information was received from a confidential source regarding stolen motorcycles. The following information was received:
 
"1. A 1992 Honda CBR 600 red motorcycle was stolen from an Annapolis address across from the YMCA and is now being stored in a shed located at a residence in Harwood, Maryland. (Contact[***3] with Annapolis PD confirmed that a 1992 red Honda CBR 600 Motorcycle was reported stolen on 6-27-92 from 26 Woodward Ct., Annapolis, MD.)
 
"2. The residence was described as a white single story dwelling located off the left side of Sands Road in Harwood, MD. Behind the house is a pen which houses several dogs. Parked on the side of the house is a Ford Bronco II. Also [*711]parked in the yard are two junked 280Z Datsuns, one is green in color, the other is maroon. Behind the house is a grayish blue trailer with a deck on the front. To the right of the trailer is a white/gray storage shed in which the stolen 1992 CBR is located. (This location was visited and previous information was confirmed.)
 
"3. Living on the premises is Greg Vernell Tyler, B/M, approximately 19-20 years old; Ronald (last name unknown), B/M, 20-21 years old; and Billy (last name unknown), B/M, approximately 20 years old. (A check through the motor vehicle administration revealed that Gregory Vernell Tyler Jr, B/M, DOB: 5-5-72, resides at 4766 Sands road, Harwood, MD 20776.)"

   The affidavit did not present any facts concerning the reliability of the informant or how the informant had acquired the information conveyed[***4] to the police.

   The judge signed the warrant. It included authorization to search for "serial plates and other small parts that could be removed from a motorcycle." When the warrant was executed the motorcycle was not found, but six rocks of crack cocaine, one marijuana cigarette, one envelope of "greenish vegetable matter," one plastic box of razor blades, and one triple beam balance scale were found in a bedroom of the house occupied by the petitioner, William Maurice Minor (Minor).

   [**216] Minor was charged with possession of a controlled dangerous substance with intent to distribute and with two counts of simple possession. He moved to suppress the fruits of the search for want of probable cause to support the warrant.

   At the suppression hearing Sgt. Clemens testified that she had not approached any other judge to issue the warrant, and that she had not discussed the warrant with the issuing judge. She stated that, in preparing her affidavit, she had included only as much information as she thought was necessary, because she did not want to jeopardize the confidentiality of her informant. [*712]

   Minor's motion to suppress was denied. In a written opinion, the suppression-hearing judge concluded[***5] that the warrant-issuing judge
 
"did not have a substantial basis to conclude that the issuance of the warrant was proper. While the informant in the case before this Court has provided information concerning a stolen motorcycle, there is nothing beyond a 'bare conclusion' to place it at 4766 Sands Road. Additionally, the description of the property and those persons living on it does nothing to further the argument that contraband or evidence of a crime will be found at that location. The application is noticeably void of information concerning prior related criminal activity of the suspects, the veracity of the informant, and independent corroboration of suspected criminal activity."
 
Nevertheless, the evidence was not suppressed. Applying United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984), the court found that "the officers conducting the search of 4766 Sands Road, Harwood, Maryland had, as required, an objectively reasonable basis for believing that the search was authorized by a valid warrant."

   Minor was tried under a not guilty statement of facts, convicted on the two simple possession[***6] counts, and sentenced, essentially to probation. He appealed, and this Court, on its own motion, issued the writ of certiorari prior to consideration of the matter by the Court of Special Appeals.

   Minor submits that the trial court erred in applying Leon to the facts here, because there is an absence of evidence of the reliability of the undisclosed informant and of the informant's basis of knowledge and, but for the informant's statement, there is no nexus between the crime and the place to be searched.

   Leon held that the federal exclusionary rule does not apply to evidence obtained under a search warrant that has later been found to be deficient, so long as the law enforcement officers acted in objectively reasonable reliance on the warrant. 468 U.S. at 913. This is because the[*713] exclusionary rule is designed to deter police misconduct, rather than to punish the errors of neutral magistrates. Leon's holding is also based upon the "great deference" that is afforded search warrants issued by neutral magistrates. Id. at 914. Consequently, when police officers[***7] have acted in good faith pursuant to a search warrant that is later invalidated, excluding evidence would "only rarely" serve the purposes of the exclusionary rule. Id. at 926.

   There are limits, however, to the deference afforded warrants. Leon listed four sets of circumstances under which suppression remains an appropriate remedy: (1) when the judicial officer issuing the warrant was misled by an affidavit that "the affiant knew was false or would have known was false except for his reckless disregard of the truth;" (2) when the magistrate "wholly abandoned his judicial role;" (3) when "a warrant [is] based on an affidavit 'so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable;'" or (4) when the warrant is facially deficient (e.g., failing to particularize the place to be searched). Id. at 923. Minor contends that his case falls within the third of the exceptions as set forth above.

   The opinion in Leon further explained the exception on which Minor relies, saying:
 
"Accordingly, our good-faith[***8] inquiry is confined to the objectively ascertainable question whether a reasonably well trained officer would have known that the search was [**217] illegal despite the magistrate's authorization. In making this determination, all of the circumstances--including whether the warrant application had previously been rejected by a different magistrate--may be considered."
 
Id. at 922 n.23. In summing up its holding, the Court said that the third of the exceptions to Leon's good faith rule arises if the officers "could not have harbored an objectively reasonable belief in the existence of probable cause." Id. at 926.

   Massachusetts v. Sheppard, 468 U.S. 981, 104 S. Ct. 3424, 82 L. Ed. 2d 737 (1984), decided with Leon, ruled that Leon applied[*714] where the defect in a search warrant was the failure fully to modify a preprinted form application in order to make it appropriate for the case in which it was used. The Court commented:
 
"We refuse to rule that an officer is required to disbelieve a judge who [***9]has just advised him, by word and by action, that the warrant he possesses authorizes him to conduct the search he has requested. In Massachusetts, as in most jurisdictions, the determinations of a judge acting within his jurisdiction, even if erroneous, are valid and binding until they are set aside under some recognized procedure."
 
468 U.S. at 989-90.

   The Court returned to the Leon rule when considering an immunity defense asserted to an action under 42 U.S.C. § 1983 arising out of an arrest on a warrant, the supporting affidavit for which failed to establish probable cause. Malley v. Briggs, 475 U.S. 335, 106 S. Ct. 1092, 89 L. Ed. 2d 271 (1986), held "that the same standard of objective reasonableness that we applied in the context of a suppression hearing in Leon . . . defines the qualified immunity accorded an officer whose request for a warrant allegedly caused an unconstitutional arrest." Id. at 344 (footnote omitted). Malley distilled the holding[***10] of the earlier case and applied it in the following fashion:
 
"In Leon, we stated that 'our good-faith inquiry is confined to the objectively ascertainable question whether a reasonably well-trained officer would have known that the search was illegal despite the magistrate's authorization.' 468 U.S. at 922 n.23. The analogous question in this case is whether a reasonably well-trained officer in petitioner's position would have known that his affidavit failed to establish probable cause and that he should not have applied for the warrant."
 
475 U.S. at 345 (footnote omitted).

   When this Court applied Leon in Connelly v. State, 322 Md. 719, 730, 589 A.2d 958, 964 (1991), we similarly distilled its holding by quoting the same language from Leon as was quoted in Malley.[*715]

   Although cases that raise the Leon good faith issue are to be decided on their specific facts, there is at least one common denominator among them. Implicitly these cases present a degree of tension between the role of the police officer[***11] who seeks the warrant and that of the issuing judge. A test that looks to whether the police officer knew that the warrant issued by the judge should not have been issued would seem to place the police officer in the position of reviewing the decision made by the judge, but that is not what Leon requires. First, the test is an objective, legal one, and is applied by the court that is asked to suppress. Connelly, 322 Md. at 736, 589 A.2d at 967, reversed a remand that had been ordered by Connelly v. State, 82 Md. App. 358, 571 A.2d 881 (1990), and at which good faith as a matter of fact would have been determined. Further, as Malley has elucidated Leon, the question is whether a reasonably well-trained officer would have known "that his affidavit failed to establish probable cause and that he should not have applied for the warrant." Malley, 475 U.S. at 345 (footnote omitted). Thus, the officer has no duty to second guess the judge; the officer's duty is to withhold from presentation an application for a warrant that a [***12] well-trained officer would know failed to establish probable cause.

   In the case before us we shall assume that the suppression-hearing judge correctly concluded that Sgt. Clemens's affidavit failed to demonstrate probable cause. On the Leon [**218] issue, however, the absence of averments evidencing reliability of the confidential informant on prior occasions and of the informant's basis of knowledge is not necessarily fatal. It is apparent that the affidavit attempts to present probable cause under the "totality of the circumstances" rule of Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983). In Gates, a police investigation focused on the defendant because of a tip from an anonymous source who predicted certain travel by Gates on an alleged drug run. Principally because Gates, while under surveillance, behaved in the manner predicted by the informant, there was probable cause to [*716]believe that he was engaged in illegal drug activity as the informant claimed. Id. at 246.

   Similarly, in the instant matter, the fact that there is no independent [***13]corroboration of the informant's statement that the particular stolen motorcycle was indeed at 4766 Sands Road does not foreclose probable cause and, a fortiori, does not foreclose applying the good faith rule. n1 Whether Sgt. Clemens could have held an objectively reasonable belief that she had satisfied the requirements of Gates rests principally on the parenthetical statements in her affidavit that are intended to demonstrate her verification that the informant knew that a motorcycle recently had been stolen, knew the approximate location from which the motorcycle had been stolen, and knew the precise year, make, model, and color of the motorcycle.

 n1 If the police were required independently to verify in some way the presence of the motorcycle at the specified address, then the police in Gates would have been required to verify independently that Gates was carrying drugs.

   Minor seeks to minimize the significance of Sgt. Clemens's investigatory confirmation of the accuracy of these details by arguing[***14] that the information could well be general knowledge in the community or could be a matter that was publicized by the media. The issuing judge was not required to minimize that information; rather, it could be given the significance that the judge considered appropriate. Gates teaches that
 
"the task of the issuing magistrate is simply to make a practical, common sense decision whether, given all the circumstances set forth in the affidavit before him, including the 'veracity' and 'basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place."
 
463 U.S. at 238.

   From the standpoint of our independent review, we recognize that Annapolis is a cosmopolitan community in[*717] which there are drug users who supply their habits through theft. A reasonably well-trained police officer could anticipate that an issuing judge, making a practical, common sense decision under all the circumstances, could conclude that the theft of a motorcycle in the Annapolis area would not send shock waves through the community. Indeed, Sgt. Clemens could reasonably anticipate[***15] that a judge could conclude that an anonymous informant, who knew the amount of confirmed detail about a crime of no particular notoriety that was known by this informant, might well be correct in other, unconfirmed respects, so that there was probable cause to believe the information about the location of the stolen motorcycle. The test under Leon is not whether there was probable cause, but whether "a reasonably well trained officer would have known that the search was illegal" despite the authorization from the judge. 480 U.S. at 922 n.23. The affidavit here does not fail that test.

   Minor also contends that the warrant-issuing judge could not consider that the theft of the motorcycle "from an Annapolis address across from the YMCA" had been confirmed by the reported theft of such a motorcycle from 26 Woodward Court, Annapolis. Manifestly, Sgt. Clemens intended for the warrant-issuing judge to treat the report received from the Annapolis Police Department as confirming the informant's statement describing the time and place of the theft and the property stolen.
 
   The suppression-hearing judge observed that "the affidavit does not contain verification[***16] that 26 Woodward Court is 'across from the YMCA' in Annapolis." That observation, [**219] however, does not terminate the probable cause analysis. Dean v. State, 205 Md. 274, 107 A.2d 88 (1954), dealt with an application to search an automobile, believed to be used in gambling activity. The vehicle's travels over certain named streets were described, but the affidavit did not state that those streets were within Baltimore City, the jurisdiction of the issuing judge. Dean held that judges, in considering search warrant applications, may "make use of their 'local familiarity' with the characteristics of a particular neighborhood," [*718] and they may add "this knowledge to that disclosed by or inferable from the application." Id. at 281, 107 A.2d at 91.

   For purposes of our independent review, we take judicial notice of certain facts of Annapolis geography that appear in publications distributed in that community. Standard street maps of Annapolis reflect that the area with which we are concerned lies along the southwesterly side of Truxton Park, abutting Hilltop Lane. Woodward Court is one block southwest[***17] of Hilltop Lane. Polk's Annapolis City Directories, beginning with the 1973 edition and continuing through the 1981-82 edition, reflect the existence of a YMCA on the Truxton Park side of Hilltop Lane, near Woodward Court. Telephone directories, however, do not reflect the existence of a YMCA in that area in 1992.

   Although there was a lack of precision in that aspect of Sgt. Clemens's affidavit that undertook to verify the informant's location of the theft by use of the report from the Annapolis Police, the Leon principle may still be applied. It was objectively reasonable for Sgt. Clemens to believe that she obtained verification, because it appears that the informant had described the site of the theft by reference to an earlier, but discontinued, use of a building in the neighborhood. Under Dean, a warrant-issuing judge is free to use "local familiarity" with the neighborhood in considering an application. Further, a warrant-issuing judge may consider the tendency of many persons to continue to refer to a building by its prior use, even after the use has been discontinued. Thus, Sgt. Clemens did not depart from the standard of a reasonably well-trained police officer by[***18] the less-than-precise manner in which she articulated for the warrant-issuing judge what she considered to be investigatory verification of the site of the crime described by the informant.

   Of the decisions from other jurisdictions cited by Minor, Bradley v. State, 609 N.E.2d 420 (Ind. 1993), deals with facts that are somewhat analogous to the instant matter when addressing the probable cause issue. Bradley, however, refuses to apply Leon on two grounds, the principal one of which[*719] is the knowing or recklessly false affidavit exception to the Leon rule. In Bradley the affidavit recited that a "reliable" informant had telephoned the police. The informant knew that an armed robbery had occurred in a room of a motel near a specific street in Indianapolis on the previous Friday or Saturday. The informant said that two, older, white women had been robbed by a black male who had forced his way into their room and displayed a weapon. The informant knew that luggage, jewelry, cash, and credit cards had been stolen and that one of the victims had been injured. All of this information was substantially true. The affiant swore that he had not related[***19] details of the crime to the motel staff or to the media, but the affiant could not exclude the victims or hospital staff as sources of the details. The informant identified Bradley as the robber and gave his address. A check of criminal histories revealed that Bradley resided at the specified address and had prior arrests for robbery. The Indiana Supreme Court concluded, after analyzing the circumstances in relation to Gates, that probable cause did not exist, for want of a connection between the crime and the defendant or between the stolen property and the premises to be searched. Id. at 423. Of significance to the instant matter is that the court, when turning to the Leon issue, suppressed the evidence on the following analysis:
 
"In this case the affidavit referred to the informant as reliable twice, once in the printed portion of the form and then again in the body of the affidavit, when, in fact, there was no basis to conclude that the informant was reliable. Detective Sergeant Gibbs could not have had a reasonable belief in the validity of a warrant [**220] based upon an affidavit that misrepresented an anonymous informant as reliable and was[***20] so otherwise lacking in indicia of probable cause."
 
Id. at 424 (citation omitted).

   More in keeping with the tenor of Leon is People v. Camarella, 54 Cal. 3d 592, 286 Cal. Rptr. 780, 818 P.2d 63 (1991). In May 1986 the police received a tip from an anonymous informant that the defendant was selling cocaine while employed as a bartender at a named bar in Tahoe City and from his home, [*720]near a golf course. The police reviewed drug intelligence files that disclosed information received in February 1985 from an untested informant that the defendant sold cocaine. The files also revealed that the defendant had been arrested in November 1982 for possession of cocaine. The Supreme Court of California concluded that the affidavit presenting the above-described material did not demonstrate that a reasonable officer "would have known that the affidavit, as it existed at the time it was to be presented to the magistrate, was legally insufficient without additional and more recent corroboration." Id. at 71 (footnote omitted). The officer had "conducted more than a mere 'bare bones' investigation," [***21] and he had obtained "substantial corroborating information that, although stale, was sufficient to make the probable cause determination a close question for any objectively reasonable and well-trained officer . . . ." Id.

   In the case before us the crime of theft was a consummated act. The police could not "investigate" whether the motorcycle was in the shed at 4766 Sands Road by going on the premises. Sergeant Clemens presented the information received and the extent of her confirmatory investigation to a circuit court judge to have the Gates issue decided. Under the facts here Sgt. Clemens was not obliged to withhold applying for the warrant. A reasonably well-trained officer would not have known that a judge should conclude that her investigation failed to satisfy the requirements of Gates.
 
JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AFFIRMED. COSTS TO BE PAID BY THE APPELLANT.

DISSENTBY: BELL

DISSENT: DISSENTING OPINION BY Bell, J.

    The good faith exception n1 to the exclusionary rule enunciated in United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677[*721] (1984) is an established, if not correctly decided[***22] or well reasoned, principle applicable to the resolution of Fourth Amendment search and seizure issues. Consequently, and unfortunately, since the petitioner has not raised an issue under Maryland law, it is that principle that must be applied to the resolution of the case sub judice. I say unfortunately because I agree with the Brennan dissent in Leon, see 468 U.S. at 928-60, 104 S. Ct. at 3430-45, 82 L. Ed. 2d at 702-721, and most of the Stevens dissent, see 468 U.S. at 960-61, 966-79, 104 S. Ct. at 3445-46, 3448-56, 82 L. Ed. 2d at 722-23, 726-36; the commentators who have criticized the Leon holding, e.g., Wayne R. LaFave, A Treatise on the Fourth Amendment § 1.3, at 46-80 (2d ed. 1987); Steven Duke, Making Leon Worse, 95 Yale L.J. 1405 (1986); Craig D. Uchida et al., Acting In Good Faith: The Effects of United States v. Leon On The Police And Courts, 30 Ariz. L. Rev. 467, 469-472, 475-495 (1988); Jane Campbell Moriarty, United States v. Leon: How Is It Faring In The Thirteen Original [***23]  Colonies? 18 Search and Seizure L. Rep. 9 (1991). See Lawrence Crocker, Can The Exclusionary Rule Be Saved? 84 The J. Crim. L. & Criminology 310 (1993); Comment, The Fourth Amendment: Death By Interpretation, 24 U. West L. A. L. Rev. 147 (1993); and the State high courts that have rejected its rationale and excluded illegally seized evidence pursuant to state constitutional provisions, e.g. State v. Marsala, 216 Conn. 150, 579 A.2d 58, 62-69 (Conn. 1990); State v. Guzman, 122 Idaho 981, 842 P.2d 660, 671-77 (Idaho 1992); State v. Novembrino, 105 N.J. 95, 519 A.2d 820, 845-857[**221] (N.J. 1987); State v. Gutierrez, 863 P.2d 1052 (N.M. 1993); People v. Bigelow, 66 N.Y.2d 417, 488 N.E.2d 451, 454, 457-458, 497 N.Y.S.2d 630 (N.Y. 1985); Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887, 888, 892-906 (Pa. 1991); State v. Oakes, 157 Vt. 171, 598 A.2d 119, 123-27[*722] (1991).[***24] n2 See People v. Sundling, 153 Mich. App. 277, 395 N.W.2d 308, 314-315 (Mich. App. 1986) (noting that the Michigan Supreme Court refused to adopt a good-faith exception prior to the Leon decision for essentially the reasons enumerated in the Leon dissents); State v. Grawien, 123 Wis. 2d 428, 367 N.W.2d 816, 817-818 (Wisc. App. 1985) ("The State's request that the Court adopt the Leon good-faith exception flies in the face of controlling Wisconsin law").

 n1 Query: is it an exception or intended to be the rule? The Leon majority writes as if it is the latter: "Suppression of evidence obtained pursuant to a warrant should be ordered only on a case-by-case basis and only in those unusual cases in which exclusion will further the purposes of the exclusionary rule." 468 U.S. 897, 918, 104 S. Ct. 3405, 3418, 82 L. Ed. 2d 677.

 n2 Other states, with statutory exclusionary rules, reject the good faith exception as a matter of statutory construction. See Gary v. State, 262 Ga. 573, 422 S.E.2d 426, 428-29, 430 (Ga. 1992); State v. Garcia, 547 So. 2d 628, 629-630 (Fla. 1989); Commonwealth v. Upton, 394 Mass. 363, 476 N.E.2d 548, 554 n.5 (Mass. 1985); State v. Carter, 322 N.C. 709, 370 S.E.2d 553, 559-62 (N.C. 1988); Davis v. State, 831 S.W.2d 426 (Tex. Crim. App. 1992).

[***25]

   I agree with the determination by the trial court, which the majority assumes to be correct, that the affidavit in this case failed to establish probable cause for the search and seizure. Under Leon, evidence seized pursuant to a search and seizure warrant is admissible, notwithstanding that warrant being deficient, whenever the police executing the warrant act in objectively reasonable reliance on it. 486 U.S. at 913, 104 S. Ct. at 3415, 82 L. Ed. 2d at 692. An exception to the exception applies when the police act in reliance on "a warrant based on an affidavit 'so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable."' Id. at 923, 104 S. Ct. at 3421, 82 L. Ed. 2d at 699 (quoting Brown v. Illinois, 422 U.S. 590, 610-611, 95 S. Ct. 2254, 2265-2266, 45 L. Ed. 2d 416, 431 (1975) (Powell, J., concurring in part)). The Leon Court acknowledged that an officer relying on such a warrant could not be manifesting objective good faith. Id. Of course, "the officer's reliance on the magistrate's probable-cause determination [***26]and on the technical sufficiency of the warrant he issues must be objectively reasonable." Id. at 922, 104 S. Ct. at 3420, 82 L. Ed. 2d at 698, citing Harlow v. Fitzgerald, 457 U.S. 800, 815-819, 102 S. Ct. 2727, 2737-2739, 73 L. Ed. 2d 396 (1982).

   The hearing judge concluded as follows:
 [*723]
While the informant in the case before this Court has provided information concerning a stolen motorcycle, there is nothing beyond a "bare conclusion" to place it at 4766 Sands Road. Additionally, the description of the property and those persons living on it does nothing to further the argument that contraband or evidence of a crime will be found at that location. The application is noticeably void of information concerning prior related criminal activity of the suspects, the veracity of the informant and independent corroboration of suspected criminal activity. The court certainly acknowledges that the above-referenced factors need not be present in every warrant application to support its issuance. The fluid "totality of the circumstances" test, n3 however, allows weaknesses in one area of the application to be strengthen by a strong[***27] showing in another area.

 n3 The "totality of the circumstances" test was enunciated in Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983).

 
Circuit Court opinion at 8-9. The corroboration that was done was of innocent details and, unlike in Gates, did not involve the verification of accurate predictions of future actions of a third party. Thus, the corroboration in no way tended to establish criminal activity. Moreover, confirming the existence of the address at which the informant says the stolen property is located and its physical description, does not make the commission of a crime or the location of its fruits more probable. Nor does the fact "that a crime fitting the description of the one related by the informant had actually occurred does not constitute probable cause to believe that the anonymous caller was telling the truth." Bradley v. State, 609 N.E.2d 420, 423 (Ind. 1993). In addition, [***28]as the majority opinion acknowledges, there is, in this case, at least some ambiguity as to whether the commission of the crime was confirmed. The affidavit [**222] averred that the described motorcycle "was stolen from an Annapolis address across from the YMCA," while the reported corroboration was that a motorcycle of the same description was reported stolen from a specified address, without any indication that it was across from[*724] the YMCA: in stating the facts, the hearing court noted that "while the motorcycle reported stolen was of the same color, make and model as that described by the confidential source, the affidavit does not contain verification that 26 Woodward Court is 'across from the YMCA' in Annapolis." Circuit Court opinion at 2. The facts that a crime has occurred and the confirmation that it is that crime which prompts the request for a search and seizure warrant are critical to probable cause.

   The question then is whether, based on the information in the affidavit a reasonably well-trained police officer would have believed that probable cause existed for the search of the petitioner's home. Clearly, what a reasonably well-trained police officer knows, or should know, is[***29] relevant to the determination of whether that officer's reliance is "objectively reasonable." Leon, 468 U.S. at 922, 104 S. Ct. at 3420, 82 L. Ed. 2d at 698. See State v. Guzman, 122 Idaho 981, 842 P.2d 660, 676 (Idaho 1991) (recognizing that "the good faith exception . . . places a premium on police ignorance of law" and that "there can be no doubt that the police on the street know [that there are substantial disparities between magistrates as to how much evidence is required to obtain a search warrant] from experience and will use it to their advantage, absent a reason not to do so."). This is more clearly seen in Leon at 468 U.S. at 923-24, 104 S. Ct. at 3420-22, 82 L. Ed. 2d at 699-700, in which the Court, giving its reasons, dismissed the dissents' criticism of the good faith reliance principle. Whether an officer's reliance is "objectively reasonable," of course, requires that we focus on the definition of a reasonably well-trained police officer, on what, in other words, such an officer should know?

   A reasonably well-trained[***30] police officer is chargeable, first of all, with knowing what the Fourth Amendment prohibits: both unreasonable searches and seizures and the issuance of warrants except on probable cause. n4 Thus, he or she should[*725] know that a warrant cannot authorize an unreasonable search and a search without probable cause cannot be reasonable. See Leon, 468 U.S. at 960-961, 104 S. Ct. at 3445-46, 82 L. Ed. 2d at 723. (Stevens, J. dissenting). He or she is also charged with knowledge of what is required for the establishment of probable cause - the Gates' totality of the circumstances test. A reasonably well-trained police officer must know, therefore, that the neutral and detached magistrate must be given sufficient information from which it could be found that there is a "fair probability that contraband or evidence of the crime will be found in a particular place." Gates, 462 U.S. at 238, 103 S. Ct. at 2332, 76 L. Ed. 2d at 548. Moreover, a reasonably well-trained police officer is charged with knowledge that the magistrate must make the probable cause determination on his [***31] or her own, using his or her independent judgment; he or she cannot "merely ratify the bare conclusions of others." Id. at 239, 103 S. Ct. at 2333, 76 L. Ed. 2d at 549. In other words, a reasonably well-trained police officer must know that the affidavit he or she submits has to "provide the magistrate with a substantial basis for determining the existence of probable cause, and . . . wholly conclusory statements . . . fail[] to meet this requirement." Id. at 239, 103 S. Ct. at 2332, 76 L. Ed. 2d at 549.

 n4 The Amendment provides:

 
The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
 
U.S. Const. amend.IV.

   Prior to Leon,[***32] a reasonably well-trained police officer was well aware that merely because a search was conducted pursuant to a warrant issued by a magistrate did not guarantee that the search would be upheld as reasonable; indeed, that officer was aware that a challenge to the search would result in a reviewing court determining whether the magistrate acted properly in issuing the warrant [**223] and the invalidation of the search if he or she were found to have acted improperly. Leon, 468 U.S. 969-70, 104 S. Ct. 3450-51, 82 L. Ed. 2d at 729 (Stevens, J. dissenting). [*726]

   Finally, a reasonably well trained police officer must be aware of Leon's teachings. That officer, therefore, knows that, under Gates his or her failure to establish probable cause is not necessarily fatal - because the reviewing court defers to the judgment of the magistrate, in a case it deems doubtful, the reviewing court will find probable cause. n5 That officer, [*727] therefore, now knows that, so long as he or she objectively and reasonably relied on the warrant, the fruits of the search, even though the search be unreasonable, because not based on probable cause, may be admitted. [***33] Logically, because it may otherwise be a disincentive for the police to conduct efficient and appropriate investigations, Leon must envision that reasonably well-trained police officers, aware of the flexibility of the Gates probable cause requirements and the further loophole it provides, would not submit an affidavit that he or she knows is borderline, at best, in the hopes that the magistrate will find the issue debatable. Thus, a reasonably well-trained police officer would not submit an affidavit to a magistrate for a probable cause determination that the officer knows, or should know, does not establish probable cause. By the same token, and for the same reason, the reasonably well-trained police officer would not submit an affidavit of which he or she has, or should have, substantial doubt.

 n5 Mr. Justice Stevens pointed out, as relevant to the case sub judice, that the totality of the circumstances test is flexible, as well as practical and commonsensical and, given the deference required to be paid the decision of the magistrate in doubtful cases, the State receives the benefit of the doubt. 468 U.S. at 967-68, 104 S. Ct. at 3449-50, 82 L. Ed. 2d at 727-728. This formulation, he asserts, gives law enforcement officers all the leeway they need since "to allow less would be to leave law-abiding citizens at the mercy of the officers' whim or caprice." Id. at 968, 104 S. Ct. at 3450, 82 L. Ed. 2d at 728, quoting Brinegar v. United States, 338 U.S. 160, 176, 69 S. Ct. 1302-1311, 93 L.Ed. 1879, 1891 (1949). Mr. Justice Stevens then said: 
 
Thus, if the majority's assumption is correct, that even after paying heavy deference to the magistrate's finding and resolving all doubt in its favor, there is no probable cause then by definition - as a matter of constitutional law - the officers' conduct was unreasonable. The Court's own hypothesis is that there was no fair likelihood that the officers would find evidence of a crime, and hence there was no reasonable law enforcement justification for their conduct.
 
Id. at 968-69, 104 S. Ct. at 3450, 82 L. Ed. 2d at 728.

   Similar sentiments were voiced by Mr. Justice Brennan, who pointed out:
 
Given the relaxed standard for assessing probable cause established just last Term in Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983), the Court's newly fashioned good-faith exception, when applied in the warrant context, will rarely, if ever, offer any greater flexibility for police than the Gates standard already supplies. In Gates, the Court held that 'the task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, . . . there is a fair probability that contraband or evidence of the crime will be found in a particular place.' Id. at 238, 103 S. Ct. at 2332, 76 L. Ed. 2d at 548. The task of a reviewing court is confined to determining whether 'the magistrate had a "substantial basis" for . . . concluding that probable cause existed.' Ibid. Given such a relaxed standard, it is virtually inconceivable that a reviewing court, when faced with a defendant's motion to suppress, could first find that a warrant was invalid under the new Gates standard, but then, at the same time, find that a police officer's reliance on such an invalid warrant was nevertheless 'objectively reasonable' under the test announced today. Because the two standards overlap so completely, it is unlikely that a warrant could be found invalid under Gates and yet the police reliance upon it could be seen as objectively reasonable; otherwise, we would have to entertain the mind-boggling concept of objectively reasonable reliance upon an objectively unreasonable warrant.
 
468 U.S. at 958-59, 104 S. Ct. at 3444-45, 82 L. Ed. 2d at 721-722.

   State v. Oakes, 157 Vt. 171, 598 A.2d 119, 125-26 (Vt. 1991) suggests that "[a] further consequence of removing review of the issuing judicial officer's probable cause determination is that there will be less guidance to these officers as to what constitutes sufficient probable cause. Without such guidance, the incidence of mistakes by issuing judicial officers will increase."

[***34]

   I am satisfied that it must have been obvious, even manifest, to a "reasonably well-trained police officer" that the affidavit in this case did not establish probable cause. See Com. v. Edmunds, 586 A.2d at 891 n.3. As the hearing court found, it contained "nothing beyond a 'bare conclusion'" that the stolen property would be found at the location [**224] reported. An affidavit containing nothing more substantial than that is hardly sufficient to pass the threshold required for submitting for a probable cause determination an affidavit purporting to establish probable cause. Since any reasonably well-trained police[*728] officer aware of Leon would know that, n6 objectively, no reasonably well-trained police officer reasonably could rely on it. See Bradley, 609 N.E.2d at 423-24 (no reasonable belief in validity of warrant which misrepresented the reliability of informant and did not provide sufficient evidence to meet the totality of the circumstances test); State v. Huggins, 733 F. Supp. 445, 448 (D.D.C. 1990) (affidavit did not provide temporal context for information); United States v. Corrigan, 809 F. Supp. 567 (M.D. Tenn. 1992)[***35] (same); People v. Reed, 559 N.Ed.2d 1169, 1172 (Ill. App. 3d 1990) (bare bones, facially overbroad warrant); State v. Diamond, 628 A.2d 1032, 1034 (Me. 1993) (affidavit based solely on non-criminal behavior and containing no information from which to corroborate that evidence of criminal activity would be found); State v. Hammett, 784 S.W.2d 293, 297 (Md. App. 1989) (bare bones affidavit).

 n6 It is curious, and troubling, that, although the petitioner does not raise the issue, a search of the house, including in places in which a motorcycle could not possibly fit was authorized by, and conducted pursuant to, this warrant.

   I dissent. 

IN RE: ADOPTION/GUARDIANSHIP NO. A91-71A IN THE CIRCUITCOURT FOR ANNE ARUNDEL COUNTY 
No. 113, September Term, 1993
 
COURT OF APPEALS OF MARYLAND
 
334 Md. 538; 640 A.2d 1085; 1994 Md. LEXIS 63
 
   May  9, 1994, Filed

   PRIOR HISTORY: [***1] Certiorari to the Court of Special Appeals (Circuit Court for  Anne Arundel  County). Lawrence Rushworth, JUDGE

DISPOSITION: JUDGMENT OF THE COURT OF SPECIAL APPEALS VACATED; CASE REMANDED TO THAT COURT WITHOUT AFFIRMANCE OR REVERSAL WITH DIRECTIONS TO REMAND THE CASE TO THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION. COSTS TO ABIDE THE RESULT.

CORE TERMS:  baby, best interest, custody, natural parent, independent adoption, exceptional circumstances, termination of parental rights, clear and convincing evidence, adoption petition, terminate, decree, fitness, separate counsel, contested, third party, prospective adoptive, detrimental, unfitness, timing, proven, Family Law Article, parental rights, visitation, abandonment, stability, pregnant, birth, appoint separate counsel, appointment of counsel, independent counsel

COUNSEL: ARGUED BY Paul Mark Sandler (Lloyd J. Snow, Freishtat & Sandler all on brief) all of Baltimore, MD (Natalie H. Rees, Rees and Boyd, P.A. all on brief) all of Towson, MD. ARGUED BY: Rignal W. Baldwin, Jr. (Deborah M. Levine, Brassel & Baldwin, P.A., all on brief) all of Annapolis, MD, FOR PETITIONER.
 
ARGUED BY Roger A. Perkins of Annapolis, MD, FOR RESPONDENT.

JUDGES: ARGUED BEFORE Murphy, C.J. Eldridge, Rodowsky, Chasanow, Karwacki, Bell, Orth, * Charles E., Jr. (Retired, specially assigned) JJ. 

* Orth, J., retired, and specially assigned, participated in the hearing and conference of this case but died prior to the adoption and filing of this opinion.

OPINIONBY: MURPHY

OPINION:  
[*542] [**1087] OPINION BY MURPHY, C.J.

    This case involves a contested independent adoption proceeding, namely, an adoption not arranged by a child placement agency[***2] but rather by and between a biological parent and prospective adoptive parents. A threshold issue in the case is whether a court must appoint separate counsel for a child who is the subject of an independent adoption. Another primary issue requires that we address the proper application[*543] of the best interest standard in terminating the rights of a natural parent who contests the independent adoption.

   Maryland Code (1984, 1991 Repl. Vol., 1993 Cum. Supp.) § 5-323 of the Family Law Article provides:
 
"(a) -- In a proceeding for an adoption or guardianship, the court shall appoint separate counsel to represent: 
 
* * * 
 
"(4) in an involuntary termination of parental rights, an individual who is the subject of the proceeding and an indigent parent . . . ."

   Maryland Code (1984, 1991 Repl. Vol.) § 5-312 of the Family Law Article is applicable to independent adoptions in which a natural parent affirmatively withholds consent by filing a notice of objection. Subsection (b) [**1088] provides that a court may grant a decree of adoption without a natural parent's consent if the prospective adoptive parent has exercised physical care, custody, or control of the child for at least 6 months, [***3] and if the court finds, by clear and convincing evidence, that:
 
"(1) it is in the best interest of the child to terminate the natural parent's rights as to the child;

"(2) the child has been out of the custody of the natural parent for at least 1 year;

"(3) the child has developed significant feelings toward and emotional ties with the petitioner; and

"(4) the natural parent:

   "(i) has not maintained meaningful contact with the child during the time the petitioner has had custody despite the opportunity to do so;

   "(ii) has repeatedly failed to contribute to the physical care and support of the child although financially able to do so; or

   "(iii) has been convicted of child abuse of the child."

   I
 
   Ernest M. and Mellisa R., both unmarried, began to live together in early June of 1990. Toward the end of July 1990, [*544] Mellisa discovered she was pregnant with Ernest's child. At the time, Mellisa was 20 years old, a dancer on Baltimore's "Block" and had a six-month-old child from a previous relationship. She had no family in Maryland and was receiving financial assistance from the State. Ernest was 21 or 22 years old. Mellisa informed Ernest that she was [***4]pregnant and, because she could not care for another child and did not believe in abortion, that she planned to put the child up for adoption. According to Mellisa, Ernest expressed no opinion as to her adoption plans, but responded to the information that she was pregnant by moving out of her apartment the following evening while she was at work, and then stopping by her place of employment to inform her that he had moved. Ernest then moved back to his grandmother's house, where he had previously been living. n1 Mellisa testified that Ernest never expressed any interest thereafter in her or the pregnancy and offered her no financial assistance. 

n1 Ernest testified that he did not move out because Mellisa was pregnant but because the relationship had lost its "excitement" and the two had "drifted apart." He claimed that he believed Mellisa was going to have an abortion and that he did not find out otherwise until he saw Mellisa at a party in late 1990. 

   Mellisa met the prospective adoptive parents, James and Darlene[***5] D., through a mutual acquaintance, and decided that she wanted them to adopt her child. The D.'s arranged to pay for Mellisa's prenatal and postnatal medical care.

   In January and February 1991, Mellisa's attorney contacted Ernest with regard to the upcoming birth and plans for adoption. Ernest indicated in a telephone conversation with Mellisa's attorney that he was willing to consent to an adoption. He said, "If the bitch wants to give it away, she can." Subsequent correspondence between Mellisa's attorney and Ernest, dated February 12 and 18, confirmed Ernest's expressed willingness to consent.

   Ernest subsequently changed his mind and engaged counsel who informed Mellisa's attorney that he would not consent to the adoption. This change in Ernest's mind-set apparently[*545] occurred after Mellisa spoke with Ernest's mother, Margaret H., and informed her of her pregnancy by Ernest and of her plans to place the child with the adoptive parents.

   On March 16, 1991, the child, a boy, was born. Mrs. D., one of the prospective adoptive parents, was present at the birth. Two days later, with Mellisa's consent, the D.'s filed in the Circuit Court for Anne Arundel County a Complaint for Independent[***6] Adoption and Change of Name. On the same day, the court signed an order granting temporary custody of the child to the D.'s, and the couple took the baby (Baby G.) home from the hospital. Also on March 18, the court issued a Show Cause Order requiring Ernest, if he intended to object to the adoption, to file a Notice of Objection on or before April 10, 1991.

   [**1089] On April 9, Ernest filed a Notice of Objection, requesting proof that he was actually Baby G.'s biological father and indicating that he would seek custody if the child was his. He subsequently filed a petition asking that blood testing be conducted to determine paternity. As he later testified, Ernest hoped that the test would establish that he was not the father, so that he would be "off the hook." The test results, however, established that Ernest was the biological father of Baby G.

   In the meantime, Mellisa filed a Conditional Revocation of Consent to Independent Adoption, stating that if the court would not finalize the adoption over Ernest's objections, she would revoke her consent to the adoption and assume Baby G.'s care and custody herself.

   On June 28, Ernest filed a Petition for Custody of the child. On July 15, he [***7] filed an ex parte Petition for Visitation, which was denied.

   The court ordered an investigation of the natural parents, which was conducted by Carol Popham, a social worker employed by the Anne Arundel County Department of Social Services. At the time of this investigation, Ernest was living with Beth W., who, according to testimony, was a prostitute on the "Block." Ernest told Popham that he and Beth W. were[*546] committed to their relationship and would raise the child together if Ernest were granted custody. But, less than a month later, Ernest called Popham to tell her that he and Beth W. were no longer together because he "did not believe that [she] would be a good influence over his son." Ernest informed Popham that he would now be living at his grandmother's house and that his mother, Margaret H., who lived with her husband elsewhere, would live at his grandmother's house Monday through Friday and would change her work schedule so that she could care for the child during the day while Ernest was at work. However, there was no assurance that she would, in fact, be able to change her work schedule and, even if she were able to do so, it appeared that there would be a gap in time between[***8] her schedule and Ernest's in which a third caregiver would be necessary. The social worker expressed the belief that Ernest's "sudden interest" in obtaining custody of the child was due to his mother's influence. In addition to questioning Ernest's commitment to Baby G., she cited behavior by Ernest which she considered irresponsible, including excessive absences from work, numerous points on his driving record, and an arrest and probation before judgment for cocaine possession. She recommended that the D.'s adoption petition be granted. n2 

n2 Popham also conducted an investigation of the adoptive parents and concluded that they could "more than provide adequately" for Baby G., that they had given the child "excellent care," and that they were "committed" to Baby G., who was described as a "happy, active baby." The D.'s had been married for approximately 15 years and had no children. Mr. D. was a 38-year-old construction supervisor who had worked in the construction business for 17 years. Mrs. D., 37 years old, was a graduate of the University of Maryland and was employed by a local company as a manager of service representatives. They owned their own home, had good employment histories and were financially secure. They had arranged for a friend and neighbor to watch the baby in their home while they were at work. Mrs. D. took leave from work to be home during the baby's first three months.

[***9]

   A hearing on the merits was set for October 10, but a continuance was granted because Mellisa's attorney was not available on that date, and the case was reset for March 6, 1992. Ernest moved for an emergency hearing and filed a [*547]Motion to Dismiss the adoption petition. The case was reset for December 13, 1991. On that day, the court (Lerner, J.) heard evidence on the issues of custody and visitation, as well as Ernest's motion to dismiss. In a December 20, 1991 order, the court held:

   1. that while it would not dismiss the adoption petition, it would not enter a decree of adoption because it did not have the authority to do so at that time;

   2. that it would not be in the child's best interest to grant visitation or custody to Ernest and that therefore visitation was denied; and

   3. that the D.'s would continue to have custody of the child, pending the completion of the adoption proceedings.

   In so concluding, the court said:
[**1090]

   "[The] issue for me today is [the] issue of custody. . . . The rights of the parents . . . are not absolute, but are subject to the best interest of the child. . . . And the right that a parent has to custody and rearing of his children is not an absolute one, [***10] but one that may be forfeited by abandonment, unfitness of a parent, or where some exceptional circumstances render[] the parent[']s custody of the child detrimental to the best interest of the child. 

   "And . . . I find that [Ernest's] background would be detrimental . . . and I'm not [going to] give him custody of that child today. He's what you call a Johnny-come-lately. He . . . says to [Mellisa] whom he lives with and fathers the child, that it's not his child. Prove it. Moves out on her. Leaves her destitute . . . for months . . . and shows up on the day that she gives birth to the child with his girlfriend.

   "His background, while you've been nice about calling these girls dancers, they're strippers on the Block. That background is extremely poor for that child.

   "The language. He says, 'if that bitch wants to keep the child, she can.' That's his attitude towards the child. 
 
 * * * 
 
[*548] "We've got to have stability in this child's background. And we're not [going to] have it giving that child to [Ernest].

    * * * 
 
"[The social worker] had an opportunity to make an in depth study in this case. . . . [Ernest] objected to being the father of the child and he[***11] had to have a lab report to prove it to him. He lived with one Beth [W.] He's just been living here and there. And there's just no stability there. In summary she says, 'One must evaluate [Ernest's] commitment to this child. I believe [Ernest's] sudden interest in this child is due to his mother's direct influence. Should he obtain custody, Mrs. [H.] will become the child's primary care-taker.' 

   "And I really believe that's so. Mrs. [H.] has already volunteered herself, with unknown consequences for her job and marriage.

   "'I believe my investigation leaves one to be uncertain of [Ernest's] future behavior and role as a parent to this child. His past behavior shows irresponsibility and poor judgment with his job, the law and his relationship with [Mellisa R.] and [Beth W].'"

   "I'm going to grant custody to Mr. and Mrs. [ D.] And there's to be no visitation because it's just [going to] totally disrupt that child. It's not in the best interest of that child."

   The Hearing on the Merits of the Adoption

   The hearing on the merits of the adoption was held April 27-29, 1992. After testimony was adduced relevant to whether, under § 5-312, the independent adoption would be[***12] granted without the consent of the natural father, the court (Wolff, J.), by order dated May 4, 1992, denied the D.'s petition for adoption, but ordered that custody of Baby G. be continued with the D.'s. The court stated that, as to § 5-312, the following had been proven by clear and convincing evidence:

   [*549] 1. that the D.'s had exercised custody of the child for at least six months;

   2. that the child had been out of the custody of Ernest for at least one year; and

   3. that the child had developed significant feelings toward and emotional ties with the D.'s.

   The court ruled, however, that it had not been proven by clear and convincing evidence that Ernest was unfit and therefore it could not find that it was in Baby G.'s best interest to terminate Ernest's rights as to the child. The court said:
 
   "We listed an argument to various things that we could consider under what would be in the best interests of the child; namely, pertaining to the fitness of the father. . . . It was pointed out that we have to look at a number of things, that taking them individually they may not be too bad. But the sum total, it's argued by counsel for the Petitioners and for the mother, that the father is [***13] not fit."

   [**1091] The court then reviewed the evidence introduced by the D.'s and Mellisa, including Ernest's driving record, the drug possession charge, his employment record, a history of instability in living arrangements, the weaknesses in his child care plan, his association with individuals employed on the Block, evidence of poor judgment regarding his relationships with Mellisa and Beth W., and his abandonment of Mellisa when she became pregnant. The court concluded that, while it was clear that the D.'s would be ideal parents to Baby G., Ernest was the natural father and he had not been shown to be unfit by clear and convincing evidence.

   The court ruled also that it had not been proven by clear and convincing evidence that Ernest failed repeatedly to contribute to the physical care and support of the child. Although neither Mellisa nor the D.'s had received any money from Ernest for medical expenses or the care of the child, the court noted that Ernest had testified that he offered to make payment to the D.'s. Ernest had produced in evidence two checks which he claimed to have given to his attorney to[*550] tender on his behalf. The first check, dated August 21, 1991, was a personal check[***14] for $7,279.79, drawn from the account of his mother, Margaret H., and made out to "cash." The second check produced by Ernest was a copy of a cashier's check for the same amount payable to Ernest, and dated December 2, 1991. The check was not endorsed. Ernest testified that the money came from "savings of [his] family," in particular of his mother and grandmother. There was no evidence that Ernest tendered or made any contribution from his own funds, although he was employed at the time. He further testified that the checks were refused by the D.'s. The D.'s testified, however, that they did not receive any offer of money from Ernest or from anyone on his behalf, nor did they expect any. The court stated:

   "So, after he was found to be the father, and I don't know whatever happened, he did offer to make payments. And we have monies that were withdrawn and that he gave to his counsel to tender. They may not have been tendered. I don't know what happened. No one produced the evidence. But according to him, he made an effort through counsel to make payments. No one ever asked any payments of him after he was established to be the father. As a matter of fact, Mr. [D.] said 'I didn't[***15] expect any money from him.'

   "So, no requests being made, having offered to pay, I don't find, again by clear and convincing evidence, that he has repeatedly failed to contribute to the physical care and support of the child."

   The D.'s filed a Notice for In Banc Review on June 10, 1992, pursuant to Article IV, § 22, of the Maryland Constitution and Maryland Rule 2-551; they raised the following questions:

   1. Whether the trial court erred by failing to appoint counsel for the child in violation of § 5-323;

   2. Whether, under § 5-312, the court erred by equating the best interest standard with Ernest's fitness; and

   3. Whether the court erred in finding that Ernest had not failed repeatedly to contribute to the child's support under § 5-312(b)(4)(ii).

   [*551] The In Banc Hearing

   Baby G. was represented by separate counsel for the first time at the in banc hearing. On November 4, 1992, the in banc panel (Duckett, Williams, and Rushworth, JJ.) held:

   1. that although the failure of the trial court to appoint counsel for the child violated § 5-323, the child's interest had been "vigorously represented" by counsel since the trial court's judgment.

   2. that the focus below on Ernest's fitness[***16] obscured the "paramount issue" of whether the adoption was in the child's best interest; that even if the court concluded that Ernest was not unfit, that finding alone did not require denial of the adoption petition; and, consequently, the trial court erroneously equated the best interest standard with the fitness of the non-consenting father, and its factual finding was therefore clearly erroneous on that issue.

   [**1092] 3. that the evidence before the trial court was insufficient to support its finding that Ernest had not failed repeatedly to contribute to the child's physical care and support under § 5-312.

   The in banc panel noted that the checks offered in evidence by Ernest at the trial were from Ernest's mother, were made payable only to Ernest, and were never endorsed or tendered on behalf of Baby G. It concluded that the child's best interests would be served by granting the adoption. It accordingly reversed the trial court's judgment and remanded the case to that court with instructions to grant the decree of adoption.

   Ernest appealed to the Court of Special Appeals, raising these questions:

   1. Whether the in banc panel erred in holding that the trial court had erroneously determined[***17] that it could not find by clear and convincing evidence that it was in Baby G.'s best interest to terminate Ernest's parental rights;

   [*552] 2. Whether the in banc panel erred in directing the trial court to grant the adoption rather than remanding the case for retrial under the proper "best interest" standard;

   3. Whether the in banc panel erred in holding that the trial court erroneously concluded that it could not find by clear and convincing evidence that Ernest had repeatedly failed to contribute to Baby G.'s physical care and support; and

   4. Whether the trial court and in banc panel erred in the application of the timing requirements of § 5-312(b).

   The Court of Special Appeals

   In an unreported opinion, the Court of Special Appeals held that the in banc panel, as an appellate tribunal, could not make an independent finding as to the child's best interest. On the record before it, the intermediate appellate court concluded that "it is unclear whether the trial court errantly equated the best interest standard with . . . [Ernest's] fitness . . . or whether the trial court was merely (and permissibly) focusing its attention on the only 'best interest' argument made by counsel . . . [***18] thereby . . . implicitly indicating that it found no 'exceptional circumstances.'" As to this, the Court of Special Appeals observed that even though the trial court concluded that Ernest was not unfit, that finding alone would not require denial of the petition for adoption because a natural parent's right may also be forfeited where some exceptional circumstances render the parent's custody of the child detrimental to the child's best interests. The court then said:

   "Absent any clear indication by the trial court as to the basis of its decision in this regard, we are unable to either affirm or reverse that court's decision. We must instead remand this case to the trial court for the purposes of clarification, to wit: if the trial court determines, by clear and convincing evidence based on the totality of the circumstances, that it is in the best interest of [Baby G.] to terminate [Ernest's] rights to the child, then the adoption petition may properly be granted irrespective of [Ernest's][*553] fitness as a parent; if, on the other hand, the trial court determines that the standard was not met, it must accordingly deny the petition." (Italics in original).

   Further in its opinion, [***19] the intermediate appellate court opined that the record could not sustain a finding other than that Ernest had failed repeatedly to contribute to Baby G.'s care and support. It said that Ernest offered no evidence that the checks produced at trial were ever offered, or even made known, to the D.'s. The court also observed that the fact that the D.'s did not request or expect support would not, without more, relieve Ernest of his duty to support the child. The court determined that "even assuming, arguendo, that the checks allegedly tendered by [Ernest] to his attorney reflected some desire to 'contribute' to [Baby G.'s] 'physical care and support,' the record sub judice cannot (as a matter of law) sustain a finding other than that [Ernest] violated FL § 5-312(b)(4)(ii)." (Italics in original).

   The court also addressed § 5-312(b)'s timing requirements. It interpreted the statute to control when the court had the power to grant an adoption, rather than when the adoption petition itself may be filed. The [**1093] court indicated that, contrary to Ernest's contention, the D.'s were not precluded from filing their petition for adoption two days after the child's birth, even though [***20] the court could not grant the adoption until the statutory time requirements had been met. Because the trial court's decision was made after Baby G. had been in the D.'s custody for at least six months, and out of the custody of Ernest for at least a year, the Court of Special Appeals held that the statutory timing requirements had been satisfied. Not addressed in the intermediate appellate court's opinion was whether the trial court erred in failing to appoint separate counsel for Baby G. under § 5-323.

    The D.'s, Mellisa, and Baby G. thereafter filed a joint petition for a writ of certiorari, asking that we decide whether "in an independent adoption - termination of parental rights proceeding, and in the circumstances of this case on remand to determine the best interest of the child, the child is required [*554]to be represented by separate counsel, pursuant to . . . § 5-323 and the child's constitutional right to due process of law."

   In a cross-petition for certiorari, Ernest maintained that the Court of Special Appeals impermissibly modified or abrogated the statutory requirements which must be proven to grant an independent adoption without the consent of a natural parent by modifying[***21] the requirements of § 5-312 to create a "totality of the circumstances" test in determining when it is in a child's best interest to terminate the rights of the natural parent. Additionally, Ernest asked that we consider whether the Court of Special Appeals erred in ruling, as a matter of law, that Ernest had repeatedly failed to contribute to Baby G.'s care and support. And finally, Ernest asked that we consider whether § 5-312's timing requirements apply to the filing or to the granting of a petition for adoption. We granted both petitions for certiorari to consider the important issues presented therein.

   II

   The D.'s, Mellisa, and Baby G. (the D.'s) argue before us that § 5-323 mandates the appointment of independent counsel for a child who is the subject of an independent adoption proceeding where termination of parental rights is at issue. They further assert that the constitutional requirements of due process, as well as public policy considerations, dictate the necessity for independent counsel in such a situation. They urge, however, that although the trial court erred in failing to appoint counsel, an entirely new trial is not required. They ask that we leave undisturbed the[***22] findings below as to the elements which have been established supporting a decree of adoption and that on remand to the trial court to determine the child's best interest, the child be represented by counsel.

   Ernest urges that there is no statutory or constitutional requirement that separate counsel be appointed for a child who is the subject of an independent adoption proceeding where a natural parent does not consent. He argues that this issue is not properly before us because it was not raised in the[*555] proceedings below. Moreover, he contends that § 5-323(a)(4) applies only to a proceeding under § 5-313 of the Family Law Article in which the State seeks to terminate a natural parent's rights. He suggests that there is a significant difference between a termination of parental rights proceeding brought by the State and an independent adoption proceeding involving only private parties. He urges that the adversarial nature of the termination proceeding brought by the State, with its vast prosecutorial resources, creates a necessity for counsel that does not exist in a proceeding involving a contested independent adoption. He states that "no practical purpose" would have been served [***23] by appointing counsel to represent Baby G.'s interests.

   As to the application of the best interest standard in considering the termination of his parental rights, Ernest argues that the trial court properly applied the appropriate standard. He contends that the court considered the evidence offered as to his unfitness as the only evidence that had been offered relative to the child's best interest. He posits that when the court concluded that unfitness had not been proven by clear and convincing evidence, it necessarily held that the D.'s and Mellisa had not produced sufficient [**1094]evidence to determine that it was in Baby G.'s best interest to terminate Ernest's rights. Ernest contends, therefore, that because unfitness was the only issue raised at trial, and no evidence was introduced as to exceptional circumstances, the Court of Special Appeals erred in holding that the adoption could be granted "irrespective of Ernest's fitness as a parent."

   As to his failure to contribute to Baby G.'s care and support, Ernest asserts that there was substantial evidence to support the trial court's factual finding that he had not failed repeatedly to contribute to Baby G.'s care and support. He also[***24] suggests that because the adoptive parents neither requested nor expected support, they cannot now claim that he failed to contribute to the child's support.

   And finally, Ernest argues that the trial court erred in not dismissing the adoption petition because, as he contends, it[*556] was prematurely filed. He says that § 5-312's timing requirements relate to the filing, not the granting, of an adoption petition. Thus, he claims that the D.'s could not file the petition for adoption until Baby G. had lived with them for at least six months and had been out of Ernest's custody for at least one year. Because the D.'s filed the adoption petition before their cause of action for an independent adoption had accrued, Ernest concludes that their petition should have been dismissed. He strongly urges that delays in the judicial system should not operate to fulfill the statutory requirements and thereby permit accrual of the cause of action for the independent adoption. Such a result, he contends, deprives him of due process of law.

   III

   A

   The Child's Right to Counsel

   The issue of whether § 5-323 mandates the appointment of separate counsel for a child where the termination of a natural parent's[***25] singular right is sought in a contested independent adoption proceeding was neither raised nor decided in any of the trial court proceedings below. As earlier indicated, the matter was raised for the first time before the in banc panel, which stated that failure to appoint separate counsel for Baby G. violated § 5-323, but noted that subsequent to the trial proceedings Baby G. had obtained separate counsel to represent his interests and that they had been well represented. Ernest's appeal to the Court of Special Appeals did not raise as an issue the matter of appointment of counsel for Baby G. The question was, however, raised again in the D.'s certiorari petition.

   Maryland Rule 8-131(a) provides that this Court "ordinarily . . . will not decide any [non-jurisdictional] issue unless it plainly appears by the record to have been raised in or decided by the trial court, but the Court may decide such an issue if necessary or desirable to guide the trial court or to[*557] avoid the expense and delay of another appeal." As to the failure to raise the issue in the trial court, we shall hold, as we did in similar circumstances in Wash. Co. Dep't Soc. Serv. v. Clark, 296 Md. 190, 200, 461 A.2d 1077 (1983), [***26]that where, as here, the person for whose protection the statute was enacted is too young to have raised the issue in the absence of counsel, we may, in our discretion, address the issue. In the circumstances of this case, we choose to do so.

   In Clark, supra, 296 Md. at 199-200, we held that the failure to appoint counsel to represent the children of the appellee, whose parental rights the State sought to terminate under then Art. 16, § 76 of the Maryland Code, violated § 77B(a)(4) of that Article requiring the appointment of counsel for the child. This latter section was recodified without substantive change as present § 5-323(a)(4) of the Family Law Article, governing the appointment of counsel in termination of parental rights proceedings.

   There is no merit in Ernest's contention that § 5-323(a)(4)'s mandate that counsel be appointed, "in an involuntary termination of parental rights, to represent an individual who is a subject of the proceeding" applies only to a proceeding brought under § 5-313 n3 and is not applicable to independent [**1095]adoption proceedings brought under § 5-312. Ernest's position is unsupported by any reference [***27] to the statutory history of § 5-323 or its precursor, § 77B.

n3 Section 5-313 sets forth the requirements for the granting of a decree of adoption or guardianship without the consent of a natural parent in situations other than an independent adoption, that is, where a child placement agency seeks to terminate parental rights so that the child can be placed for adoption. 

   The cardinal rule of statutory construction is to determine the true intent of the legislature. Condon v. State, 332 Md. 481, 491, 632 A.2d 753 (1993). We look first to the plain meaning of the language of the statute. Id. A plainly worded statute must be construed without forced interpretations designed to limit its application. Tucker v. Fireman's Fund Ins. Co., 308 Md. 69, 73, 517 A.2d 730 (1986). Section 5-323[*558] provides that in a proceeding "for an adoption or guardianship," separate counsel shall be appointed in an "involuntary termination of parental[***28] rights." The statute contains no language that would limit its application to only those proceedings brought under § 5-313. Moreover, both §§ 5-312 and 5-313 make explicit reference to a termination of parental rights. n4 Both set forth conditions prerequisite to the termination of parental rights and provide authority for the termination of rights once these conditions have been satisfied; thus, both sections govern termination actions. As we see it, for the purposes of § 5-323's applicability, there is no difference between a termination of parental rights prerequisite to the granting of an independent adoption and a termination of parental rights prerequisite to the granting of an agency-arranged adoption. In each instance, a parent's rights are irrevocably extinguished. See Joan H. Hollinger et al., Adoption Law and Practice § 4.04(1) (1993) (if an adoption can be granted without the natural parent's consent, and if the effect of the adoption is to terminate all legal rights and relationships between the child and the natural parent, the adoption proceeding is also a proceeding for termination of parental rights). 

n4 Section 5-312, which applies to independent adoptions, provides, in relevant part:
 
(b) In general. -- Without the consent of the child's natural parent, a court may grant a decree of adoption . . . .
 
* * * 
 
(c) Considerations. -- In determining whether it is in the best interest of the child to terminate a natural parent's rights as to the child, the court shall request . . . .
 
Section 5-313, which applies to adoptions other than independent adoptions, provides, in relevant part:
 
(a) In general. -- A court may grant a decree of adoption or a decree of guardianship, without the consent of a natural parent . . . .
 
* * * 
 
(b) Required considerations. -- In determining whether it is in the best interest of the child to terminate a natural parent's rights as to the child in any case, except the case of an abandoned child, the court shall consider . . . .

[***29]

   [*559] Manifestly, the need for independent counsel to represent the interest of the child is just as compelling in an independent adoption as in an agency-initiated proceeding.

   Because § 5-323 mandates n5 the appointment of counsel to represent Baby G. in the circumstances of this case, the trial court should have so ordered. n6 

n5 Section 5-323 states that the court "shall" appoint separate counsel to represent . . . an individual who is the subject of the proceeding. It is a longstanding principle of statutory construction that the word "shall" is mandatory, unless the context in which it is used indicates otherwise. Bright v. Unsat. C. & J. Fund Bd., 275 Md. 165, 169, 338 A.2d 248 (1975).

n6 The D.'s set forth constitutional arguments in support of the child's right to independent counsel in a proceeding involving the involuntary termination of parental rights. Because we hold that § 5-323 expressly requires that separate counsel for the child be appointed, we need not address the constitutional issue.

[***30]

   B

   The Best Interest Standard

   Section 5-312 provides that a court may grant a decree of adoption without the consent of the child's natural parent if certain conditions exist, one of which is that the court must find, by clear and convincing evidence, [**1096]that it is in the best interest of the child to terminate the natural parent's rights.

   This "best interest" standard has long been the standard used in Maryland to decide contested adoption cases. See, e.g., Clark, supra; Shetler v. Fink, 231 Md. 302, 190 A.2d 76 (1962); Winter v. Director, 217 Md. 391, 143 A.2d 81, cert. denied, 358 U.S. 912, 3 L. Ed. 2d 233, 79 S. Ct. 242 (1958). See also John S. Strahorn Jr., Adoption in Maryland, 7 Md. L. Rev. 275, 297-98 (1943). The same standard applies in contested custody cases. See Ross v. Hoffman, 280 Md. 172, 372 A.2d 582 (1977). This standard applies to disputes between two natural parents or between a natural parent and a third party. Id. at 175-76.[***31] 

   [*560] We have recognized that in a custody dispute between a natural parent and a third party there exists a general presumption that the child's interests are best served by granting custody to the natural parent. In Ross v. Pick, 199 Md. 341, 86 A.2d 463 (1952), we said:

   "Where parents claim the custody of a child, there is a prima facie presumption that the child's welfare will be best subserved in the care and custody of its parents rather than in the custody of others, and the burden is then cast upon the parties opposing them to show the contrary."
 
Id. at 351. See also Sider v. Sider, ___ Md. ___, ___ A.2d ___ [September Term, 1993; decided April 18, 1994]. The justification for this presumption is the belief that the parent's natural affection for the child creates a greater desire and effort to properly care for and rear the child than would exist in an individual not so related. Melton v. Connolly, 219 Md. 184, 188, 148 A.2d 387 (1959). Similarly, in adoption cases, we have recognized that the right of the parent to rear the child [***32] is one which may not be taken away unless clearly justified. And because adoption carries with it a finality not present in a custody decision, it is even more imperative that the decision be made with due regard to the rights of the natural parent. We have said:

   "Unlike awards of custody . . . adoption decrees cut the child off from the natural parent, who is made a legal stranger to his offspring. The consequences of this drastic and permanent severing of the strongest and basic natural ties and relationships has led the Legislature and this Court to make sure, as far as possible, that adoption shall not be granted over parental objection unless that course is clearly justified. The welfare and best interests of the child must be weighed with great care against every just claim of an objecting parent."
 
Walker v. Gardner, 221 Md. 280, 284, 157 A.2d 273 (1960) (citations omitted). See also Bridges v. Nicely, 304 Md. 1, 14, 497 A.2d 142 (1985) (the adoption must be "clearly warranted").

   [*561] But we have also made clear that the controlling factor, or guiding principle, in adoption and custody[***33] cases is not the natural parent's interest in raising the child, but rather what best serves the interests of the child. See Lippy v. Breidenstein, 249 Md. 415, 420, 240 A.2d 251 (1968); Ex Parte Johnson, 247 Md. 563, 569, 233 A.2d 779 (1967). We have said that in all cases where the interests of a child are in jeopardy the paramount consideration is what will best promote the child's welfare, a consideration that is of "transcendant importance." See Dietrich v. Anderson, 185 Md. 103, 116, 120, 43 A.2d 186 (1945).

   Therefore, where an adoption petition by a third party is opposed by a natural parent, a presumption that it is in the child's best interest to maintain the legal relationship with the natural parent may be rebutted by evidence of unfitness or exceptional circumstances that would render a decision in favor of the parent detrimental to the child. See Winter, supra, 217 Md. at 396.

   We have not heretofore explicitly enumerated the factors which would constitute exceptional circumstances in the context of a contested adoption case. [***34] Such a determination necessarily depends upon the facts and circumstances of each case. Shetler, supra, 231 Md. at 308. However, it is possible to derive guidance from our prior decisions. In Ross v. Hoffman, supra, we set forth a number of factors relevant to the [**1097] existence of exceptional circumstances in a custody dispute between a natural parent and a third party. We said:

   "The factors which emerge from our prior decisions which may be of probative value in determining the existence of exceptional circumstances include the length of time the child has been away from the biological parent, the age of the child when care was assumed by the third party, the possible emotional effect on the child of a change of custody, the period of time which elapsed before the parent sought to reclaim the child, the nature and strength of the ties between the child and the third party custodian, the intensity[*562] and genuineness of the parent's desire to have the child, [and] the stability and certainty as to the child's future in the custody of the parent."
 
Id. at 191.

   Our adoption decisions[***35] have rested upon similar factors. n7 We have considered the length of time that a child has been with the prospective adoptive parents and the strength of the attachment between the child and the prospective adoptive parents, see King, supra, 218 Md. at 42; we have also considered the relative stability of the child's future with the natural parent and with the prospective adoptive parents, see Atkins v. Gose, 189 Md. 542, 56 A.2d 697 (1948). 

n7 We have not previously considered the application of the best interest standard in connection with an independent adoption under § 5-312. We have considered the standard's application with regard to a precursor to § 5-312, Maryland Code (1957) Art. 16, § 74. Section 74 provided that a decree of adoption could be granted without a natural parent's consent if the court found that consent was "withheld contrary to the best interests of the child."

   We think other Ross v. Hoffman factors may be equally relevant to the consideration[***36] of exceptional circumstances in contested adoption cases: the sincerity of the natural parent's desire to rear the child, the age of the child when care was assumed by the third party, and the emotional effect of the adoption upon the child.

   Another factor that we have considered relevant to a custody decision which would be equally relevant to an adoption decision is the relative effect upon the child's stability of having one, as opposed to another, or both, of the relationships continue. See Monroe v. Monroe, 329 Md. 758, 621 A.2d 898 (1993).

   In addition to the factors noted above, we have considered as factors relevant to a child's best interests in adoption cases abandonment by the father, see Alston v. Thomas, 161 Md. 617, 620, 158 A. 24 (1932); as well as a failure to support or to[*563] visit the child, see Walker, supra, 221 Md. at 283. n8 

n8 A failure to support and a failure to maintain contact with the child have been set forth in § 5-312, along with abuse of the child, as alternative factors, one of which is necessary to grant an adoption petition without consent of the natural parent. Although these factors must be satisfied apart from their relevance to a best interest determination, they are still appropriately considered in the best interest analysis.

[***37]

   The last three factors reflect the importance of examining the natural parent's behavior with regard to the child. Such behavior provides insight into the parent's character, motivation, or ability to fulfill parental responsibilities. While a parent's behavior and character are obviously relevant to a fitness determination, they are just as relevant to a finding of exceptional circumstances that would make a decision in favor of the parent detrimental to the child. Behavior that may not be extreme enough to warrant a finding of unfitness is still relevant to the ultimate finding of whether it is in the child's best interest to grant an adoption over the objection of the parent. Therefore, in making the best interest determination, this evidence can, and should, be considered not only with regard to fitness, but as a potential factor which may give rise to exceptional circumstances warranting the termination of parental rights.

   In this regard, we note that courts have considered the natural father's abandonment of the child before the child's birth as evidence of abandonment, see, e.g., Matter of Adoption of Doe, 543 So. 2d 741 (Fla.), [***38] cert. denied, 493 U.S. 964107 L. Ed. 2d 371, 110 S. Ct. 405 (1989); Matter of Adoption of Baby Boy S., 16 Kan. App. 2d 311, 822 P.2d 76 [**1098] (1991); Doe v. Attorney W., 410 So. 2d 1312 (Miss. 1982); Matter of Adoption of Baby Boy W., 831 P.2d 643 (Okl. 1992), and we think it appropriate to consider this behavior as a factor relevant to the existence of exceptional circumstances. A man who deserts the expectant mother, aware that there is a substantial possibility that he is the father of her child, leaving her dependent upon others, with no regard for her prenatal care[*564] or concern as to whether the mother will have an abortion or carry the child to term, thereby shows a distinct lack of regard for the future well-being of both the mother and child.

   Similarly, behavior of the natural parent tending to show instability with regard to employment, personal relationships, living arrangements, and compliance with the law is also relevant to the existence of exceptional circumstances. These factors clearly relate to the parent's ability to provide a stable environment for the child, which is[***39] universally recognized as critical to a child's proper development. The mere presence of any of these factors may not warrant a finding of exceptional circumstances justifying the termination of parental rights; these are simply factors to be considered in the best interest analysis. C

   The Failure to Contribute

   Section 5-312(b)(4) sets forth three alternative factors, at least one of which must exist before a petition for adoption may be granted. The only factor relevant here is § 5-312(b)(4)(ii) -- that the natural parent "has repeatedly failed to contribute to the physical care and support of the child although financially able to do so." (Emphasis added). Ernest asserts that the Court of Special Appeals erred in overturning the trial court's factual finding that it had not been proven by clear and convincing evidence that Ernest failed repeatedly to contribute to Baby G.'s care and support. The standard applicable to the intermediate appellate court's review in this regard is whether the trial court's findings of fact were clearly erroneous. See Maryland Rule 8-131; Ross v. Hoffman, supra, 280 Md. at 185.

   The trial court[***40] based its findings on the existence of two checks, one made out to "cash," the other to Ernest, and on Ernest's testimony that he gave the checks to his attorney to offer them to the D.'s. The court concluded on that basis that Ernest had offered the money to the D.'s. It also determined that because the D.'s did not request or expect a contribution[*565] from Ernest, Ernest's efforts were sufficient to preclude a finding that he had failed to contribute to Baby G.'s support.

   Ernest does not contend that the D.'s actually received the checks which he produced at trial. Assuming that Ernest's mere offer of the checks to the D.'s would have fulfilled his responsibility to contribute to Baby G.'s support, the evidence must be sufficient to support the court's finding that Ernest actually offered the checks to the D.'s and that the checks were refused by the D.'s. Ernest asserts only that he gave the checks to his attorney and that he believes that the checks were offered to, and refused by, the D.'s. Moreover, it appears from the record that the check amount reflected the cost of Mellisa's medical bills, rather than the cost of Baby G.'s physical care and support; in our view, these are two[***41] different things and we think § 5-312(b)(4)(ii) is principally directed to the latter. Based upon the record, it appears that Ernest made no payments, nor offers, of support from his own funds for Baby G.'s physical care and support. Thus, the Court of Special Appeals did not err in holding that the trial court was clearly erroneous in concluding that it could not find by clear and convincing evidence that Ernest had repeatedly failed to contribute to Baby G.'s physical care and support. D

   The Timing Requirements

   Section 5-312(b) provides, in relevant part, that "without the consent of the child's natural parent, a court may grant a decree of adoption to [an individual] who has exercised physical care, custody or control of a child for at least 6 months, if . . . [inter alia] the child [**1099] has been out of the custody of the natural parent for at least 1 year." Ernest argues that the Court of Special Appeals erred in concluding that the "6 months" and "1 year" provisions refer not to the filing, but to the granting of the petition.

   As we stated earlier, in discerning legislative intent with regard to these provisions, we look first to the plain[*566] language of the statute. Condon [***42] , supra, 332 Md. at 491. The statute states plainly that "a court may grant a decree of adoption" upon the passage of the relevant time periods. It does not refer explicitly to the timing of the filing of the petition. Ernest asks that we construe the statute to impose this time requirement upon the filing, as well. However, where the language of a statute is clear and unambiguous, we will not add words to reflect an intent not evidenced by that language. State v. In Re Patrick A., 312 Md. 482, 487, 540 A.2d 810 (1988). Moreover, Ernest apparently finds no support for his interpretation in the legislative files. n9 He relies instead upon the principle that a cause of action must be ripe at the commencement of a suit; he thus contends that the petition was filed prematurely because the D.'s cause of action did not then exist. We disagree. The continued custody of the prospective adoptive parents and lack of custody of the natural parent for the specified period of time before a court may grant the adoption are not required to exist at the filing of the petition for adoption if the petition otherwise complies with statutory requirements. [***43] 

n9 Indeed, an examination of the legislative file for S.B. 336, the source of § 5-312's precursor, Art. 16 § 77, would lead to a contrary conclusion. During the development of this legislation, the language of § 77(b) actually read: "A petition for adoption may be filed. . . ." This language was amended to its current form before the bill was passed, clearly reflecting an intent by the legislature that the time provisions relate to the granting, rather than the filing. Moreover, the time requirements of § 77 and the original version of § 5-312 were 1 and 3 years, rather than 6 months and 1 year; § 5-312 was subsequently amended to shorten these time requirements. As the Senate Judiciary Committee report for S.B. 646 reveals, the legislative intent behind the amendment was to expedite independent adoptions. Thus, we find no support for the position that the legislature intended to impose the statutory time limits upon the filing of the petition, a requirement which would, in many cases, substantially delay the granting of an adoption petition.

[***44]

   As to Ernest's assertion that this interpretation of the statute denies him due process, we observe that throughout the period in question, Ernest was afforded the opportunity to assert his parental rights with regard to Baby G. He does not contend, nor could he, that he was not afforded an opportunity [*567]to be heard with regard to custody and other issues affecting Baby G.'s future.

   IV

   We have thus determined that § 5-323 of the Family Law Article is applicable to contested adoption cases, and that in the circumstances of this case separate independent counsel should have been appointed to represent Baby G.'s interests at the trial.

   We have also concluded that under § 5-312(b), applicable to independent adoptions, it must be shown by clear and convincing evidence that it is in the best interest of the child to terminate the natural parent's rights; and that, under this standard, any "exceptional circumstances" must also be taken into account in adjudicating the merits of the adoption petition. We agree with the Court of Special Appeals that it is unclear from the record in this case whether the trial court correctly applied the best interest analysis with regard to the existence of [***45] any exceptional circumstances which would render a decision in favor of the natural father detrimental to the child. It is manifest that all relevant evidence must be considered in light of the governing factors and principles herein articulated, not only with regard to Ernest's fitness but also to the existence of any exceptional circumstances.

   Moreover, we are in agreement with the Court of Special Appeals that, based upon the record in this case, the trial court was clearly erroneous in concluding that it could not find by clear and convincing evidence that Ernest had repeatedly failed to contribute to Baby G.'s physical care and support.

   And we also have concluded that the Court of Special Appeals correctly decided that the [**1100] petition for adoption in this case was timely filed.

   In view of our holding, we shall invoke the provisions of Maryland Rule 8-604(d), which provides:
 
"If the Court concludes that the substantial merits of a case will not be determined by affirming, reversing or modifying the judgment, or that justice will be served by permitting[*568] further proceedings, the Court may remand the case to a lower court. In the order remanding a case, the appellate court shall [***46] state the purpose for the remand. The order of remand and the opinion upon which the order is based are conclusive as to the points decided. Upon remand, the lower court shall conduct any further proceedings necessary to determine the action in accordance with the opinion and order of the appellate court."
 
Consistent with the purpose of this rule, we shall order a limited remand of the case to the trial court, first, to appoint independent counsel to represent Baby G.'s best interest and, second, to conduct further proceedings, with independent counsel's full participation in the conduct of such proceedings, in order to determine the merits of the adoption petition in accordance with the principles and precepts set forth in this opinion.
 
JUDGMENT OF THE COURT OF SPECIAL APPEALS VACATED; CASE REMANDED TO THAT COURT WITHOUT AFFIRMANCE OR REVERSAL WITH DIRECTIONS TO REMAND THE CASE TO THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION. COSTS TO ABIDE THE RESULT.

                       
DEBBIE LYNN SIDER v. BRUCE HARLAN SIDER; GUS BRYANECONOMIDES v. DEBBIE LYNN SIDER 
No. 101, September Term, 1993
 
COURT OF APPEALS OF MARYLAND
 
334 Md. 512; 639 A.2d 1076; 1994 Md. LEXIS 59
 
   April  18, 1994, Filed

   SUBSEQUENT HISTORY: As Corrected April 19, 1994.

PRIOR HISTORY: Certiorari to the Court of Special Appeals (Circuit Court for  Anne Arundel  County). James C. Cawood, Jr., JUDGE.

DISPOSITION: [***1] JUDGMENT OF THE COURT OF SPECIAL APPEALS VACATED; CASE REMANDED TO THAT COURT WITH DIRECTIONS TO REMAND THE CASE TO THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. COSTS TO ABIDE THE RESULT.

CORE TERMS:  custody, paternity, biological father, best interest, exceptional circumstances, blood test, third party, biological parent, divorce, unfit, natural father, intermediate, detrimental, visitation, biological, estopped, marital, custody dispute, Family Law Article, jointly filed, family unit, emergency, contempt, stability, chancellor, custody issue, child custody, family home, minor child, emotional

COUNSEL: ARGUED BY Charles J. Muskin of Glen Burnie, MD. (attorney for Debbie Sider).
 
ARGUED BY: Mary M. Kramer of Baltimore, MD. (attorney for Gus Economides), FOR PETITIONERS.
 
ARGUED BY Arthur I. Messinger (Carolyn Gilden Krohn, both on brief) both fo Annapolis, MD., FOR RESPONDENTS.

JUDGES: Murphy, C.J.; Eldridge, Rodowsky, Chasanow, Karwacki, Bell, Raker, JJ.

OPINIONBY: MURPHY

OPINION: [*514]
 
[**1077] OPINION BY MURPHY, C.J.
Eldridge, J. concurs.

   Our grant of certiorari in this case focuses on two interrelated issues: (1) whether a trial court may deny a petition to establish paternity jointly filed by the mother and the putative biological father of the child, and (2) whether in a divorce proceeding, custody of a minor child may be awarded to the husband, who is not the father of the child when both the mother and the biological father advocate that custody be awarded to the mother.

   I

   On October 22, 1983, Bruce Harlan Sider (Bruce) and Debbie Lynn Sider (Debbie) were married. n1 Debbie's son from her previous marriage, Sean Dansburger (Sean), resided with Debbie and Bruce in their marital home. The marriage was tumultuous from the very beginning; periods of cohabitation alternated with periods of separation. Even during the [*515] periods of cohabitation, the [***2] couple would go for months at a time without sexual relations.

n1 At the present time, Bruce is a full-time physical education teacher in the Anne Arundel County school system; Debbie is currently retired from the Baltimore County Police Department due to a work related disability.

   Sometime in the spring of 1989, Debbie had a three week affair with Gus Economides (Gus). n2 Debbie gave birth to a son, Brock Daniel Owen Sider (Brock), on January 7, 1990. Debbie maintains that she and Bruce had their doubts regarding the paternity of the child; Bruce, however, claims that both he and Debbie believed that he was the father of Brock. Gus was unaware of Debbie's pregnancy and of Brock's subsequent birth.

n2 Gus is an "officer" with the Maryland State Police.

   In September, 1991, Debbie left the marital home for the last time. On October 2, 1991, Bruce filed a[***3] Complaint for Final Divorce or Limited Divorce in the Circuit Court for Anne Arundel County. n3 In his complaint, [**1078]Bruce cited Debbie's then-ongoing adulterous affair with George Brooks (George) as the grounds for divorce. n4 In addition to a prayer for divorce, Bruce also requested in his complaint, inter alia, (1) that he be awarded permanent custody of Brock, (2) that he be awarded liberal visitation rights with Sean, (3) that he be awarded child support, (4) that he be granted use and possession of the family home, and (5) that the court make a monetary award to him.

 n3 On February 12, 1992, Debbie filed a Counter-Complaint for an Absolute Divorce. The grounds for divorce were that Bruce constructively abandoned or deserted her on or about September 28, 1991. The Circuit Court for Anne Arundel County granted an Absolute Divorce to Bruce on August 27, 1992.

n4 Since that time, Debbie has married George. Presently, she is living in Harford County with George, their daughter, and her son, Sean.

   On October 16, 1991, [***4] Bruce filed a Motion for Emergency Hearing. The grounds for the motion were that on October 12 Debbie "abandoned and deserted the family home and took with her [Brock]." Bruce further alleged in this motion that Debbie "would not reveal where she was going [ ], nor where she would be residing, nor where [Brock] would be." In a [*516] somewhat contradictory statement, he also asserted that he "has reason to believe that [Debbie] and [Brock] are presently residing with George Brooks." Bruce, therefore, requested that the court expeditiously grant an emergency hearing to resolve the custody issues relating to Brock. On October 18, 1991, the court granted Bruce's motion and set the emergency hearing for November 1, 1991.

   Sometime during this legal maneuvering, George approached Gus and informed him that Debbie suspected that Gus, and not Bruce, was Brock's father. Gus agreed to take a blood test; the results, dated October 25, 1991, indicated a 99.91% probability that Gus was in fact the father of Brock. n5 On October 31, 1991, Debbie and Gus jointly filed in the Circuit Court for Howard County a Petition to Establish Paternity. The court ordered Bruce to show cause, on or before November 30, [***5] 1991, why Gus should not be declared to be Brock's biological father.

n5 In Maryland, evidence of a blood test establishing paternity is admissible in court provided "the statistical probability of the alleged father's paternity is at least 97.3%." Maryland Code (1991 Repl. Vol.) § 5-1029(e)(1)(ii) of the Family Law Article.

   In the interim, on October 31, 1991, Debbie filed in the Circuit Court for Anne Arundel County, a motion to stay the divorce and custody proceedings pending the outcome of the paternity case in Howard County. Instead, on November 21, 1991, the court (Cawood, J.), in conjunction with the Circuit Court for Howard County (Sybert, J.), stayed the paternity case in that jurisdiction pending the resolution of the divorce and custody case in Anne Arundel County.

   At the November 1, 1991 emergency custody hearing, the court, pursuant to a stipulation by the parties, resolved the temporary custody issues. The Pendente Lite Order provided for Debbie to have custody of Brock during the week and for Bruce to[***6] have custody on weekends, with the exception of Thanksgiving and Christmas vacations when Brock would be [*517] with Bruce. n6 

n6 The order also required both Bruce and Debbie to undergo a psychological evaluation. Bruce complied with this requirement, but Debbie failed to do so, citing financial constraints as her reason.

   On January 20, 1992, Bruce filed a Petition for Contempt and Other Relief. Bruce alleged that Debbie, in violation of the Pendente Lite Order, denied his judicially scheduled visitation of Brock on several occasions. The resolution of this contempt petition is not disclosed in the record.

   On February 12, 1992, Debbie filed, in the Circuit Court for Anne Arundel County, a motion to consolidate the Howard County paternity case and the Anne Arundel County divorce and custody case. The court granted this motion on May 22, 1992.

   Earlier, on February 12, 1992, Debbie sought a court order requiring Bruce to submit to a blood test. She averred in her motion that Gus was Brock's biological father. Bruce answered[***7] this motion and denied that Gus was the biological father. The court denied Debbie's motion without a hearing.

   On March 13, 1992, the court issued another order, which reiterated that Debbie have custody of Brock during the week and that Bruce have custody of Brock on the weekends. On June 8, 1992, Bruce again filed a [**1079] Petition for Contempt and Other Relief alleging that Debbie was refusing to permit him to see Brock in violation of the court's March 13 Order. After a July 17, 1992 contempt hearing, the court (Lerner, J.) found Debbie in contempt and sentenced her to ninety days in the Anne Arundel County Detention Center, but suspended the sentence contingent on Debbie obeying all court orders.

   Debbie filed a second Motion for Blood Test on August 10, 1992. In his answer, Bruce maintained that, in denying Debbie's previous motion for blood test, "Judge James C. Cawood has already ruled a blood test unnecessary as paternity is not in dispute." Debbie eventually withdrew this motion at the beginning of the trial after the court ruled that:
 
[*518] "there was no question from a biological point of view, based on [Gus's blood] test and I think it was conceded that was [the] reason not to [have[***8] Bruce] take [a blood] test, that [Gus] was, in fact, the biological father."

   After the consolidated trial in August, 1992, Judge Cawood, in an opinion dated September 11, 1992, with respect to the paternity case, concluded:

   "There is little dispute that, at a time when she was having sexual relations with her husband and with Gus Economides, Defendant Debbie Sider became pregnant. She was not sure who the father was. However, she treated the child as that of her husband, Bruce Sider. He had no idea that anyone else was the father.

   "When the always stormy relationship between the two began to disintegrate, she became involved with George Brooks, with whom she now lives and expects to marry. Together they decided to check out the paternity. Mr. Brooks went to Economides who, as surprised as any one that his three week affair with Mrs. Sider had possibly produced a child, agreed to a blood test which determined that he was in fact the natural father.

   "By the time the results of the test were achieved, The Siders had already separated, and armed with this information, Mrs. Sider attacked. On the eve of an emergency hearing, she revealed the blood test to Mr. Sider by way of a Motion to[***9] Stay. He refused to abandon his rights to the child.

   "Mr. Sider claims he should be considered the natural parent of the child by estoppel. . . . We agree with him." (emphasis added).

   The court further reasoned that:

   "It does not take long to get attached to a child, particularly when the child is, or certainly appears to be, one's own. From the evidence in this case, Mr. Sider was deeply concerned with the upbringing of Brock. We need no professional to tell us the trauma of being told, after 21 months of a child's life, that you are not really the parent.

   [*519] "Mrs. Sider chose a course of action. She had her doubts about the paternity, but she did not disclose them because she knew the devastating effect it would have on the relationship between her and Mr. Sider. Having done this, she cannot wait for the appropriate moment to take advantage of this in a divorce proceeding."

   With respect to Gus, the court explained:

   "The question remains whether Mr. Economides is estopped. He obviously never knew about the paternity until the revelations by Mr. Brooks. Since that time he has seen the child and given [Debbie] money, but has not told the child he is the father. He seems to be [***10] doing the best he can with a difficult situation.

   "Nonetheless, we believe his rights are not paramount to Mr. Sider. If he had resisted the blood test, we cannot believe a Court would have ordered it. . . .

   "We therefore hold that, at law, Mr. Sider should be considered as the biological father of Brock." (emphasis added).

   With regard to the divorce and custody case, the court said:
 
"we find [Debbie's] actions toward [Bruce] to be spiteful -- not merely the aforementioned paternity problem, but her wilful refusal to grant him the child for weekends on end, and her turning his stepson, Sean, against him.

   [**1080] "We find extreme the hostility both Mrs. Sider and Mr. Brooks have against Mr. Sider."

   The court continued:

   "In order to improve our understanding of the complex currents behind this case, we ordered the parties to see a psychologist appointed by the Court, Stanley Zweback. Dr. Zweback, seeing only Mr. Sider, found him to be psychologically a proper parent. Mrs. Sider refused to go because it was 'too expensive and difficult.' We find it hard to believe that someone who was to obligate herself for six days of counsel fees for trial found the psychologist too expensive. In[***11] any event, she asked the Court for no relief but just [*520] disobeyed the Order, as Judge Lerner subsequently found she flagrantly violated the custody order.

   "We have no doubt that Mrs. Sider loves her child, as does Mr. Sider. She has a great advantage in that she is home all day because of injuries which required her to become permanently disabled with the Police Department. It was for that reason that we suggested originally that she have the child during the week, even though we were displeased with her actions about the paternity. However, she has shown that situation will not work."

   Therefore, the court concluded:

   "In a strict consideration of the best interests of the child, we believe Mr. Sider is the better parent. Assuming we were wrong about the estoppel theory, the question is a much closer one. Is she unfit, or are there exceptional circumstances? (citation omitted). If 'unfit' means will she hurt the child, the answer is no. There is no credible evidence that either has intentionally hurt this child or failed to provide for him. However, we consider all of the factors we have indicated above to be exceptional circumstances.

   "We therefore will give primary custody to Mr. Sider." [***12]

   The court ordered that Bruce be "recognized as the natural father of Brock" and denied the Petition for Paternity filed by Debbie and Gus. It granted custody of Brock to Bruce while reserving reasonable visitation rights to Debbie and granted Bruce the use of the family home and automobile for 18 months. The court also denied Gus's prayer for visitation.

   Debbie and Gus appealed to the Court of Special Appeals. In an unreported opinion, the intermediate appellate court first addressed the custody issues. It held that in a custody contest between a third party and a parent, custody in the parent is presumed to be in the best interests of a child and it is only after a showing that the parent is unfit, or upon a finding of exceptional circumstances, that a third party will be awarded custody.

   [*521] The court reviewed our previous cases which examined custody disputes between parents and third parties and delineated approximately 12 factors which a court should assess in determining whether exceptional circumstances exist. It concluded, however, that only four factors were relevant in the instant case:

   (1) The nature and strength of the ties between the child and the third party "custodian"; [***13]
 
   (2) The intensity and genuineness of the parent's desire to have the child;

   (3) The stability and certainty of the child's future in the custody of the parent; and
 
(4) The character and reputation of the parties.

   After reviewing each of these factors under the facts and circumstances of this case, the court agreed with the circuit court and held that "exceptional circumstances existed in this case to rebut the presumption that the minor child's best interest lay with being in the custody of his mother." It therefore affirmed the circuit court's award of custody to Bruce. n7 

n7 With regard to the custody case, the Court of Special Appeals also discussed two other issues raised by Debbie.

   First, it addressed her contention that the circuit court erred when it denied her motion to appoint separate counsel for Brock. It said that the failure to appoint counsel for Brock was not reversible error, but noted that, on remand, "the trial court . . . may wish to reconsider the propriety of appointing separate counsel to represent Brock."

   Second, the court addressed Debbie's argument that the circuit court's denial of her motions for Bruce's blood test was reversible error. The intermediate appellate court responded to this contention by stating that "all parties and courts openly acknowledged Gus's biological paternity, [and thus] paternity was not at issue in the present case (i.e., the divorce/custody case) and, therefore, the trial court did not err by denying Debbie's Motions for Blood Test (of Bruce)."

[***14]

   [**1081] The Court of Special Appeals next addressed the paternity case and the following issue raised jointly by Debbie and Gus:
 
When all of the parties stipulate that the putative father is the biological father of the child and the stipulation is supported by a blood test, does the trial court have the [*522] authority to deny the paternity petition and rule that the husband is the natural father of the minor child?
 
It first stated that "the short answer to this issue is yes, providing the court determined that it is in the best interest of the child" to deny the paternity petition. The court then concluded, however, that the circuit court failed to discuss what would be in Brock's best interest. Consequently, it held that, with respect to the paternity petition, the case must be remanded to determine the following issue:
 
"Whether Gus (a male individual who claims to be the father of a child born to a married couple) is entitled to petition the circuit court to determine whether said male individual is the biological father of the child when the child was conceived during the marriage of said married couple?"

   The intermediate appellate court thus reversed the circuit court's judgment with[***15] respect to the paternity action, and remanded the case to determine whether it was in the "best interest of Brock" to grant the paternity petition. The court set forth the following criteria for determining Brock's best interests, but expressly stated other factors could also apply:
 
"(1) the stability of the child's current home environment (in light of the aforementioned resolution of the various custody issues discussed above); (2) whether there is an ongoing family unit; (3) the child's physical, mental, and emotional needs; (4) Brock's past relationship with Gus; and (5) Brock's ability to ascertain genetic information for the purpose of medical treatment and genealogical history."

   The Court of Special Appeals also noted that if, on remand, the circuit court concludes that it is in the best interests of Brock to grant the paternity petition, the court should then "acknowledge the parties' stipulation that Gus is the natural father of Brock." Finally, the intermediate appellate court explained that if Gus is entitled to petition the court and is acknowledged to be Brock's biological father, the court must consider the issue of Gus's visitation rights. We granted certiorari to[***16] consider the significant issues raised in this case.

   [*523] II

   (A)

   The Paternity Action
 
Before us, Debbie and Gus assert that a circuit court has no authority to deny a paternity petition when: (1) the mother and biological father of an infant under the age of two jointly request a determination of paternity, (2) the paternity is supported by a blood test and the husband consents to the biological paternity, and (3) there is no marital integrity to protect because of the pending divorce action between the mother and husband. They also maintain that the "best interest of the child" standard, suggested by the Court of Special Appeals as the proper standard on remand, is inappropriate because fundamental interests, parental privacy and paternity, are involved. Moreover, they argue, even if the "best interest of the child" standard is utilized, the uncontroverted facts in this case preclude a court from ruling that Bruce is the "natural" father.

   Debbie and Gus next contend that a biological father should not be estopped from establishing his paternity when he filed a petition [**1082] to do so only six days after learning that he may be the father. They maintain that the denial of the paternity[***17] petition violated Gus's rights under both the federal and state constitutions. Specifically, they assert that the disparate treatment of men in general, and of Gus in the instant case, in the context of paternity litigation violates Maryland's Equal Rights Amendment, Article 46 of the Maryland Declaration of Rights. n8 Furthermore, it is argued that under the Fourteenth Amendment to the United States Constitution, Gus has a fundamental liberty interest in the care, custody, and management of his child. Finally, they aver that the right to conceive [*524] and to raise one's child is an essential right, which has been ignored in this case.

n8 Article 46 provides:

   "Equality of rights under the law shall not be abridged or denied because of sex."

   (B)

   The Custody Action
 
Debbie and Gus argue that the presumption that a minor child should be in the custody of the child's biological parents was not overcome in this case. They observe that only after a showing that the parents are unfit, or where exceptional circumstances render[***18] parental custody detrimental to the child, may a court grant custody to a non-parent. They maintain that the court erroneously found exceptional circumstances in this case. In particular, they claim that no testimony was presented that showed Brock had bonded to Bruce and thus there was no evidence that Brock would suffer any detriment if custody was awarded to Debbie. They also argue that Gus, even though he is the acknowledged biological father, has been treated as a "non-person" throughout this litigation, thus violating his right to due process.

   In addition, Debbie and Gus contend that both the trial court and intermediate appellate court based their respective custody determinations solely on the fact that Debbie was hostile to Bruce and contemptuous of the legal system. Consequently, they argue that the custody award was in actuality a punitive award against her for her actions, which is not a proper sanction. n9 

n9 They assert that the proper relief for her alleged actions would have been to grant a monetary award and an award of attorney's fees.

[***19]

   Finally, they maintain that by holding that Bruce "should be considered as the biological father of Brock," and thus recognized as Brock's "natural" father, the trial court in effect granted a judicial adoption, an act prohibited in this State. For these reasons, Debbie and Gus request that custody of Brock be awarded to Debbie.

   [*525] Bruce maintains that public policy precludes Debbie from attempting to establish that he is not the biological parent in order to further her self-interest in obtaining exclusive custody of Brock. Therefore, he contends that Debbie is estopped from asserting that Bruce is not Brock's biological father because she treated him, and represented him to the world, as the child's father for almost two years. Bruce further argues that Gus should be estopped from asserting any claim to Brock's custody and paternity.

   Bruce suggests that under the doctrine of unclean hands, Gus and Debbie's adultery should preclude Debbie from custody of Brock and preclude Gus from establishing his paternity. Therefore, Bruce contends that equity should be applied to prevent Gus, even though he may be the biological parent, from reducing or eliminating the rights of Bruce.

   According[***20] to Bruce, the circuit court properly used the "best interest" standard in resolving the custody issue. He maintains that the circuit and intermediate appellate courts both correctly and unambiguously concluded that exceptional circumstances existed in this case and thus the presumption that children should remain in the custody of their natural parents was overcome. He points to fourteen factors in the circuit court's opinion which formed the basis for a finding of exceptional circumstances, concluding therefrom that the grant of custody was appropriate.

   [**1083] Moreover, Bruce argues that Debbie is unfit as a parent and thus the court's decision to award custody to him was justified. In addition, he observes that a court's custody determination may not be reversed by an appellate court if the fact finding was not clearly erroneous and the ultimate custody decision was not a clear abuse of discretion.

   III

   Although we said in Monroe v. Monroe, 329 Md. 758, 767, 621 A.2d 898 (1993), that "establishing paternity is not a necessary factor to be considered when addressing the issue of custody," this case presents a unique situation. Therefore, [*526] unlike[***21] the circuit and intermediate appellate courts below, we believe that the paternity issue in the instant case must be resolved before we can address the difficult custody issue. In the absence of a paternity determination, we could not in the circumstances of this case properly analyze the custody dispute now before us. First to be determined in this regard is Brock's paternity.

   In Maryland, a child born to a married woman is presumed to be the offspring of the woman's husband. See Maryland Code (1991 Repl. Vol.) § 5-1028(c)(1) of the Family Law Article. n10 See also Monroe, supra, 329 Md. at 764-65 n.2. This presumption "may be rebutted by the testimony of a person other than the mother or her husband." § 5-1028(c)(2) of the Family Law Article. We have stated, however, "where the party against whom the paternity decree is sought, or as to whom the determination of paternity would be adverse, admits paternity, no further judicial proceedings to establish that fact are required." Monroe, supra , 329 Md. at 768 (citations omitted).

n10 This section states:
 
"There is a rebuttable presumption that the child is the legitimate child of the man to whom its mother was married at the time of conception."

[***22]

   The underlying facts in this case conclusively establish that Gus is Brock's biological father; indeed, Bruce conceded as much in his answer to Debbie's second motion for blood test, and in his trial testimony. n11 Therefore, it appears that no further proceedings with regard to paternity were necessary. The question remains whether the trial court had the authority to deny the paternity petition jointly filed by Debbie, Brock's biological mother, and Gus, Brock's biological father, when there was no marital integrity to protect. In addition, we must consider whether, as occurred here, a court has the power to declare that a third party non-parent is the "natural" father of a child. 

n11 During the trial, on cross-examination, Bruce was asked "do you now acknowledge [ ] that you are not the biological father of Brock?" and answered "yes."

   [*527] We agree with Bruce that the "best interest of the child" standard should be used in deciding whether to grant a paternity petition. In Turner v. Whisted, 327 Md. 106, 607 A.2d 935 (1992),[***23] we concluded that a trial court must consider the best interests of a child before granting a putative father's request for a blood test. Id. at 116-17. Similarly, in this case, the trial court, in deciding whether to grant the jointly filed paternity petition, should have considered what was in the best interests of Brock.

   While primarily considering the best interests of the child, the trial court should also have considered the interest that a biological parent, Gus in this case, has in his child. In Turner, supra, we explained:
 
"although an unwed father's biological link to his child does not, in and of itself, guarantee him a constitutional stake in his relationship with that child, such a link combined with a substantial parent-child relationship will do so. 'When an unwed father demonstrates a full commitment to the responsibilities of parenthood by "coming forward to participate in the rearing of his child," . . . his interest in personal contact with his child acquires substantial protection under the Due Process Clause.'"
 
327 Md. at 115-16[***24] (quoting Michael H. v. Gerald D., 491 U.S. 110, 142-43, 109 S. Ct. 2333, 105 L. Ed. 2d 91 [**1084] (1989) (Brennan, J., dissenting)). n12 On the other hand, "society has historically protected the integrity of the marital [*528] family unit from claims of paternity by other men." Turner, supra, 327 Md. at 114-15 (citing Michael H., supra).

 n12 See also Michael H., supra, 491 U.S. at 133 (Stevens, J., concurring) ("I therefore would not foreclose the possibility that a constitutionally protected relationship between a natural father and his child might exist in a case like this."); Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982) (the interest of parents in their relationship with their children is a fundamental liberty interest protected by the Fourteenth Amendment); Stanley v. Illinois, 405 U.S. 645, 651-52, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972) (a parent has a recognized right to the companionship, care, and custody of his or her minor children which he or she cannot be deprived without due process of law); In Re Jertrude O., 56 Md. App. 83, 98, 466 A.2d 885 (1983), cert. denied, 298 Md. 309, 469 A.2d 863 (1984); Montgomery County v. Sanders, 38 Md. App. 406, 414, 381 A.2d 1154 (1978). But Cf. Michael H., supra (plurality opinion).

[***25]

   The trial court should have considered and balanced these competing interests in deciding whether to grant the paternity petition. In Monroe, supra, 329 Md. at 772, we explained the balancing process, in the context of a custody dispute, as follows:
 
"Where there is disputed paternity, i.e., two men are competing for custody, Turner made clear that the putative father's motive for pursuing the action - [his] 'commitment to the responsibilities of parenthood,' Turner, 327 Md. at 117, and his interest in establishing a relationship with the child - must be balanced against the interest of the presumptive father, and his family, in maintaining an already formed familial relationship. Id. The best interest of the child, evidence as to which may come from the child's representative, informs the proper balance."

   In the instant case, the trial court failed to consider Gus's interests. In fact, the court concluded that: "[Gus's] rights are not paramount to Mr. Sider." We believe the court erred when it dismissed the paternity petition without sincerely considering Gus's interests in[***26] the matter. n13 

n13 Bruce argues that the constitutional protection afforded to Gus is not before us because Debbie and Gus failed to raise the issue at the trial level. See Md. Rule 8-131(a). Although Bruce is correct that the rule requires a party to raise an issue below to preserve it for appeal, we have occasionally used our discretion under the rule and permitted a party to raise an issue on appeal for the first time. See Atlantic Mutual v. Kenney, 323 Md. 116, 122, 591 A.2d 507 (1991); Crown Oil v. Glen, 320 Md. 546, 561, 578 A.2d 1184 (1990); Taub v. State , 296 Md. 439, 441-42, 463 A.2d 819 (1983). In any event, our decision today does not exclusively rely on the constitutional challenges set forth by Debbie and Gus.

   Had the court properly considered all the competing interests, the only conclusion it could have reached would have been to grant the paternity petition. [***27] Looking at the various interests, we conclude that (1) Gus certainly has a significant interest in establishing a relationship with Brock; (2) it does [*529] not appear that denying the petition would necessarily be in the best interests of Brock; and (3) perhaps most importantly, unlike many other custody cases including Michael H., supra, there is no family integrity to protect. Therefore, the court should have granted the paternity petition and declared that Gus is the father of Brock.

   Plainly, the court's decision to characterize Bruce as Brock's "natural father" was erroneous. In Lipiano v. Lipiano, 89 Md. App. 571, 598 A.2d 854 (1991), cert. denied, 325 Md. 620, 602 A.2d 710 (1992), the Court of Special Appeals addressed such an argument. There, the court said:
 
"Neither [the definition of natural father in § 5-310] nor the concept of 'Natural father' that it defines have anything to do with custody disputes, however. That section is part of the State adoption law. Section 5-311 generally provides that a child may not be adopted without the consent of his 'natural father' (and 'natural[***28] mother') unless their parental rights have previously been terminated. Section 5-310 defines the term 'Natural father' for that purpose."
 
Id. at 578 n.2.

   A court's attempt to declare a third party to be the "natural parent" of a child in a custody dispute is in effect a judicial adoption, which is not sanctioned in Maryland. [**1085] See Board of Education v. Browning, 333 Md. 281, 286, 635 A.2d 373 (1994) ("In Maryland, the general rule is that there can be no adoption except under and in accordance with a statute."). n14 Furthermore, the circuit court's decision had the effect of terminating Gus's parental relationship with Brock which generally can only be accomplished through a decree of adoption. n15

n14 Moreover, "Maryland law provides that adoption should not be granted over parental objection unless that course is clearly warranted." Bridges v. Nicely, 304 Md. 1, 7, 497 A.2d 142 (1985). See also § 5-312 of the Family Law Article (requiring a court to find clear and convincing evidence of a number of factors before granting an adoption to a third party when a parent affirmatively withholds his or her consent).

[***29] 

n15 In Carroll County v. Edelmann, 320 Md. 150, 176, 577 A.2d 14 (1990), we held that "a circuit court has no authority to terminate a parental relationship other than through a decree of adoption or guardianship."

[*530]

   Consequently, a court cannot judicially declare that Bruce is Brock's "natural" father. As stated previously, the court should have granted the joint paternity petition and ruled that Gus was Brock's father. After establishing that Gus is Brock's father and that Bruce is a third party, a court can properly address the custody issue.

   IV

   This case involves a custody contest in which the biological mother and father advocate awarding custody to the mother, while a third party, Bruce, seeks custody for himself. Custody disputes between parents and third parties are governed by the principles set forth in Ross v. Hoffman, 280 Md. 172, 372 A.2d 582 (1977); we there said:
 
"'Where parents claim the custody of a child, there is a prima facie presumption that the child's welfare will be best subserved[***30] in the care and custody of its parents rather than in the custody of others, and the burden is then cast upon the parties opposing them to show the contrary.' n16 

n16 "We set out the rationale of this presumption in Melton v. Connolly, 219 Md. 184, 188, 148 A.2d 387 (1959) in these words:
 
"'Normally a parent is to be preferred to others in determining custody, largely because the affection of a parent for a child is as strong and potent as any that springs from human relations and leads to desire and efforts to care properly for and raise the child, which are greater than another would be likely to display.'"
 
(footnote in original).

 
"We have indicated how the presumption may be rebutted. In Ross v. Pick, [199 Md. 341, 86 A.2d 463 (1952)], we pointed out that the ordinary entitlement of parents to the custody of their minor children by the natural law, the common law, and the statute, is not an absolute one and declared[***31] that the right 'may be forfeited where it appears [*531] that any parent is unfit to have custody of a child, or where some exceptional circumstances render such custody detrimental to the best interests of the child.' (citations omitted).

   "To recapitulate: the best interest of the child standard is always determinative in child custody disputes. When the dispute is between a biological parent and a third party, it is presumed that the child's best interest is subserved by custody in the parent. That presumption is overcome and such custody will be denied if (a) the parent is unfit to have custody, or (b) if there are such exceptional circumstances as make such custody detrimental to the best interest of the child. Therefore, in parent-third party disputes over custody, it is only upon a determination by the equity court that the parent is unfit or that there are exceptional circumstances which make custody in the parent detrimental to the best interest of the child, that the court need inquire into the best interest of the child in order to make a proper custodial disposition."
 
 Id. at 178-79 (quoting in part Ross v. Pick, supra, 199 Md. at 351).[***32]

   In the instant case, the trial court's opinion reveals that it primarily treated Bruce as a parent because it concluded that Debbie was estopped from asserting that Bruce was not Brock's father. The court also found in the alternative that, even if Bruce was treated as a third party, exceptional [**1086]circumstances existed which made custody in Debbie detrimental to the best interests of Brock. The court, however, failed to explicitly state what exceptional circumstances it was relying upon. Because he did not detail his findings with regard to exceptional circumstances, the trial judge must reevaluate his custody decision. The trial judge appears to have concluded that Debbie was not unfit, undoubtedly taking into account that a finding of adultery does not in any way create a presumption of unfitness to have custody of one's own child. See Davis v. Davis, 280 Md. 119, 127, 372 A.2d 231, cert. denied, 434 U.S. 939, 98 S. Ct. 430, 54 L. Ed. 2d 299 (1977).

   [*532] On remand, the circuit court should consider the following factors set forth in Ross v. Hoffman, supra,[***33] and any other relevant factors, in determining whether exceptional circumstances exist:
 
(1) the length of time the child has been away from the biological parent;
 
(2) the age of the child when care was assumed by the third party;
 
(3) the possible emotional effect on the child of a change of custody;
 
(4) the period of time which elapsed before the parent sought to reclaim the child;
 
(5) the nature and strength of the ties between the child and the third party custodian;
 
(6) the intensity and genuineness of the parent's desire to have the child; and
 
(7) the stability and certainty as to the child's future in the custody of the parent.

   We listed other important factors in Turner, supra:
 
"the stability of the child's current home environment, whether there is an ongoing family unit, and the child's physical, mental, and emotional needs. An important consideration is the child's past relationship with the putative father. (citation omitted). Finally, other factors might even include the child's ability to ascertain genetic information for the purpose of medical treatment and genealogical history."
 
327 Md. at 116-17. We[***34] also stated in Monroe, supra:
 
"Whether the child has established a relationship with a third party sufficient to constitute exceptional circumstances, rebutting the presumption of custody in the biological parent, is not dependent on its development during the absence of the biological parent. A relationship resulting in bonding and psychological dependence upon a person without biological connection can develop during an ongoing [*533] biological parent/child relationship. Particularly is this true when the relationship is developed in the context of a family unit and is fostered, facilitated and, for most of the child's life, encouraged by the biological parent. That the relationships, one with a known biological parent and the other with an acknowledged, though, in fact, non-biological, parent, progress at the same time, does not render either less viable."
 
329 Md. at 775-76. We would further note that it is ordinarily in the best interest of a child to be raised with his or her siblings. See Hild v. Hild, 221 Md. 349, 359, 157 A.2d 442 (1960); Melton v. Connolly, supra, 219 Md. at 190; [***35]Hadick v. Hadick, 90 Md. App. 740, 748, 603 A.2d 915 (1992).

   In addition, factors that are specifically relevant to this case include (1) the position of the biological father, Gus; (2) how Brock has fared in Bruce's custody during the past two years; and (3) Debbie's ability to care for Brock during the daytime, see DeGrange v. Kline, 254 Md. 240, 243, 254 A.2d 353 (1969).
 
We reiterate that the appropriate standard in a parent-third party contested custody case, after taking into account the presumption that a child is better off with his or her natural parents, is the best interests of the child. Moreover, we emphasize:
 
"that in any child custody case, the paramount concern is the best interest of the child. As Judge Orth pointed out for the Court in Ross v. Hoffman, [supra], we have variously characterized this standard as being 'of transcendent importance' and the 'sole question.' The best interest of the child is therefore not considered as one [**1087] of many factors, but as the objective to which virtually all other factors speak."
 
Taylor v. Taylor, 306 Md. 290, 303, 508 A.2d 964 (1986).[***36] See also Monroe, supra, 329 Md. at 769 ("When a court is called upon to resolve the issue of which of the parties to a child custody action should be awarded custody of a child, the critical and overriding consideration is 'what is in the best interest of the child?'"). [*534] Our decision today does not offend the rule that an appellate court should give due deference to a trial court's custody decision. We have explained that the proper standard of review is as follows:
 
"When the appellate court scrutinizes factual findings, the clearly erroneous standard of [Md. Rule 8-131(c)] applies. If it appears that the chancellor erred as to matters of law, further proceedings in the trial court will ordinarily be required unless the error is determined to be harmless. Finally, when the appellate court views the ultimate conclusion of the chancellor founded upon sound legal principles and based upon factual findings that are not clearly erroneous, the chancellor's decision should be disturbed only if there has been a clear abuse of discretion."
 
Davis v. Davis, supra, 280 Md. at 125-26. See also Domingues v. Johnson, 323 Md. 486, 491-92, 593 A.2d 1133 (1991).[***37]

   In the instant case, we conclude that the trial court clearly abused its discretion when it denied the paternity petition and resolved the custody dispute without taking into consideration the biological father, Gus.

    JUDGMENT OF THE COURT OF SPECIAL APPEALS VACATED; CASE REMANDED TO THAT COURT WITH DIRECTIONS TO REMAND THE CASE TO THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. COSTS TO ABIDE THE RESULT. 

CONCURBY: ELDRIDGE

CONCUR:  
Concurring Opinion by Eldridge, J.
Eldridge, J., concurring:

   I fully concur in the Court's judgment. Furthermore, I join the Court's opinion except for that portion of Part III which relies on the majority opinion in Turner v. Whisted, 327 Md. 106, 607 A.2d 935 (1992). I continue to adhere to the views expressed in my concurring and dissenting opinion in Turner v. Whisted , supra, 327 Md. at 117-128, 607 A.2d at 941-946, [*535] and my concurring opinion in Monroe v. Monroe, 329 Md. 758, 778-783, 621 A.2d 898, 907-910 (1993).  

SANDRA A. HOLMAN v. KELLY CATERING, INC. 
No. 100, September Term, 1993
 
COURT OF APPEALS OF MARYLAND
 
334 Md. 480; 639 A.2d 701; 1994 Md. LEXIS 55
 
   April  15, 1994, Filed

   SUBSEQUENT HISTORY: As Corrected April 25, 1994.

PRIOR HISTORY: Certiorari to the Court of Special Appeals (Circuit Court for  Anne Arundel  County). H. Chester Goudy, Jr., JUDGE

DISPOSITION: [***1] JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED. COSTS TO BE PAID BY THE PETITIONER.

CORE TERMS:  presumed, burden of proof, prima facie, independent contractor, workers' compensation, claimant, requested instruction, burden of proving, common law, preponderance, arbitration, admissible, appealing, disability, juror, jury instruction, jury trial, instructions actually, question of fact, finder of fact, common sense, new trial, meaningless, predecessor, correctly, expertise, modify, wished, presumption of correctness, challenging

COUNSEL: ARGUED BY Timothy F. Talbot (Harvey S. Wasserman, Joel L. Katz, P.A., all on brief) all of Annapolis, MD. AMICUS CURIAE: Evelyn O. Cannon and James Himes, Assistant Attorneys General (J. Joseph Curran, Jr., Attorney General, all on brief) all of Baltimore, MD, for Uninsured Employers' Fund, FOR PETITIONER.
 
ARGUED BY Richard F. Walsh (Northrop, Walsh, Radcliff, Schiszik & Becker, all on brief) all of Bowie, MD, FOR RESPONDENT.

JUDGES: Murphy, C.J., Eldridge, Rodowsky, Chasanow, Karwacki, Bell, Raker, JJ.

OPINIONBY: CHASANOW

OPINION: [*481]
 
[**702] Opinion by Chasanow, J.

   Eldridge, J., dissents.

   On September 26, 1989, Sandra Ann Holman filed a claim for workers' compensation benefits based on various bodily injuries she sustained in an accident while driving a catering truck for Kelly Catering, Inc. Kelly contested this claim and contended that Holman was precluded from claiming benefits because she was an independent contractor rather than an [*482] employee. A hearing on Holman's claim was held before the Maryland Workers' Compensation Commission on May 14, 1990. Based on the testimony at that hearing, the Commission decided in Kelly's favor and found that Holman should be denied benefits because she was not an employee of the catering service.

   Holman appealed this adverse decision to the Circuit Court for Anne Arundel County, and requested a jury trial. Prior to trial, Holman moved that the court exclude any reference to the Commission's decision in favor of Kelly. Kelly objected and contended that the legislature's requirement that the "decision of the Commission is[***2] presumed to be prima facie correct" would be pointless if the jury could not be told of the Commission's decision. See Maryland Code (1991 Repl. Vol.), Labor and Employment Article, n1 § 9-745(b)(1). Notwithstanding Kelly's objection, the trial court granted Holman's motion and trial began. Prior to opening statements, the judge entertained further discussion on whether the jury should be informed of the Commission's decision, reiterated his ruling that the jury should not, and granted Kelly's standing objection to that ruling.

n1 Unless otherwise indicated, all references shall be to Maryland Code (1991 Repl. Vol.), Labor and Employment Article.

   Following presentation of the evidence, Kelly directed the judge's attention to Maryland Civil Pattern Jury Instruction 30:3, which explains that the case "has been heard and decided by the [Commission]," instructs on what the Commission decided, and informs the jury that "[the] decision is presumed to be correct." Maryland Civil Pattern [*483] Jury Instructions 30:3, at 653 (2d [***3]ed. 1984). n2 See also Maryland Civil Pattern Jury Instructions 30:3, at 644 (3d ed. 1993). In accordance with his earlier ruling, however, the judge instructed the jury without mentioning the Commission's decision:
 
"The posture of this case [is that] under the law the claimant in this case is presumed to be an independent contractor. [**703] She is not presumed to be an employee. The claimant in the case has the burden of proving her case to the extent that she is an employee. The claimant asserts that claim, that she is an employee, and has the burden of proving it by what we call [a] preponderance of the evidence. To prove a preponderance of the evidence ... means to prove that something is more likely so than not so. In other words, a preponderance of the evidence means such evidence as when considered and compared with that opposed to it, has more convincing force and produces in your mind a belief that is more likely true than not true." (Emphasis added).

n2 In its entirety, Maryland Civil Pattern Jury Instruction 30:3 reads as follows:
 
 "This case has been heard and decided by the Workmen's Compensation Commission. The [employee is] [employer and insurer are] appealing the decision of the Commission.

   The Commission determined that  (insert findings) . This decision is presumed to be correct. The [employee has] [employer and insurer have] the burden of proving by a preponderance of the evidence that the decision is wrong. In meeting this burden the [employee] [employer and insurer] may rely on the same, less or more evidence than was presented to the Commission."
 
Maryland Civil Pattern Jury Instructions 30:3, at 653 (2d ed. 1984).

[***4]

   The jury returned a verdict that Holman was an employee of Kelly. Kelly appealed to the Court of Special Appeals, which reversed the judgment of the circuit court and remanded the case to that court for a new trial. See Kelly Catering, Inc. v. Holman, 96 Md. App. 256, 624 A.2d 1300 (1993). One of the bases for reversal was the trial court's failure to instruct the jury on the Commission's decision which, according to the intermediate appellate court, was "a necessary and proper component of the jury instructions in cases such as this." Kelly Catering, 96 Md. App. at 275, 624 A.2d at 1309.

   We granted certiorari in this case to consider the role of the Workers' Compensation Commission's decision in a circuit court appellate proceeding where a jury trial has been requested. n3 [*484] For the reasons discussed below, we shall affirm the Court of Special Appeals' decision.

n3 The specific questions raised by the appellant in her petition for a writ of certiorari are as follows:
 
"1. In an appeal from the Workers' Compensation Commission to the Circuit Court, is the decision of the Workers' Compensation Commission admissible as evidence at the Circuit Court jury trial or is it simply a means of shifting the burden of proof?

   2. Whether Respondent was entitled to Maryland Pattern Jury Instruction 30:3?"

[***5]

   I.

   Pursuant to § 9-737 of the Labor and Employment Article, a party aggrieved by the decision of the Commission may appeal to the circuit court. Section 9-745 provides the procedure for conducting appellate proceedings in the circuit court. Under § 9-745(d), the appealing party may request a trial by jury, as Holman did, to which "any question of fact involved in the case" is submitted. Although not expressly specified, we have recognized that the statute "contemplates a trial which essentially is de novo." Smith v. State Roads Comm., 240 Md. 525, 533, 214 A.2d 792, 796 (1965). See also Richardson v. Home Mutual, 235 Md. 252, 255, 201 A.2d 340, 342 (1964)(noting that the statute "would seem to contemplate a trial which essentially is de novo ..."); General Motors Corp. v. Bark, 79 Md. App. 68, 74, 555 A.2d 542, 545 (1989)(acknowledging that the "availability of a trial de novo at the circuit court level is not to be doubted, even if its statutory pedigree is more implicit than explicit").

   The present dispute primarily concerns the scope [***6] of § 9-745(b), which addresses the burden of proof and the prima facie correctness of the Commission's decision in a circuit court appellate proceeding. Section 9-745(b) provides as follows:
 
"(b) Presumptions and burden of proof. -- In each court proceeding under this title:

   (1) the decision of the Commission is presumed to be prima facie correct; and 

[*485]

   (2) the party challenging the decision has the burden of proof." (Emphasis added).

   Holman and Kelly disagree over the legislature's intention behind this provision. Kelly contends that part of the statute's purpose is to bring the decision of the Commission to the jury's attention. Therefore, Kelly argues, the trial judge's failure to inform "the jury of the Commission[']s decision and the weight to be attached to that decision" was erroneous. To the contrary, Holman contends the statute merely envisions that "the Commission's decision is ... the means used for shifting the burden of proof at trial," and in no way requires that the decision be presented to the jury.

   We begin our analysis of § 9-745(b) by reiterating that "our inquiry into legislative [**704] intent begins with the words of the statute ...." Harris v. State, 331 Md. 137, 145, 626 A.2d 946, 950 (1993).[***7] See also State v. Bricker, 321 Md. 86, 92, 581 A.2d 9, 12 (1990)("When interpreting a statute, the starting point is the wording of the relevant provisions."). Our examination of such words is guided by the principle that we should read "pertinent parts of the legislative language together, giving effect to all of those parts if we can, and rendering no part of the law surplusage." Sinai Hosp. v. Dep't of Employment, 309 Md. 28, 40, 522 A.2d 382, 388 (1987).

   In § 9-745(b), the legislature has specified that the decision of the Commission is (1) "presumed to be prima facie correct," and (2) "the party challenging the decision has the burden of proof." These are two distinct yet connected requirements. See Comptroller v. Fairchild Industries, 303 Md. 280, 285-86, 493 A.2d 341, 343-44 (1985)("It is ordinarily presumed that the word 'and' should be interpreted according to its plain and ordinary meaning and that it is not interchangeable with the word 'or.'"); 1A Sutherland Stat. Const. § 21.14, at 129 (5th ed. 1993)("Where two or more requirements[***8] are provided in a section and it is the legislative intent that all of the requirements must be fulfilled in order to comply with the statute, the conjunctive 'and' should be used."). Holman maintains, however, that both provisions [*486] perform the same function and simply shift the burden of proof in an appeal. Notwithstanding Holman's assertion, we believe that, by including both of these provisions, the legislature intended that the Commission's decision have a greater effect than merely placing the burden of proof on the party who challenges that decision.

   Section 9-745(b)(2) already explicitly shifts the burden of proof to the appealing party. Thus, if the only effect of § 9-745(b)(1)'s presumption of prima facie correctness is to place the burden of proof on the party appealing the decision, this provision would be superfluous in light of subsection (b)(2). On many occasions this Court has recognized the "'fundamental rule of statutory construction ... that no word, clause, sentence or phrase should be rendered surplusage, superfluous, meaningless, or nugatory.'" In re Wallace W., 333 Md. 186, 192, 634 A.2d 53, 56-57 (1993)(quoting[***9] Md. Port Adm. v. Brawner Contracting Co., 303 Md. 44, 60, 492 A.2d 281, 289 (1985)). See also Management Personnel Serv. v. Sandefur, 300 Md. 332, 341, 478 A.2d 310, 315 (1984); City of Baltimore v. Hackley, 300 Md. 277, 283, 477 A.2d 1174, 1177 (1984). In light of this principle, we reject Holman's contention because we are unwilling to deem § 9-745(b)(1)'s presumption of prima facie correctness as mere surplusage to § 9-745(b)(2).
 
In order to effectuate the legislature's mandate that the Commission's "decision ... is presumed to be prima facie correct," the jury should know what decision is presumed correct and who made that decision. See Kelly Catering, 96 Md. App. at 272, 624 A.2d at 1308 ("It seems clear enough from the language of § 9-745, inter alia, that the legislature wanted the finder of fact to be aware that the presumption [that Holman is an independent contractor] resulted from the Commission's decision." (emphasis in original)); Alexander v. Montgomery County, 87 Md. App. 275, 287, 589 A.2d 563, 569 (1991)[***10] (writing for the intermediate appellate court, Judge Robert M. Bell reasoned that, "because [the Commission's decision] is presumed correct, that decision had to be presented to the jury"). In addition, if the jurors are told that the decision is prima facie correct, they obviously will consider it [*487] in weighing whether the party challenging the Commission's decision has met its burden of proof by a preponderance of the evidence. See Morris v. Christopher, 255 Md. 372, 378-81, 258 A.2d 172, 176-77 (1969)(discussing preponderance-of-the-evidence standard in workers' compensation appeals).

   Support for our conclusion is also found in the rule that, when "construing statutes in order to ascertain the legislature's intent, we do not read particular language in isolation or out of context. We construe statutory language in light of the legislature's general purpose and in the context of the statute as a whole." Forbes v. Harleysville Mutual, 322 Md. 689, 696-97, 589 A.2d 944, 948 (1991). In Newell v. Richards, 323 Md. 717, 594 A.2d 1152 (1991), we stated[***11] that the Workers' [**705] Compensation Commission is "an administrative agency and was created specifically to develop an expertise in its field." 323 Md. at 732, 594 A.2d at 1159-60 (emphasis added). See also Kelly Catering, 96 Md. App. at 271-72, 624 A.2d at 1307 ("It is, of course, beyond dispute--and therefore rarely stated--that the [Commission] possesses considerable expertise in interpreting and applying the Workers' Compensation statutes...."). In light of the Commission's "expertise," we fail to see why the legislature would want to shield the jury from the fact that the Commission rendered the decision that is presumed correct.

   Moreover, when construing a statute, we generally avoid attributing to the legislature a construction that is "unreasonable, illogical or inconsistent with common sense." Fairchild Industries, 303 Md. at 288, 493 A.2d at 345. See also Richmond v. State, 326 Md. 257, 262, 604 A.2d 483, 486 (1992)(noting that this Court approaches the analysis of statutory language from a "'commonsensical'" [***12]perspective); State v. Intercontinental, Ltd., 302 Md. 132, 137, 486 A.2d 174, 176 (1985)(stating that the Court seeks to adopt a construction which avoids results that are illogical, unreasonable, or inconsistent with common sense). If we concluded that the legislature wanted to keep the jury in the dark about the fact that the Commission previously heard and decided the case, this would require an unreasonable construction and could potentially [*488] mislead juries. Kelly observes that, by informing the jury in general terms that the law presumes Holman is an independent contractor, the jury might
 
"feel this was an unfair advantage the law provides to the Company. Simply telling the jury there is a presumption that a person is an independent contractor has no meaning and runs counter to the common sense and experience of most people, since the vast majority of people are employees....

   If, however, a person or juror was told that the presumption arose from a hearing in front of the Commission, where all parties attended, and the Commission decided, based on all the evidence, that [Holman] was an independent contractor, the jury would[***13] ... understand the reason for the presumption."
 
The Court of Special Appeals also noted that "explaining to a jury that the presumption arose from a previous proceeding gives a meaningful context to the presumption." Kelly Catering, 96 Md. App. at 272, 624 A.2d at 1308 (emphasis in original).

   In various other scenarios, the failure to provide the jury with a "meaningful context" for a presumption would also appear contrary to common sense. For instance, in a partial disability case where the Commission found a 5% disability, it would be nonsensical to tell the jury without further explanation that an employer has the burden of proving the claimant is not 5% disabled. Cf. Baughman Co. v. Mellott, 216 Md. 278, 285-86, 139 A.2d 852, 856 (1958)(noting, in a case where the Commission found a 5% disability and the jury reversed and found a 60% disability, that "the issue of the extent of permanent partial disability was one which was properly submitted to the jury with a proper instruction (which was given) as to the presumption in favor of the finding of the Commission"); Cabell Con. Blk. Co. v. Yarborough, 192 Md. 360, 64 A.2d 292 (1949).[***14] Kelly points to several other "legal presumptions" that would be meaningless unless the jury was told that the presumption resulted from the decision of the Workers' Compensation Commission. For example, it would be meaningless [*489] to tell a jury that "the law presumes" an employee is 100% permanently disabled or that 35% of an employee's disability is related to his work injury and 65% is unrelated to his work injury. We do not believe the legislature wished for juries to apply presumptions that might appear contrary to common experience in the absence of an understanding as to how those presumptions arose.

   Holman also relies heavily on the provisions governing health claims arbitration proceedings to support her contention that the jury should not be notified of the Commission's decision. With respect to judicial review of such proceedings, the Maryland Code provides as follows:
 
"(d) Admissibility of award; presumption of correctness. -- Unless vacated by the [**706] court pursuant to subsection (c), the unmodified arbitration award is admissible as evidence in the judicial proceeding. The award shall be presumed to be correct, and the burden is on the party rejecting it to prove [***15]that it is not correct." (Emphasis added).
 
Md. Code (1974, 1989 Repl. Vol., 1993 Cum. Supp.), Cts. & Jud. Proc. Art., § 3-2A-06(d). Because § 3-2A-06(d) expressly authorizes admission of the arbitration award in an appeal from the Health Claims Arbitration Office (HCAO), Holman reasons that the legislature would have used similar language in the workers' compensation statute if it intended for the decision of the Commission to be admitted into evidence. We disagree.

   As this Court noted in Newell v. Richards,
 
"workers' compensation is a statutory remedy. The legislation that establishes the burden of proof on appeal was written on a clean slate. There were no burdens and presumptions; indeed, there was no cause of action for workers' compensation prior to the workers' compensation statute."
 
323 Md. at 732, 594 A.2d at 1160. Writing on this "clean slate," the legislature provided that the party appealing a decision of the Commission has the burden of proof, and the decision is presumed prima facie correct. See § 9-745(b). [*490]

   In a health claims arbitration appeal, however, the common law burden of proof remains with the plaintiff. [***16] As we stated in Newell, although the award is "admissible in evidence and is presumed correct, [it] does not have the additional effect of shifting the common law burden of proof." Newell, 323 Md. at 729, 594 A.2d at 1158. Thus, in a health claims arbitration appeal, a plaintiff who claims a physician was negligent still has the traditional common law burden of proof, but the HCAO decision is expressly admissible in evidence. If the HCAO found in favor of the plaintiff, that decision is presumed correct and is evidence which aids the plaintiff in satisfying the common law burden of proof. See Newell, 323 Md. at 733-34, 594 A.2d at 1160. On the other hand, if the HCAO found in favor of the physician, then the plaintiff has a double hurdle to overcome -- the traditional common law burden of proof and the presumption of correctness of the award in favor of the physician. See id.

   We believe the legislature wished to make it absolutely clear that, in a health claims arbitration appeal, the award should be admitted into evidence to assist a plaintiff who prevailed below in meeting the traditional[***17] common law burden of proof on appeal. Simply because the legislature wished to preclude any arguable ambiguity over whether an award is admissible in a health claims arbitration appeal, however, does not alter our view of the legislature's intent behind the workers' compensation statute. Sound statutory interpretation strongly indicates that § 9-745(b) requires the jury to be informed of the decision of the Commission notwithstanding the fact that the statute does not expressly say so. The mere fact that a later statute (i.e., health claims arbitration) is more explicit than a prior one (i.e., workers' compensation) is not dispositive in our construction of the earlier statute. n4 Thus, notwithstanding Holman's reliance on the health claims arbitration [*491] statute, we conclude that, by specifying the Commission's decision is "presumed to be prima facie correct," the legislature intended for the jury to be instructed as to what decision is presumed correct and who rendered that decision. n5 

n4 The language creating the presumption that the Workers' Compensation Commission's decision is prima facie correct originated in 1914, see Chapter 800 of the Acts of 1914, whereas the health claims arbitration provision providing for the admissibility of such a decision arose in 1976. See Chapter 235 of the Acts of 1976.

[***18] 

n5 Although we agree with Kelly's contention that the jury should be instructed on the Commission's decision, we take issue with part of Kelly's reasoning in support of that contention. Kelly asserts that, pursuant to Md. Code (1991 Repl. Vol.), Labor & Employment Art., §§ 9-745(c) & (e), "it is fundamental that the jury cannot deliberate and confirm, reverse or modify without having the decision before it." (Emphasis added). Subsections (c) and (e), however, do not address the duties of a jury but rather delineate the duties of a court. See § 9-745(c)(stating that "the court shall determine whether the Commission ... justly considered all of the facts [or] exceeded the powers granted to it under this title [or] misconstrued the law and facts applicable in the case decided"); § 9-745(e)(stating that "if the court determines that the Commission acted within its powers and correctly construed the law and facts, the court shall confirm the decision of the Commission," and "if the court determines that the Commission did not act within its powers or did not correctly construe the law and facts, the court shall reverse or modify the decision or remand the case to the Commission for further proceedings"). The function of the jury is dealt with in subsection (d) as follows: "On a motion by any party filed with the clerk of the court in accordance with the practice in civil cases, the court shall submit to a jury any question of fact involved in the case." Thus, where a party requests an appeal before a jury, the jury is limited to resolving any question of fact, but does not determine whether the Commission correctly construed the law. See Federal Tin Co. v. Hoffman, 164 Md. 431, 436, 165 A. 323, 325 (1933) ("It is for the court and not the jury to affirm, reverse, or modify the ruling of the commission appealed from."); Balto. Publishing Co. v. Hendricks, 156 Md. 74, 79, 143 A. 654, 655 (1928)("It is for the court and not the jury to decide whether the commission 'has exceeded the powers granted it by the article, whether it has misconstrued the law and facts applicable to the case decided.'" (citation omitted)); Schiller v. B. & O. R. R. Co., 137 Md. 235, 242, 112 A. 272, 275 (1920) (explaining that, although the statute affords a jury trial, it does so "in such a way as to enable the court to apply the law to the facts after they are found by the jury").

[***19]

   [**707] Holman asserts, and Kelly agrees, that "the instant case presents this Court with an opportunity to decide for the first time whether or not a decision rendered by the [Commission] has any evidentiary value to [a] judge or jury in an appeal from a workers' compensation proceeding." Despite this assertion, our prior decisions have indicated that the jury should be instructed on the Commission's decision so the jurors may consider it in reaching their verdict. [*492]

   Over seventy-five years ago in Coastwise Shipbldg. Co. v. Tolson, 132 Md. 203, 206, 103 A. 478, 479 (1918), this Court upheld an instruction which informed the jury of the existence of the State Industrial Accident Commission's decision. n6 The instruction contained the following language: "'But in Court proceedings, upon an appeal from a decision of the Commission, the decision is to be held prima facie correct, and the burden of proof is upon the party attacking it.'" Tolson, 132 Md. at 205, 103 A. at 478-79. In analyzing this instruction, the Court pointed to the predecessor of § 9-745(b), which provided that on appeal "the decision[***20] of the Commission shall be prima facie correct and the burden of proof shall be upon the party attacking the same." Chapter 800 of the Acts of 1914, Section 55, at 1460. The Tolson Court noted that this provision is "literally taken as expressed" and, therefore, the jury instruction given by the court "correctly stated the law." 132 Md. at 206, 103 A. at 479. Tolson's interpretation of § 9-745(b)'s predecessor clearly refutes Holman's assertion that a trial judge must avoid mentioning that the presumption (i.e., Holman is an independent contractor) resulted from the Commission's prior determination.

n6 The State Industrial Accident Commission was the predecessor of the Workmen's Compensation Commission, which is now the State Workers' Compensation Commission. See Md. Code (1957, 1985 Repl. Vol.), Art. 101, § 1 (abolishing the State Industrial Accident Commission and creating the Workmen's Compensation Commission); Md. Code (1991 Repl. Vol.), Labor & Employment Art., § 9-301 (establishing the State Workers' Compensation Commission).

[***21]

   On numerous occasions since Tolson, this Court has approved of instructions that explicitly told the jury that the decision of the Commission is presumed prima facie correct. For instance, in Larkin v. Smith, 183 Md. 274, 37 A.2d 340 (1944), we accepted the propriety of an instruction that apprised the jury of the Commission's prior decision. The issue in Larkin was whether or not the claimant was wholly dependent upon her child who died from injuries sustained in the [*493] course of his employment. We summarized the trial court's instructions as follows:
 
"The trial court instructed the jury that the State Industrial Accident Commission had decided that the appellee was wholly dependent upon the decedent at the time of his death, that decision was prima facie correct, and the burden of proof was on the appellants to show by a fair preponderance of affirmative evidence that the appellee was not [wholly] dependent."
 
183 Md. at 278, 37 A.2d at 341-42. The trial judge also reminded the jury, "'you must always remember ... that the findings of the Commission that this woman was a total[***22] dependent [are] prima facie correct.'" Larkin, 183 Md. at 279, 37 A.2d at 342. See also [**708] Morris, 255 Md. at 378-81, 258 A.2d at 176-77 (rejecting appellant's contention, which was basically the same as Holman's contention in the instant case, i.e., "that [an] instruction gave the Commission's decision a greater weight than the statutes and the decisions of this Court intend that it should have"); Unger & Mahon v. Lidston, 177 Md. 265, 270, 9 A.2d 604, 606-07 (1939)(finding no error in an instruction that informed the jury "the decision of the State [Industrial] Accident Commission was prima facie correct").

   Thus, Maryland case law demonstrates that the commonly accepted understanding of § 9-745(b) is that jury instructions should refer to the fact that the Commission rendered a prior decision, and that such a decision is prima facie correct. The bar has also accepted this understanding, as is evident from suggested instructions in several practitioners' texts which refer to the Commission's decision and its relevant determinations. [***23] See, e.g., Maryland Civil Pattern Jury Instructions 30:3, at 644 (3d ed. 1993); Rosalyn B. Bell, Maryland Civil Jury Instructions and Commentary § 41.02, at 960 (1993); Theodore B. Cornblatt et al., Workers' Compensation Manual § 3.25, at 3-15 (7th ed. 1992). See also Maurice J. Pressman, Workmen's Compensation in Maryland § 4-26, at 441 (2d ed. 1977)(commenting that the Commission's decision is presumed correct and "may be offered in evidence"). We believe [*494] this "commonly accepted understanding" appropriately reflects the law as intended by the legislature.

   We point out that trial judges should not unduly emphasize the decision of the Commission. As lucidly explained by the Court of Special Appeals,
 
"while the provisions of the Workers' Compensation statute were intended to preserve the right to a de novo trial, it is equally true that the legislature intended that the finder of fact be made aware of [the] WCC's hearing and decision that predated the trial. See LE § 9-745. Indeed, as we have suggested previously, the existence of the WCC's decision is a necessary and proper component of the jury instructions in cases such as this. See Giant Food v. Coffey, 52 Md. App. 572, 579-80, 451 A.2d 151[***24] [, 155-56] (1982), cert. denied, 295 Md. 283 (1983). The trial court erred by determining otherwise. We warn, however, that there is a fine line that must be tread here. On the one hand, we hold that a judge has the duty to instruct a jury as to the proceedings of the Commission below, and of the presumption of correctness accorded to the Commission's decision. On the other hand, we also hold that the right to a trial de novo is, by our decision today, absolutely preserved. In implementing these two holdings, trial judges, in instructing juries, must carefully avoid suggesting that the Commission's decision is binding upon the finder of fact. It is not. The Commission's decision is merely evidence of a particular fact (or facts) which, as with all evidence, the jury is free to disregard if it finds it to be incredible." (Emphasis in original)(footnotes omitted).
 
Kelly Catering, 96 Md. App. at 275, 624 A.2d at 1309.
 
   Whether the judge should admit a copy of the Commission's actual decision into evidence and allow the jury to examine it is yet another question. Ordinarily, we think it would be sufficient[***25] for a trial judge to simply tell the jury what the Commission decided, i.e., "the Maryland Workers' Compensation Commission determined that Holman was an independent [*495] contractor," and explain that the Commission's determination is presumed prima facie correct. In addition, if the Commission's decision contains extraneous or harmful matter, or the prejudice outweighs its probative value, a judge obviously should refuse to provide a copy to the jury. See Hunt v. State, 312 Md. 494, 504, 540 A.2d 1125, 1130 (1988)("As a general rule, the trial judge may exclude relevant evidence if the danger of unfair prejudice substantially outweighs its probative value."). See also Maryland Rule 5-403 (effective July 1, 1994). In such cases, a judge should instruct the jury only on the Commission's relevant findings, and decline to provide a copy of its decision to the jurors.

   II.

   The circuit court's judgment that Holman is entitled to benefits must be reversed [**709] because that court erred by refusing to give the jury instruction requested by Kelly. In Wegad v. Howard Street Jewelers, 326 Md. 409, 605 A.2d 123 (1992),[***26] this Court explained the following with respect to whether a judge has properly denied a party's requested jury instruction:
 
"Under Maryland Rule 2-520(c), the court 'need not grant a requested instruction if the matter is fairly covered by instructions actually given.' See State Roads Comm'n v. Parker, 275 Md. 651, 688, 344 A.2d 109, 129 (1975)(If the substance of the requested instruction is fully and fairly covered by the instruction given, there is 'no requirement on [the court's] part to grant any specific requested instruction submitted by [a party] -- assuming arguendo -- that such proffered instruction would have, with precision, submitted to the jury a correct proposition of law.'). Consequently, to rule upon the propriety of denying a requested jury instruction, a reviewing court must determine whether the requested instruction was a correct exposition of the law, whether that law was applicable in light of the evidence before the jury, and finally whether the substance of the requested [*496] instruction was fairly covered by the instruction actually given."
 
326 Md. at 414, 605 A.2d at 126.[***27] See also Dover Elevator Co. v. Swann , 334 Md. 231, 258, 638 A.2d 762, 776 (1994)(elaborating on the proposition that requested instructions need not be given if the matter is adequately covered by instructions actually given); Sergeant Co. v. Pickett, 285 Md. 186, 193, 401 A.2d 651, 655 (1979)("The court may instruct the jury upon the law, either by granting requested instructions or by giving instructions of its own on particular issues or on the action as a whole, or by several or all of these methods, but need not grant any requested instruction if the matter is fairly covered by instructions actually given."). Because Maryland Civil Pattern Jury Instruction 30:3 is a correct exposition of applicable law, the instruction actually given should have fairly covered the substance of the requested instruction.

   In the instant case, the trial judge instructed the jury as follows:
 
 "The posture of this case [is that] under the law the claimant in this case is presumed to be an independent contractor. She is not presumed to be an employee. The claimant in the case has the burden of proving her case[***28] to the extent that she is an employee. The claimant asserts that claim, that she is an employee, and has the burden of proving it by what we call [a] preponderance of the evidence." (Emphasis added).
 
This instruction obviously failed to address the existence of the Commission's decision, and it failed to inform the jury that the presumption that Holman is an independent contractor resulted from that prior determination. As such, we conclude that the instruction given did not fairly cover "the substance of the requested instruction." Wegad, 326 Md. at 414, 605 A.2d at 126. Therefore, we shall affirm the Court of Special Appeals' decision which reversed the circuit court and remanded for a new trial. [*497]

   JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED. COSTS TO BE PAID BY THE PETITIONER.

DISSENTBY: ELDRIDGE

DISSENT: Dissenting Opinion by Eldridge, J.
 
Eldridge, J., dissenting:

   In the context of this case, I am not persuaded that the trial judge's failure to inform the jury of the Commission's decision prejudiced Kelly Catering, Inc. The trial judge instructed the jury that the claimant is presumed to be an independent contractor, that she is not presumed[***29] to be an employee, and that the claimant has the burden of proving that she is an employee. Under the circumstances here, I do not believe that the failure to tell the jury of the source of the presumption was so prejudicial that a new trial is warranted.

   I agree with the majority that, under some of the "other scenarios" set forth in the majority opinion, ___ Md. at ___, ___ A.2d at ___ [slip opinion p. 10], failure to tell the jury about the basis for the presumption might constitute prejudicial error. Nevertheless I am aware of no authority holding that, in every case and in [**710] every situation where the law recognizes a presumption, it is prejudicial error for a trial judge not to inform the jury of the basis or reason for the presumption. In the present case, it would be pure speculation to conclude that the jury may have failed to apply the presumption because it was unaware of the basis for it.

   I would reverse the judgment of the Court of Special Appeals and direct that the judgment of the Circuit Court for Anne Arundel County be affirmed. 

CONTROLLER, ANNE ARUNDEL COUNTY v. PLEASURE COVE YACHT CLUB,INC. 
No. 17, September Term, 1993
 
COURT OF APPEALS OF MARYLAND
 
334 Md. 450; 639 A.2d 685; 1994 Md. LEXIS 57
 
   April  14, 1994, Filed

   PRIOR HISTORY: [***1] Appeal from the Circuit Court for  Anne Arundel  County pursuant to certiorari to the Court of Special Appeals. Bruce C. Williams, JUDGE

DISPOSITION: JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AFFIRMED. ANNE ARUNDEL COUNTY TO PAY COSTS.

CORE TERMS:  rental, boat, marina, space, boatel, docking, storage, separately, forklift, rent, regulation, rack, food, guidelines, mandatory, ordinance, sentence, customer, storing, restaurant, meal, service charge, renter, county ordinance, vessel, non-taxable, electricity, dollars, water, sales tax

COUNSEL: ARGUED BY Kurt J. Fischer of Baltimore, MD (Roger D. Redden, Piper & Marbury all on brief) all of Baltimore, MD. ARGUED BY Roger D. Redden (Kurt J. Fischer, Piper & Marbury, all on brief) all of Baltimore, MD. Judson P. Garrett, Jr., County Attorney, on brief, of Annapolis, MD., FOR PETITIONER.
 
ARGUED BY Robert J. Fuoco of Glen Burnie, MD., FOR RESPONDENT.

JUDGES: ARGUED BEFORE Murphy, C.J.; Eldridge, Rodowsky, McAuliffe, * Chasanow, Karwacki, and Bell, JJ. 

* McAuliffe, J., now retired, participated in the hearing and conference of this case while an active member of this Court; after being recalled pursuant to the Constitution, Article IV, Section 3A, he also participated in the decision and adoption of this opinion.

OPINIONBY: ELDRIDGE

OPINION: [*451]
 
[**686] Opinion by Eldridge, J.
 
The dispositive issue in this case concerns the scope of Maryland Code (1957, 1990 Repl. Vol.), Art. 24, § 9-602, authorizing Anne Arundel County to tax "space rentals." [*452]

   I.

   Ch. 302 of the[***2] Acts of 1971 provided that "the County Council for Anne Arundel is hereby empowered and authorized, by ordinance, enacted from time to time pursuant to its legislative procedure, to levy, impose, and collect a sales or use tax upon . . . space rentals." Although the statute has been amended several times, the pertinent part has remained essentially unchanged. In its present form, the statute provides that "Anne Arundel County may impose, by ordinance, and collect a sales or use tax on . . . space rentals." Art. 24, § 9-602(a). Pursuant to this authorization, the County enacted Article 6, § 7-405(b), of the Anne Arundel County Code levying "a tax of 10% of any charges or other consideration paid or received in exchange for the use of services or facilities for the purpose of docking or storing boats, including marina or boat slip facilities, space rentals, and docking and storage areas. If the services or facilities are offered in conjunction with other services or facilities, the tax applies only to the portion of consideration derived from space rental, docking, or storage."
 
The tax is usually referred to as the "boat slip tax." The county ordinance also requires that any person[***3] offering "services or facilities for the storage or docking of boats shall collect the tax from the user of the services or facilities, file a return, and remit the tax directly to the collecting authority." Anne Arundel County Code, Article 6, § 7-405(c)(1).

   The Anne Arundel County Controller promulgated regulations to assist in the administration of the boat slip tax levied by § 7-405(b). Specifically, section IIA of the regulations explains:
 
"The rate of tax is 10% and is effective July 1, 1975. The tax is levied on money received for space rental, docking or storage. In the event that there are other charges, i.e., charges for crane rental, hauling or the like, included with the charge for space rent, storage or docking, [**687] such amounts are to be excluded from the taxable amount and the bill for [*453] the charge must indicate the proportionate amount charged for each specific service."
 
In addition, the Sales Tax Division of the Controller's Office issued internal guidelines related to the administration of the boat slip tax. The guidelines were drafted by a county attorney who was apparently assigned to the Sales Tax Division. These guidelines provide in part:

   "In the case of [***4] 'boatel' storage. . . . as to when a crane is in actual use in lifting a given customer's boat in and out of storage, this service, only if separately invoiced, may be charged to a given customer as a separate non-taxable service."

   II.

   Pleasure Cove Yacht Club, Inc., is an Anne Arundel County yacht club which, in exchange for annual dues, grants members the use of its swimming pool, tennis courts, picnic area, and clubhouse. Pleasure Cove also operates a marina and rents wet slips, outside storage racks, and boatel spaces to yacht club members only. n1 Before 1989, members seeking to rent a slip, outside storage rack, or boatel space would enter a rental contract with the marina to pay, in addition to membership dues, a rental fee for the slip or space. The entire rental fee was subject to the boat slip tax, even though the amount paid included the cost of marina services. Among the marina services covered by the rental fee were forklift services, n2 ice[*454] eater, n3 electricity, trash removal, assistance to members getting on and off the boats, assistance with canvassing boats, boat cleaning services, security, snow removal, and periodic checking of bilge pumps. 

n1 A boatel is a building containing multi-tiered racks on which the boats are stored. A forklift is used to retrieve boats from the storage units. 

[***5] 

n2 Members are not permitted to use the forklift themselves but must request the assistance of the yacht club staff. Payment of the necessary fees entitles members to unlimited use of the forklift. Generally, the fees are assessed without regard to the frequency of use. An exception exists if a member rents a boatel space or outside rack strictly for storage and does not intend to use the boat during the course of the rental period. In this case, the manager, in his discretion, may reduce the cost of marina services or eliminate the fee altogether.

n3 The ice eater is an electrically driven propeller placed underwater to drive the warmer bottom waters to the surface. This action, coupled with the constant circulation of the water, helps prevent freezing and damage to the boats.

   After being told by other managers that marina services were not taxable, Ed Sealing, Pleasure Cove's general manager, revised the manner in which members were charged under the rental contracts. In the 1989 rental agreements, Pleasure Cove reduced by one-half the previous cost of the space rental and charged members [***6] separately for marina services, usually in the amount of the abated rental fee. n4 Pleasure Cove only applied the boat slip tax to the reduced amount separately stated for the space rental. 

n4 For example, a boatel rental contract in 1988 might have included a $500 charge for membership dues, a $1,000 charge for the rental space, and a 10% tax on the cost of the rental space. In 1989, the same contract would have included a $550 membership fee (reflecting an increase in dues from the previous year); the rental space, however, would be billed at $500 and a new marina services charge would also cost $500. The boat slip tax would be applied only to the $500 space rental.

   Pleasure Cove then requested a $10,000 refund from the County for overpayment of the boat tax for the years prior to 1989. This request precipitated an audit by the County. While examining Pleasure Cove's records, Tracy Cabral, an auditor with the Sales Tax Division of the County Controller's office, noticed the difference between the tax amount[***7] collected on the space rentals in 1988 and the amount collected in 1989. She also discovered that the 1989 rental contracts contained a new charge for marina services to which the boat sales tax had not been applied. After receiving what she regarded as an unsatisfactory explanation of the marina services charge, Ms. Cabral concluded that the cost of marina services should have been subject to the county boat slip tax. Pleasure Cove was [*455] assessed $7,736.16 for the tax deficiency and $773.62 in penalties.

   [**688] Pleasure Cove requested a review of the assessment by the Maryland Tax Court. At the Tax Court hearing, Mr. Sealing testified as to the services that were provided for by the marina service fee. He also testified that the need for certain services depended on whether the rental was for a slip or a boatel. He explained that, although the slip renters are permitted to store their boats temporarily in a boatel space and may make use of the forklift to do so, the forklift is primarily used by boatel renters to remove their boats from the space and to return the boats to the boatel. Slip renters, on the other hand, make primary use of the ice eater because their boats remain in the water [***8]throughout the winter. Mr. Sealing further testified that, unless a renter intended to store his boat for the year without making use of it, every renter would pay some amount for marina services. He explained that there was no set formula for determining the marina services fee, n5 but that the cost of the space rental generally equalled the cost of marina services. According to Mr. Sealing, "the amount of the service is corresponding, in most cases, to the length of the vessel that we are handling. . . . Different length vessels require special handling, strain upon the equipment. Larger vessels, heavier vessels produce more strain, more wear and tear on the equipment and the operators. Some vessels even require multiple operators, where you have people on the ground we call spotting the vessel at both ends of it, while the equipment operator is moving it."

n5 On cross examination, Mr. Sealing admitted that, in a deposition, he had previously answered "no" when asked, "is the amount charged customers for other marina services in any way related to the cost of providing those services?"

[***9]  
Since members with larger boats typically were charged higher rental fees, a comparable charge for marina services would [*456] take into account the greater wear and tear on equipment caused by rendering services for the larger boats.

    Frederick Mershon, a marina owner, testified as to the rental practices at the two county marinas with which he is associated. He explained that, like Pleasure Cove, London Towne Marina rents slips, boatel spaces, and outside storage racks. In 1989, according to Mr. Mershon, the marina charged $180 per year for a boatel rental, $60 per year for an outside rack, and $1,232 for "in and out service" or handling the boat. n6 The tax was collected only for the $180 boatel space or the $60 outside rack. Mr. Mershon also disclosed that London Towne Marina had been audited in the past by Ms. Cabral and that no objections had been raised as to how London Towne applied the boat slip tax. As to Holiday Point Marina, which rents wet slips only, Mr. Mershon testified that slip rental customers were not, and are not, separately charged for the limited services offered by that marina.

n6 When asked how the amount for the space rental was computed, Mr. Mershon replied:

   "When . . . Anne Arundel County first imposed the tax for the slip tax, I went to the county offices of the Controller. I can't tell you who I met with at the time, but I had prepared . . . documents on the cost of the boatel to build, what the cost would be to operate it, what would the overhead be, and what would be a reasonable profit for this.

   "And the county and I, at that time, agreed that fifteen dollars a month, or [one] hundred and eighty dollars a year would be a satisfactory charge for the rent. And the balance would be for the cost of handling the boat."
 
Mr. Mershon also explained that the service charge was simply an amount that fell "somewhere between a happy medium of what we felt we could get for the rental and what we absolutely needed in order to exist as an operating entity."

[***10]

   Ms. Cabral testified that a typical marina in Anne Arundel County charges for the rental space and includes the services as part of that charge. She further stated that if London Towne were charging for the space rental and services in the manner testified to by Mr. Mershon, then it was not complying with the requirements of the county boat slip tax. On cross examination she admitted that Pasadena Boatel, another county marina which Ms. Cabral had audited, treats some of [*457] its marina services as non-taxable items. According to Ms. Cabral's testimony, she relied upon § 7-405(b) and the administrative regulations in calculating the boat slip tax. She admitted that she was familiar with the Sales Tax Division's guidelines drafted by [**689] a county attorney and that they did not contradict county policy. She also maintained that the county no longer relies upon them. There was, however, some evidence indicating that Ms. Cabral may have relied upon the guidelines in auditing Pleasure Cove. n7 

 n7 Ms. Cabral testified that she had concluded that the charge for marina services, which Mr. Sealing had told her was for electricity, was taxable, because the electricity was not separately metered. Neither § 7-405(b) nor the regulations address the taxability of electricity; the guidelines, however, state that ". . . your records and billings should not separately itemize those 'support services' which are incidental to the boat slip or storage rental service as separate 'non-taxable' services. Examples of such 'support services' include but are not limited to . . . charges for electricity not separately metered by the utility company for each individual slip."

[***11]

   The Tax Court affirmed the County assessment but vacated the penalty that had been imposed. In its opinion, the Tax Court first appeared to say that, if the cost of hauling a boat to and from storage and other services were separately charged, the services would be non-taxable. The court explained:

   "It's the Court's opinion that really what the ordinance is talking about, as far as the exclusions go, is that if it costs you X numbers a year for a . . . boatel . . ., and then they say in addition to that we charge you a hundred dollars to put your boat . . . in in the spring and a hundred dollars to pull it out in the fall, so it's really going to cost you X dollars plus the two hundred for the in and out, then this Court feels that this is what the language of that ordinance is addressing; is that when that kind of charge is made, then you shouldn't impose the tax on that.

   "And again the law says that it has to be broken out. So you would really have a space rental, and a cost of hauling and putting the boat back in and out."
 
[*458] Later the Tax Court referred to Pleasure Cove's change in practices and stated, somewhat inconsistently, that, even with the separate charge for marina services, [***12] this case would be governed by Baltimore Country Club v. Comptroller, 272 Md. 65, 321 A.2d 308 (1974). According to the Tax Court, "we do feel that the [Baltimore Country Club] case . . . is very close to the situation we have here; where . . . it was some type of business organization, that they were charging for the food and then there was a fifteen percent service charge put on top of it. And they were saying that that should not be taxable, and the appeals court said yes that it would be taxable."

   Finally, the Tax Court criticized the County for its inconsistent administration of the tax:

   "So it's a circumstance here where this Court truly believes that . . . Anne Arundel County is primarily responsible for the pickle that this taxpayer finds himself in at this particular point.

    * * *

   "But this really looks to me like a situation where Anne Arundel County, although they can charge this tax in the manner that they have already, and which this Court is affirming, but under the circumstances with a lack of a consistent pattern of collecting this tax from these various marinas over the years, and in light of the fact that Pleasure[***13] Cove is in a position now where apparently they will not only have '89, but '90 and even '91 to deal with as far as this deficiency goes, it may be a good time to say you know what, we may have led these people down the wrong road with some of the things that we have been doing."
 
The Tax Court stated in its Order that the amounts charged by Pleasure Cove for marina services "constitute taxable consideration paid or received in exchange for the use of services or facilities for the purpose of storing and docking boats under § 7-405(b) of the Anne Arundel County Code . . . ." [*459]

   Pleasure Cove sought review of the agency decision in the Circuit Court for Anne Arundel County. The circuit court, treating the issue as entirely one of statutory construction, reversed based upon its interpretation of § 7-405(b). The circuit court held that, under the plain meaning of the county ordinance, forklift and other marina services [**690] were not taxable. The circuit court analyzed the ordinance as follows:
 
"This Court finds the statutory language of § 7-405 to unambiguously state which services or facilities are taxable under § 7-405. This finding is best understood by reading each clause of § 7-405 independently. [***14]

   "The first clause of the first sentence reads 'There is a tax . . . for the use of services or facilities. . . .' This clause standing alone is somewhat ambiguous. However, the second clause of the first sentence, modifying the first clause, describes what 'services or facilities' are taxable. Taxable 'services or facilities' are those which are used '. . . for the purpose of docking and storing boats . . . .' From a plain reading of these two clauses this Court finds the clear intention of the County Council by enacting the Boat Tax was to tax only those services or facilities which are used for the purpose of docking and storing of boats.

   "Nevertheless, there may be confusion over whether fork-lift services are 'used for the purpose of docking and storing boats.' However, any confusion in this regard is removed by the third clause of the first sentence which itemizes the types of 'services or facilities' which are used for 'the purpose of docking and storing boats' and thus taxable under the Boat Tax. According to the statute these items include '. . . marina or boat slip facilities, space rentals, and docking and storage areas.' This Court does not find in this first sentence a [***15]reasonable interpretation which would include fork-lift services as a taxable item.

   "This Court has applied the same analysis to the second sentence of the Boat Tax and in doing so does not find a reasonable interpretation which would include fork-lift services as a taxable service. The first clause of this sentence reads 'If the services or facilities are offered in conjunction [*460]with other services or facilities, . . . .' This Court interprets this clause as referring to the services or facilities which are delineated in the first sentence, i.e. marina or boat slip facilities, space rentals, and docking and storage areas. Additionally, this clause sets up the conditional situation when these particular services are commingled with other services. This leads us to the second clause of the second sentence which explains, 'the tax applies only to the portion of consideration derived from space rental, docking, or storage.' Again a plain reading of this clause does not include fork-lift services as an item which must be separated as a taxable item."
 
Anne Arundel County appealed to the Court of Special Appeals. Before the case was heard by the Court of Special Appeals, Pleasure Cove [***16] filed in this Court a petition for a writ of certiorari which we granted.

   III.

   Pleasure Cove in its petition and brief argues that the circuit court correctly interpreted the county ordinance. Alternatively, Pleasure Cove argues that, "if the county boat slip tax does apply to services, Anne Arundel County has exceeded its authority under state law" by imposing the boat slip tax on marina services. In addition, Pleasure Cove complains about certain evidentiary rulings by the Tax Court.

   The County argues that § 7-405(b) of the Anne Arundel County Code permits the County to tax marina services and that the ordinance is within the authority delegated to the County by the State statute, Art. 24, § 9-602. Specifically, the County argues that, because the marina services are a mandatory, integral part of the space rental, they are subject to the boat slip tax. n8 Like the Tax Court, the County primarily [*461] relies upon Baltimore Country Club v. Comptroller, supra, 272 Md. 65, 321 A.2d 308, to support its position. The County further argues that the Tax Court properly applied the correct [**691]legal principles, and that its decision was supported by[***17] substantial evidence. 

n8 It was not established in this case that the marina services charge was mandatory. Although Mr. Sealing testified that most people pay some amount for marina services, he also stated that the charge for services could be reduced or waived if a member were not going to use some or all of the services during the rental period. The Tax Court made no finding with regard to the matter.

   In our view, when the General Assembly in Art. 24, § 9-602, authorized Anne Arundel County to levy a tax on "space rentals," it did not authorize the County to levy a tax on other marina services, such as involved in this case, when the charge for the space rental, reasonably reflecting the space rental, is set forth separately from the charge for the other marina services. Consequently, we do not reach the other challenges to the Tax Court's decision which have been made by Pleasure Cove.

   As indicated above, the thrust of the County's statutory construction argument, with respect to both the state enabling statute[***18] and the county ordinance, is that the tax in question, being a sales tax, "is imposed on the purchase price and reaches all charges required to be paid as a constituent or bundled part of the price, including services that must be purchased as a part of the sale. Baltimore Country Club v. Comptroller, 272 Md. 65, 73, 321 A.2d 308 (1974); see Hooks v. Comptroller, 265 Md. 380, 386-387, 289 A.2d 332 (1972)."
  
(Reply Brief of Appellant at 11).
 
The Baltimore Country Club case was also the basis for the Tax Court's decision in the present case. In our view, neither Baltimore Country Club, nor Hooks v. Comptroller, 265 Md. 380, 289 A.2d 332 (1972), also cited by the County, supports the Tax Court's decision.

   Preliminarily, as noted previously, the Tax Court made no factual finding that the full marina services charge was mandatory. Moreover, the evidence would not have supported such a finding if it had been made. This factor itself removes [*462] the instant case from the principle applied in Baltimore Country Club v. Comptroller, supra.[***19] Furthermore, even if we assume arguendo that the full marina services charge was mandatory for all of those members renting boat slips, outside racks, or boatel spaces, the Baltimore Country Club and Hooks cases are distinguishable.

   In both Baltimore Country Club and Hooks this Court interpreted the "price" of a retail sale under the Maryland Retail Sales Tax Act, Maryland Code (1957, 1969 Repl. Vol.), Art. 81, § 324 et seq., to include certain mandatory expenditures integrally connected with a purchase or rental. This Court held in Baltimore Country Club that because the service of food and beverages was an integral part of the sale of restaurant food, and because a service charge was mandatorily imposed by the club, the service charge was a taxable part of the price of the food and beverages. 272 Md. at 73-74, 321 A.2d at 312-313. In Hooks , supra, the Court held that the taxable price of a taxicab rental included amounts contractually required to be paid to the lessor for gasoline, even though the purchase of gasoline, by itself, would not have been subject to [***20]the sales tax. 265 Md. at 386-387, 289 A.2d at 335.

   The services in Baltimore Country Club and Hooks were quite different from the marina services at issue in the present case. With regard to the Baltimore Country Club case, restaurant service is inherently necessary to the sale of restaurant meals and is usually not optional. n9 Thus, the price of a meal typically reflects the cost to the restaurant of serving the meal. When, in addition to the price of the meal, a restaurant requires a customer to pay a fixed-percentage gratuity, it is simply charging a higher amount for the service aspect of the meal. As we explained in Baltimore Country Club, 272 Md. at 73, 321 A.2d at 313, quoting Youngstown Club v. Porterfield, 21 Ohio St.2d 83, 86, 255 N.E.2d 262, 264 (1970), [*463] "'the Club is furnishing and serving food and drinks, and its billing to members includes the [mandatory] service charge. The fact that the service charge is somewhat segregated from the charge for food and drinks, and will eventually pass to the waiters, does not make the labor [***21]cost any different from the amount for fixed labor costs which are included in the price for food and drinks.'" 

n9 For practical reasons, restaurants do not permit customers to retrieve and assemble the various parts of their meals from the kitchen after the food has been cooked or otherwise prepared.

 
[**692] Since the mandatory gratuity was, in essence, part of the cost of the meal, it was held to be subject to the retail sales tax. n10 

n10 We note that, since our decision in Baltimore Country Club, the General Assembly has excluded "a mandatory gratuity or service charge in the nature of a tip for serving food or beverage to a group of 10 or fewer individuals for consumption on the premises of the vendor" from the definition of taxable price. Maryland Code (1988, 1993 Cum. Supp.), § 11-101(i) of the Tax-General Article.

   The marina services involved [***22] here, on the other hand, are not inherently necessary to the wet slip, outside rack, or boatel rental. Boat slip renters are capable of performing the marina services on their own and quite often do. Checking bilge pumps, breaking up ice around boats, cleaning and canvassing boats, etc., are all activities performable without the assistance of the marina staff. Likewise, members do not necessarily require a marina forklift to get their boats into and out of the water. There is nothing in the record to suggest that a renter may not use his or her own boat trailer or other means for that purpose. Unlike the restaurant service in Baltimore Country Club and the gasoline in Hooks, the marina services involved here are not intrinsically necessary to the space rental.

   Moreover, the tax at issue in this case is not a general retail sales tax like that involved in Baltimore Country Club and Hooks. Instead, it is a sales tax applied to a very specific item -- a space rental. In addition, neither Baltimore Country Club nor Hooks involved the delegation of taxing power to a county. As subdivisions of the State, counties do not have inherent taxing authority; their power[***23] to tax depends upon the grant of authority from the State.  [*464] Eastern Diversified v. Montgomery Cty., 319 Md. 45, 49, 570 A.2d 850, 852 (1990); Schneider v. Lansdale, 191 Md. 317, 324-325, 61 A.2d 671, 674 (1948); 2A Antieau, Local Government Law § 21.00 (1990); 4 Sands & Libonati, Local Government Law, § 23.02 (1993). Courts strictly construe the delegation of taxing power to a county. 2A Antieau, supra, § 21.02. This Court has generally observed that (Fair Lanes v. Comptroller, 239 Md. 157, 162, 210 A.2d 821, 823 (1965)) "in interpreting tax statutes [we] must not extend their provisions by implications beyond the clear import of the language employed and where there is doubt as to such a statute's scope, it should be construed most strongly in favor of the citizen and against the state."
 
See also Comptroller v. John C. Louis Co., 285 Md. 527, 539, 404 A.2d 1045, 1053 (1979); Comptroller v. Mandel Re-Election Com., 280 Md. 575, 580, 374 A.2d 1130, 1132 (1977),[***24] quoting Magruder v. Hospelhorn, 173 Md. 62, 72, 194 A. 839, 844 (1937); Comptroller v. Burn Brae Dinner Theatre, 72 Md. App. 314, 320-321, 528 A.2d 546, 550 (1987).

   Because the instant case involves a delegation of the tax power to Anne Arundel County, a court should strictly construe the language of Art. 24, § 9-602(a). Section 9-602(a) authorizes the County to impose a sales or use tax on "space rentals." The section does not expressly refer to the taxability of services used in conjunction with the space rental, nor does it define the words "space rental." When the words of a statute are left undefined by the Legislature, they "should be construed as having [their] ordinary and commonly-accepted meaning." Scoville Service, Inc. v. Comptroller, 269 Md. 390, 395, 306 A.2d 534, 537 (1973); Reinhardt v. Anne Arundel Co., 31 Md. App. 355, 362, 356 A.2d 917, 921 (1976). In Reinhardt, to determine whether an earlier version of § 9-602 was unconstitutionally vague, the Court of Special Appeals consulted[***25] Webster's Third New International Dictionary, Unabridged (1971) for the definitions of space and rental (31 Md. App. at 362, 356 A.2d at 921):
 
[*465] "'Space -- 2a: a limited extension in one, two, or three dimensions: a part marked off or bounded in some way.'"
 
"'Rental -- 2: an amount paid or collected as rent: income from rent: . . . return (as a sum of money) given or received as rent.'"
 
The American Heritage Dictionary of the English Language (1969) defines rent as "payment, usually of an amount fixed by contract, . . . for the right to occupy . . . the property of another." Under these definitions, [**693] "space rental" is the paid-for occupation of a bounded area. This meaning does not embrace any separately charged services offered in conjunction with the rental.

   Furthermore, the legislative history of § 9-602 does not disclose the General Assembly's intention to authorize a tax on a separate charge for marina services. The County points out that in Ch. 563 of the Acts of 1981, § 9-602 was amended to read as follows (emphasis added):
 
"(a) The County Council for Anne Arundel may by ordinance levy, impose, and collect a sales or use tax[***26] upon the goods and services specified in this section.
 
"(b)(1) The tax may be imposed upon fuels and utilities used by commercial and industrial businesses; residential, commercial and industrial telephone service; and space rentals."
 
According to the County, the inclusion of the phrase "goods and services" is an indication that the General Assembly intended to allow the County to tax services incidental to the space rental. The amendment, however, cannot reasonably be construed to enlarge the scope of the taxing power. It is merely descriptive of the specific taxable items enumerated in the section. In addition, the County overlooks the fact that the phrase was deleted from the statute by Ch. 2, § 2, of the Acts of 1988.
 
The County's own regulations and guidelines seem to exempt the use of the forklift and other marina services from the boat slip tax. Section IIA of the Rules and Regulations provide:
 
[*466] "The rate of tax is 10% and is effective July 1, 1975. The tax is levied on money received for space rental, docking or storage. In the event that there are other charges, i.e., charges for crane rental, hauling or the like, included with the charge for space rent, storage [***27]  or docking, such amounts are to be excluded from the taxable amount . . . ." (emphasis added).
 
The County argues that this regulation exempts from the boat slip tax only those separately stated charges that are not for the purpose of docking and storing of boats. The County suggests, as an example, the situation in which a forklift is used to remove a boat from the water for repairs. This argument is dubious. Under the County's interpretation of the regulation, whenever the forklift is engaged to remove a boat from the boatel, it would also not be taxable, because the purpose for taking the boat out of the boatel is not for docking and storing but for use on the water. We do not believe that the regulation is susceptible to the County's construction. The regulation represents an administrative construction both of § 9-602 and of the county ordinance which supports the taxpayer's position in the present case. Such administrative construction is entitled to considerable weight. Md. Classified Employees v. Governor, 325 Md. 19, 33, 599 A.2d 91, 98 (1991), cert. denied, 112 S. Ct. 1160, 117 L. Ed. 2d 407 (1992);[***28] Falik v. Prince George's Hosp., 322 Md. 409, 416, 588 A.2d 324, 327 (1991); Fishkind Realty v. Sampson, 306 Md. 269, 283, 508 A.2d 478, 485-486 (1986) ("Generally when this Court construes a statute, it gives weight to settled administrative practice under that statute as long as the administrative practice is not inconsistent with the plain statutory language") (emphasis deleted).

   The County Sales Tax Division's guidelines, although now purportedly abandoned by the County, also indicate that the County has construed the enabling act and the ordinance as excluding from taxation the separately charged cost of forklift and other marina services:
 
"As to when a crane is in actual use in lifting a given customer's boat in and out of storage, this service, only if [*467] separately invoiced, may be charged to a given customer as a separate non-taxable service."
 
The only prerequisite to the tax exemption for the forklift is that the cost be separately stated. Pleasure Cove has stated separately its charge for the forklift and other marina services. Although the guidelines may not be entitled to as great[***29] a weight as interpretive regulations, they do provide an indication as to how the County believed the boat slip tax should be administered and thus represent an administrative interpretation of the state enabling act and of the county ordinance.

   [**694] We hold that Art. 24, § 9-602, authorizes Anne Arundel County to tax the consideration for the space rental only and not the consideration for marina services, such as involved in this case, which are set forth separately from the space rental charge. n11 

n11 There is a caveat to our holding in this case. The County suggests that, if the separately stated services are not taxable, the marina might charge only a nominal fee, such as $1.00, for the space rental and a great deal more for the incidental services (Reply Brief of Appellant at 13-14). If such a sham were to occur, we would agree with the County that the separately stated amount for the services would be taxable. It has not been suggested in the present case, however, that the separately stated amount for the slip rental, outside rack rental, or boatel rental is artificially low or below the fair market value.

[***30] 
 
JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AFFIRMED. ANNE ARUNDEL COUNTY TO PAY COSTS. 

                       
J. JOSEPH CURRAN, JR. v. RONALD W. PRICE 
No. 76, September Term, 1993
 
COURT OF APPEALS OF MARYLAND
 
334 Md. 149; 638 A.2d 93; 1994 Md. LEXIS 39
 
   March  14, 1994, Filed

   PRIOR HISTORY: [***1] Certiorari to the Court of Special Appeals (Circuit Court for  Anne Arundel  County).

DISPOSITION: JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY VACATED; CASE REMANDED TO THAT COURT WITH DIRECTIONS TO DISMISS THE ACTION AGAINST RONALD PRICE AS NOT AUTHORIZED BY § 764 OF ARTICLE 27. COSTS TO BE PAID BY THE STATE OF MARYLAND.

CORE TERMS:  notoriety, regulation, First Amendment, overbreadth, amicus, content-based, film, fundraisers, prior restraint, judicial review, content-neutral, tangentially, feelings, emotions, speakers, license, applicability, overinclusive, incidentally, concealing, unrelated, convicted, safeguards, overbroad, constitutional privilege, self-incrimination, impermissible, susceptible, aimed, narrowly tailored

COUNSEL: ARGUED BY J. Joseph Curran, Jr., Attorney General of Maryland, (Ralph S. Tyler, Deputy Attorney General, and Mary O'Malley Lunden, Assistant Attorney General, all on brief) all of Baltimore, MD., FOR PETITIONER.
 
ARGUED BY Timothy Umbreit (Umbreit & Resnick on brief) all of Baltimore, MD., FOR RESPONDENT.
 
AMICUS CURIAE: Steven F. Reich (David B. Isbell, Leslye A. Herrmann, Covington & Burling, all on brief) all of Washington, D.C. and Susan Goering, American Civil Liberties Union Foundation of Maryland, on brief) of Baltimore, MD.

JUDGES: ARGUED BEFORE Murphy, C.J.; Rodowsky, McAuliffe, * Chasanow, Karwacki, Bell, and Orth, Charles E., Jr. Judge of the Court of Appeals (retired, specially assigned), JJ. 

* McAuliffe, J., now retired, participated in the hearing and conference of this case while an active member of this Court; after being recalled pursuant to the Constitution, Article IV, Section 3A, he also participated in the decision and adoption of this opinion.

[***2]

OPINIONBY: MURPHY
 
OPINION: [*154]  
[**96] OPINION BY MURPHY, C.J.

   This case focuses upon Maryland's so-called "Son of Sam" statute, Maryland Code (1957, 1992 Repl. Vol. and 1993 Cum. Supp.) Art. 27, § 764, which was enacted to prevent criminals from profiting from their own crimes through "notoriety of crimes contracts," defined in § 764 (a)(5) as a contract with respect to 
 
"(i) The reenactment of a crime by way of a movie, book, magazine article, tape recording, phonograph record, radio or television presentation, or live entertainment of any kind;

[*155]

   "(ii) The expression of the defendant's thoughts, feelings, opinions, or emotions regarding a crime involving or causing personal injury, death, or property loss as a direct result of the crime; or

   "(iii) The payment or exchange of any money or other consideration or the proceeds or profits that directly or indirectly result from a crime, a sentence, or the notoriety of a crime or sentence."
 [*156]
Section 764 (b) requires that a "person" who enters into a notoriety of crimes contract with a "defendant" must "submit a copy of the contract or summary of the terms of an oral agreement to the Attorney General . . . and . . . pay over to the Attorney General any[***3] moneys or other consideration . . . which would otherwise be owing to the defendant." Section 764 (a) (3) defines "person" as "a natural person, a firm, corporation, partnership, association, or other legal entity."

   Section 764 (a) (2) defines a "defendant" as "a person charged with or convicted of a crime in this State involving or causing personal injury, death, or property loss as a direct result of the crime." Section 764 (a) (4) defines the term "victim" to mean a person "who suffers personal injury, death, or property loss as a direct result of crime."

   Section 764 (c) (1) and (2) require that the Attorney General mail to a "victim" of the defendant's crime a notice that the Attorney General has a copy of the contract and shall determine after the passage of 30 days, but before the expiration of 180 days from receipt of the contract, whether the contract is a "notoriety of crimes contract." It further provides that the Attorney General may render a decision after 180 days "for cause."

   Section 764 (c) (3) creates a rebuttable presumption that the contract is a notoriety of crimes contract but permits the "defendant" to establish to the "satisfaction of the Attorney General" that[***4] the subject matter of the contract only tangentially or incidentally relates to the crime.

   Section 764 (d) provides that a "person" may not conceal the existence of a notoriety of crimes contract or "make or receive payments" under such a contract.
 
   Section 764 (n) provides that any person aggrieved by a determination of the Attorney General may seek judicial review.

   [**97] Section 764 (p) authorizes the Attorney General to institute injunctive proceedings against a "person" who violates or threatens to violate any provision of § 764. Section 764 (o) provides that any person who willfully fails to submit a copy of the contract to the Attorney General, or to pay over to the Attorney General any moneys or other consideration as required by the statute, shall be subject to certain civil monetary penalties, as set forth in the statute.

   I

   Ronald W. Price (Price), a former Anne Arundel County high school teacher, was indicted on March 5, 1993 for criminal violations, including sexual child abuse and unnatural and perverted practices committed upon former students. n1 After Price's indictment and prior to his trial, the case received widespread attention, due in large part to the fact that Price[***5] appeared on national television talk shows acknowledging that he had engaged in sexual relationships with several of his female high school students. He also granted interviews to various local and national news media. In at least one of these interviews he stated that he had entered into a contract to sell "his story." n2 In response to that statement, and pursuant to § 764, an Assistant Attorney General wrote to Price's counsel inquiring whether Price had, in fact, entered into a contract that might be covered by the statute, and, if so, [*157] with whom and for what consideration. Price responded through counsel that he had entered into a contract for his "life story," but refused to produce a contract or summary of any oral agreement, maintaining that § 764 was unconstitutional and in any event that the contract was only tangentially related to the crimes. Believing that the only basis for commercial interest in Price's life story was the criminal conduct with which he was charged, and therefore that it was most likely that any contract Price made would be covered by § 764, the Attorney General filed a "Complaint for Injunctive Relief" against Price in the Circuit Court for Anne Arundel[***6] County. The complaint recited that Price's "intentional concealment of and failure to submit to the Attorney General any contract for his life story, including his alleged criminal activity" violates Article 27, § 764. The Attorney General sought an interlocutory injunction, pending final adjudication of the case, requiring Price to submit the contract to him, together with any payments received under the contract. The complaint also sought "a final binding declaration of rights of the parties," followed by a permanent injunction. 

n1 Price was convicted of both charges on September 8, 1993 and was sentenced to 26 years imprisonment.

n2 In a Washington Post article dated June 26, 1993 it was reported that Price indicated that he "signed an option to tell his story to a Hollywood movie producer."

   The court (Lerner, J.) denied the Attorney General's prayer for injunctive relief and declared that § 764 was "unconstitutional and unenforceable." In so acting, the court determined that § 764 was unconstitutionally overinclusive [***7]on its face and violated the principles of the First Amendment. It noted that under § 764 (a) (5) (ii) a "notoriety of crimes contract" was one respecting "the expression of the defendant's thoughts, feelings, opinions or emotions regarding a crime." Consequently, the court held that § 764 is a content-based regulation of speech which must be justified by a compelling government interest and narrowly tailored to further that interest. The court found that, while the State clearly has a compelling interest to prevent criminals from profiting from their crimes, and to compensate victims, § 764 swept so broadly as to reach forms of expression which the State had no compelling interest to regulate.

   The State appealed to the Court of Special Appeals. We granted certiorari prior to review by the intermediate appellate [*158] court to consider the question presented by the State in its certiorari petition, i.e., whether it was constitutional under § 764 to require Price "as a person charged with serious crimes to submit to the Attorney General for review any notoriety of crimes contract." In its petition for certiorari, the State urged that we "resolve definitively the constitutionality of § 764." [***8]

   [**98] II

   Notwithstanding the question presented in its petition, the Attorney General argues that it is unnecessary for us to reach the issue of whether the entire statute is unconstitutional. Instead, he maintains that until the contract is produced and he is able to determine whether it is covered by the statute, any broad determination of the statute's constitutionality is premature. The Attorney General contends that any analysis of constitutionality should await a full and complete factual record. He maintains that constitutional issues do not arise when the Attorney General seeks merely to obtain a contract to determine the statute's applicability. He argues that the State is entitled to obtain information about a criminal defendant's proposed activity even if it enjoys First Amendment protection. He likens the requirement to produce the contract to a "time, place, and manner" restriction in which demonstrators must tell the State of a planned demonstration and apply for a permit to demonstrate. Moreover, it is maintained that there is little, if any, "speech" involved in producing the contract, and thus any incidental limitations on First Amendment freedoms are justified by the State's[***9] interest in ensuring that criminals not profit from their crimes. The State asserts that Price's obligation to produce the contract, the Attorney General's determination of the statute's applicability to any submitted contract, the right to judicial review of the Attorney General's decision, and his authority to seek injunctive review, are all "procedural steps" which must be exhausted before any constitutional issues should be reached. Alternatively, the argument is advanced that, in the event a constitutional review is necessary, we should conclude that § 764 is constitutional [*159] because it is a content-neutral statute, narrowly tailored to further an important government interest.

    Price contends that the statute is unconstitutional, but puts forth no legal arguments in support of his contention. The American Civil Liberties Union, appearing as amicus curiae (amicus), urges that the statute is a content-based restriction which sweeps too broadly, unconstitutionally burdening speech that is protected by the First Amendment. It posits that the production requirement and subsequent review by the Attorney General constitute a prior restraint on speech which lacks all the procedural safeguards[***10] necessary to make it constitutionally permissible. In addition, amicus suggests that the statute covers works by defendants whose crimes caused any property loss or injury, no matter how minimal, thereby resulting in the forfeiture of a defendant's speech-related earnings. Also, amicus observes, the statute deprives defendants of their earnings regardless of whether the victim of their crime makes a claim on the escrow fund as unclaimed funds may be given to victims of unrelated crimes. III

   Courts have the power and the duty to determine the constitutionality of legislation. Barnes v. Meleski, 211 Md. 182, 186, 126 A.2d 599 (1956). In reviewing the constitutionality of Maryland's statute, we are guided by the Supreme Court's decision in Simon & Schuster v. New York Crime Victims Board, ___ U.S. ___, 502 U.S. 105, 112 S. Ct. 501, 116 L. Ed. 2d 476 (1991). Maryland's statute was based originally upon the New York statute, N.Y. Exec. Law § 632-a (McKinney 1982 and Supp. 1991), which the Supreme Court found unconstitutional in Simon & Schuster. n3 The original Maryland statute was [*160] subsequently amended[***11] to its current form in 1992 in response to that decision. To be determined on a proper record is whether the amendment was successful in removing the constitutional [**99] infirmity existing in the original New York and Maryland statutes.

n3 The original New York statute provided in pertinent part:
 
"Every person, firm, corporation, partnership, association or other legal entity contracting with any person . . . accused or convicted of a crime in this state, with respect to the reenactment of such crime, by way of a movie, book, magazine article, tape recording, phonograph record, radio or television presentation, live entertainment of any kind, or from the expression of such accused or convicted person's thoughts, feelings, opinions or emotions regarding such crime, shall submit a copy of such contract to the board and pay over to the board any moneys which would otherwise, by terms of such contract, be owing to the person so accused or convicted . . .." N.Y. Exec. Law § 632-a (1) (McKinney 1982).

   The Supreme Court invalidated[***12] the New York "Son of Sam" statute on the ground that it imposed a financial burden only on speech of a specified content, Simon & Schuster, supra, 112 S. Ct. at 508, and because it was not narrowly drawn to serve a compelling state interest in ensuring that victims are compensated by those who harm them, and that criminals not profit from their crimes, id. at 510-11. The Court found that the statute was "significantly overinclusive" in that it applied to works on any subject, as long as they expressed the author's thoughts or recollections of the crime, "however tangentially or incidentally." Id. at 511. In addition, the New York statute applied to persons who admitted in a work that they had committed a crime, whether or not they were ever accused or convicted. Id. The Court noted that these provisions encompassed a wide range of works, many by prominent figures. n4 

n4 The Court noted that "had the Son of Sam law been in effect at the time and place of publication, it would have escrowed payment for such works as The Autobiography of Malcolm X, which describes crimes committed by the civil rights leader before he became a public figure; Civil Disobedience, in which Thoreau acknowledges his refusal to pay taxes and recalls his experience in jail; and even the Confessions of Saint Augustine, in which the author laments 'my past foulness and the carnal corruptions of my soul,' one instance of which involved the theft of pears from a neighboring vineyard. . . . A list of prominent figures whose autobiographies would be subject to the statute if written is not difficult to construct: The list could include Sir Walter Raleigh, who was convicted of treason after a dubiously conducted 1603 trial; Jesse Jackson, who was arrested in 1963 for trespass and resisting arrest after attempting to be served at a lunch counter in North Carolina; and Bertrand Russell, who was jailed for seven days at the age of 89 for participating in a sit-down protest against nuclear weapons." Id.

[***13] [*161]

   It was the purpose of the Maryland legislature, in amending § 764, to make its provisions content-neutral and remedy the problem of overbreadth. To this end, the amendments to § 764 (a) (2) narrowed the definition of defendant to a person charged with or convicted of a crime. In addition, the amendments added language to the original subsection (b) which broadened the description of applicable contracts to include not only those with respect to reenactment of a crime or the expression of the defendant's thoughts, feelings, opinions or emotions regarding the crime, but also those with respect to "the payment or exchange of any money or other consideration or the proceeds or profits that directly or indirectly result from a crime, a sentence, or the notoriety of a crime or sentence." § 764 (a) (5) (iii).

   As we see it, while the language of § 764 (a) (5) (iii) does not expressly target speech, its addition does not appear to negate the content-based nature of the language in subsections (a) (5) (i) and (ii). These subsections still define a notoriety of crimes contract by the content of the work to which it relates, specifically "the reenactment of a crime" or "the expression of the [***14]defendant's thoughts, feelings, opinions, or emotions regarding a crime." Moreover, these subsections still require the Attorney General to consider the subject matter of the work in determining whether the contract falls under the statute.

   In evaluating a statute for content-neutrality, the primary question is whether the government seeks to regulate speech because it disagrees with the message conveyed. Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S. Ct. 2746, 105 L. Ed. 2d 661 (1989). A regulation of speech is content-neutral if it is "'justified without reference to the content of the regulated speech.'" Id. at 791 (quoting, with emphasis, Clark v. Community for Creative [*162] Non-Violence, 468 U.S. 288, 293, 104 S. Ct. 3065, 82 L. Ed. 2d 221 (1984)).

   The Attorney General argues that § 764 is justified without reference to the content of speech because its true purpose is not to prevent criminals from communicating about their crimes, but to prevent them from making financial profit from their[***15] crimes while their victims go uncompensated. It is, however, beyond question that to deny compensation for certain speech will chill such speech. In Riley v. National Federation of the Blind of N.C., 487 U.S. 781, 108 S. Ct. 2667, 101 L. Ed. 2d 669 (1988), the Supreme [**100] Court found unconstitutional a statute which, inter alia, limited fees professional fundraisers could charge. The Court there noted that the statute's effect was to chill speech and drive professional fundraisers out of the state. Id. at 794. The Attorney General also argues that § 764's provisions are based not on the State's disagreement with the message in the relevant works, but on the fact that financial gain may be derived therefrom. But as the Supreme Court has stated, "'the First Amendment's hostility to content-based regulation extends not only to restrictions on particular viewpoints, but also to prohibition of public discussion of an entire topic.'" Arkansas Writers' Project, Inc. v. Ragland, 481 U.S. 221, 230, 107 S. Ct. 1722, 95 L. Ed. 2d 209 (1987)[***16] (quoting Consolidated Edison Co. v. Public Service Comm'n of New York, 447 U.S. 530, 537, 100 S. Ct. 2326, 65 L. Ed. 2d 319 (1980)). Moreover, the Supreme Court has "'long recognized that even regulations aimed at proper governmental concerns can restrict unduly the exercise of rights protected by the First Amendment.'" Simon & Schuster, supra, 112 S. Ct. at 509 (quoting Minneapolis Star & Tribune Co. v. Minnesota Comm'r of Revenue, 460 U.S. 575, 592, 103 S. Ct. 1365, 75 L. Ed. 2d 295 (1983)).

   The principal justification for Maryland's statute hinges on the State's desire to ensure that criminals not profit from their crimes while their victims remain uncompensated. Yet, the statute's language, specifically that in subsections (a) (5) (i) and (ii), appears to be content-based in that it requires the Attorney [*163] General to analyze the content of the work in order to determine its applicability to the statute.

   Content-based statutes are presumptively inconsistent with the First Amendment because they "raise[] the specter that the Government may effectively [***17] drive certain ideas or viewpoints from the marketplace." Simon & Schuster, supra, 112 U.S. at 508. Such statutes therefore warrant strict judicial scrutiny. Consolidated Edison Co., supra, 447 U.S. at 536.

   We explained in State v. Sheldon, 332 Md. 45, 58, 629 A.2d 753 (1993), that the presumption against constitutionality of content-based statutes is not absolute. The Supreme Court has recognized exceptions to this presumption when, by way of example, a State proscribes a particular form of speech which falls under a class of speech that is entirely proscribable, such as obscenity or defamation. R.A.V. v. City of St. Paul, Minnesota, ___ U.S. ___, ___, 112 S. Ct. 2538, 120 L. Ed. 2d 305 (1992). If the "basis for the content discrimination consists of the very reason the entire class of speech at issue is proscribable," there is "no significant danger of idea or viewpoint discrimination." Id. at 2545. While the State could, for example, prohibit one mode of "fighting words" and not another, it could not single out certain fighting[***18] words for their message. Id. at 2549. Another exception, more relevant to this case, arises when a seemingly content-based statute has content-neutral intent, aiming only at the "secondary effects" of the targeted speech; such a statute is "'justified without reference to the content of the regulated speech.'" Ward, supra, 491 U.S. at 791 (quoting, with emphasis, Clark, supra, 468 U.S. at 293); see also City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 49, 106 S. Ct. 925, 89 L. Ed. 2d 29 (1986). And the appropriate inquiry when reviewing such statutes is whether the statute is designed to serve a "substantial government interest" and allows for "reasonable alternative avenues of communication." Renton, supra, 475 U.S. at 50. [*164]

   Renton involved a zoning ordinance requiring that theatres specializing in "adult" films be located a certain distance from residential areas, churches, parks and schools. While acknowledging that the statute treated these theatres differently from other theatres[***19] based on the content of the films shown, the Court concluded that the ordinance was not aimed at the content of the films but at their "secondary effects" on the community, such as reduced property values. 475 U.S. at 49. Ward involved a municipal noise regulation which limited sound volume at outdoor concerts by requiring that all [**101] performers use city-owned sound mixing equipment and that a technician hired by the city control the sound mixing equipment at every concert. The Court concluded that although the ordinance gave the technician control over the quality of the artistic expression, the purpose of the statute was not to control artistic expression but to control noise levels and maintain the character of the area in which the concerts took place. 491 U.S. at 792. Moreover, the Court observed that the city technician deferred to artists in any creative decisions concerning sound mix and that all performers who had used the city's equipment had been completely satisfied. Id. at 792-93. Therefore the [***20]statute was reviewed under the less stringent test applicable to governmental regulation of time, place and manner of protected speech. Id. at 798-99.
 
The Court in Simon & Schuster expressly declined to address the State's contention that the New York statute was content-neutral under the "secondary effects" exception it recognized in Renton and Ward , supra. It said: 

   "Because the Son of Sam law is so overinclusive we need not address the Board's contention that the statute is content neutral under . . .[Renton and Ward]. In these cases we determined that statutes were content neutral where they were intended to serve purposes unrelated to the content of the regulated speech, despite their incidental effects on some speakers but not others. Even under Ward and Renton, however, regulations must be narrowly tailored [*165] to advance the interest asserted by the State. . . . A regulation is not narrowly tailored--even under the more lenient tailoring standards applied in Ward and Renton--where, as here, a substantial portion of the[***21] burden on speech does not serve to advance the State's content-neutral goals. Thus whether the Son of Sam law is analyzed as content neutral . . . or content based . . . it is too overinclusive to satisfy the requirements of the First Amendment." 112 S. Ct. at 511 n.1 (citations omitted). 
 
The Court therefore evaluated the New York statute under a stricter standard because it created a "financial disincentive to create or publish works of a particular content. In order to justify such differential treatment, 'the State must show that its regulation is necessary to serve a compelling state interest and is narrowly drawn to achieve that end.'" Simon & Schuster, supra, 112 S. Ct. at 509 (quoting Arkansas Writers' Project Inc., supra, 481 U.S. at 231).

   Therefore, under Simon & Schuster, if the Maryland statute is overbroad to the extent that a substantial portion of the burden it places on speech does not advance the State's interests--preventing criminals from profiting from crimes and compensating victims of crimes--then it would not survive a First Amendment challenge.
 
Amicus argues that the statute's overbreadth results[***22] primarily from its broad definition of "notoriety of crimes contracts," combined with the procedures it sets forth for review of contracts by the Attorney General.

   The provisions regarding review by the Attorney General were added by the legislature when it amended § 764's definition of applicable contracts in an effort to cure the unconstitutional overbreadth found by the Supreme Court in the original New York statute. See Floor Report on H.B. 1207, Senate Judicial Proceedings Committee (1992 Session). Subsection (c) (2) provides that the Attorney General shall render a decision as to whether a contract is a notoriety of crimes contract "after the passage of 30 days, but before the expiration of 180[*166] days from receipt of the contract or moneys"; it also provides that the Attorney General may render a decision after 180 days "for cause." Subsection (c) (3) sets forth the presumption that a contract is a notoriety of crimes contract, which can be rebutted if the defendant establishes "to the satisfaction of the Attorney General" that the contract's subject matter relates "only tangentially or incidentally" to the crime.

   The Attorney General suggests that the limiting language [***23] of subsection (c) (3) cures the overbreadth problems in the definitional language of subsections (a) (5) (i) and (ii), because [**102] it removes from the statute's reach any contracts whose subject matter relates only tangentially or incidentally to the crime.

   Amicus disagrees, observing that the statute requires that contracts for works on any subject which contain a defendant's thoughts, feelings, opinions or emotions about a crime, however remotely related to the subject of the work, must still be submitted to the Attorney General, thus burdening a substantial portion of speech without furthering the State's interests. This burden, amicus contends, arises in the length of time in which the person submitting the work must forego earnings while awaiting a determination, and in the statutory presumption in favor of the State.

   The language defining notoriety of crimes contracts in subsections (a) (5) (i) and (ii) is virtually identical to the language invalidated by the Supreme Court in Simon & Schuster. See 112 S. Ct. at 504-05. Although, as the Attorney General asserts, the limiting language of subsection (c) (3) would provide a means of [***24] escape for the famous works of literature which the Court noted would be swept into the definition's overbroad grasp, these works would nonetheless be burdened during the review process. The question becomes, then, whether the burden is acceptable--that is, whether the submission and review requirement is both necessary and narrowly tailored to serve the State's interest without impermissibly burdening speech unrelated to the advancement of that interest. [*167]
 
   A statute is overbroad to the extent that, by its very existence, it inhibits constitutionally protected speech. Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 798-99, 104 S. Ct. 2118, 80 L. Ed. 2d 772 (1984). But "the mere fact that one can conceive of some impermissible applications of a statute is not sufficient to render it susceptible of an overbreadth challenge." Id. at 800. The overbreadth must be substantial, i.e., there must be "realistic danger that the statute itself will significantly compromise" recognized First Amendment rights of parties not before the court for it to be facially[***25] challenged as overbroad. Id. The Supreme Court found the New York statute to be overinclusive in the sense that it "reached a wide range of literature that does not enable a criminal to profit from his crime while a victim remains uncompensated." Simon & Schuster, supra, 112 S. Ct. at 511.

   If § 764 is overbroad, the essence of such overbreadth lies in the initial review process--assuming, of course, that contracts for works which do not ultimately meet the definition of notoriety of crimes contracts will be freed eventually from all statutory restraint. The question, therefore, is whether the initial restraint can be fully justified by the State as necessary to further its important interests.

   Although § 764 does not restrain individuals from writing or publishing works when those works include references to their crimes, it does bar them from receiving any earnings from such works, at least during the period of review by the Attorney General. If this restriction is a prior restraint on speech, the State bears a heavy burden in justifying its imposition, for "any system of prior restraint of expression . . . bears a heavy presumption against its constitutional validity." [***26] Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70, 83 S. Ct. 631, 9 L. Ed. 2d 584 (1963)). A prior restraint of unprotected speech must include sufficient procedural safeguards to avoid unduly suppressing protected speech. Freedman v. State of Maryland, 380 U.S. 51, 58, 85 S. Ct. 734, 13 L. Ed. 2d 649 (1965). Generally, such a restraint is acceptable [*168] only when the speech sought to be barred falls outside First Amendment protection. See Freedman, supra; Near v. State of Minnesota, 283 U.S. 697, 716-17, 51 S. Ct. 625, 75 L. Ed. 1357 (1931).

   In Riley, supra, 487 U.S. at 801-02, the Supreme Court held that a statute which prohibited paid fundraisers from soliciting funds without first obtaining a license, but allowed unpaid volunteer fundraisers to solicit immediately upon applying for a license, was invalid because it did not include procedural safeguards necessary to ensure that the professional fundraisers' First Amendment rights were[***27] not violated. [**103] Amicus maintains that this makes clear that to be an invalid prior restraint a regulation need not prohibit speakers from speaking; a regulation which prohibits speakers from receiving compensation for their efforts is also an invalid prior restraint. The speakers in Riley were not barred from speaking; they could still solicit funds on a voluntary basis, as the authors of the works in the instant case may still communicate their views without the benefit of compensation. But the Court did not say that any restraint in the form of the licensing requirement was impermissible. It acknowledged that although speakers generally were not required to obtain a license to speak, states could impose valid time, place and manner restrictions upon them. 487 U.S. at 802. But, it said, "Even assuming that the State's interest [in regulating those who solicit money] does justify requiring fundraisers to obtain a license before soliciting, such a regulation must provide that the licensor 'will, within a specified brief period, either issue a license or go to court.'" Id. at 802[***28] (quoting Freedman, supra , 380 U.S. at 59). Therefore, such a restriction may be acceptable if accompanied by sufficient procedural safeguards to ensure that administrative discretion is not unlimited.

   In Freedman, supra, the Supreme Court set forth procedural requirements for prior restraints on speech in a motion picture censorship system. The Court held that the State must bear the burden of proving that a film is unprotected expression. It further held that while the State may require [*169] advance submission of films, this requirement may not be administered in such a way as to make the State's decision final; only a procedure requiring a judicial determination constitutes a valid restraint. And finally, the procedure must assure a "prompt final judicial determination." 380 U.S. at 58-59. The Freedman Court noted there was no judicial participation in the procedure set forth in the statute because the censor's decision was final unless the film's exhibitor "assumed the burden of instituting judicial proceedings and persuading the court that the film [***29] [was] protected expression." Id. at 59-60. The Court further noted that there was no assurance of prompt judicial review, and observed that a delay of six months before final appellate review of a censorship decision was too long. Id. at 55.

   Section 764's process of review would appear to conflict with the standards set forth in Freedman in several respects. First, while Freedman makes clear that the State bears the burden of proving that the work falls within the regulatory sweep of the statute, § 764 imposes upon the defendant the burden of proving that his or her speech falls outside the statute. As earlier stated, § 764 (c) (3) provides for a "rebuttable presumption" that the contract is a notoriety of crimes contract, and the defendant bears the burden of rebutting this presumption by "establishing to the satisfaction of the Attorney General" that the work which is the subject of the contract "only tangentially or incidentally" relates to the crime. Moreover, under § 764, any restraint imposed by the Attorney General is final unless the defendant or[***30] publisher seeks judicial review. And if judicial review is sought, it may not take place within a time frame that would be considered acceptable under Freedman. While the Court in Freedman considered a period of six months until final appellate review to constitute an impermissible delay, subsection (c) (2) (i) provides for up to six months for administrative review by the Attorney General prior to any judicial review. Subsection (c) (2) (ii) provides for an unlimited extension of that period "for cause." It is thus clear that this statutory scheme imposes a [*170]heavy burden upon protected expression and it may well be argued that the process of review provides insufficient procedural safeguards to withstand constitutional scrutiny.

   We address amicus' final concerns as to the statute's overbreadth. It points to the statute's apparent applicability to works in which a defendant refers to a crime involving minimal property damage or personal injury, yet treats it not as incidental but rather as a pivotal event in the writer's life. Although the loss to any victim was negligible, the writer's total earnings from the work apparently could nonetheless be escrowed. Amicus points to [***31] this application as evidence that [**104] the statute is not tailored narrowly to the State's interest in compensating victims for their losses. The Attorney General counters that such a minor crime would not likely provide notoriety for a defendant to profit from the crime, but that, regardless, the State's interest is not dependent upon the degree of injury to the victim.

   However unlikely the above situation may be, it is possible, and subsection (a) (5) (ii) appears to encompass such a work. But, as we earlier noted, "the mere fact that one can conceive of some impermissible applications of a statute is not sufficient to render it susceptible of an overbreadth challenge," Taxpayers For Vincent, supra, 466 U.S. at 800, and this application, alone, would appear insufficient to do so.

   And finally, § 764 (l) provides that funds escrowed which are unclaimed by victims of a defendant's crime will be transferred eventually to a general victim's compensation fund. Although this requirement is not tailored narrowly to ensure that a defendant not profit from the crime at the expense of the particular victim of that crime, it does not appear that such is required under Simon & Schuster[***32] . As the Court stated in that case, "We need only conclude that the State has a compelling interest in depriving criminals of the profits of their crimes, and in using these funds to compensate victims." 112 S. Ct. at 510. [*171]

   IV

   We have long adhered to the policy of not deciding constitutional issues unnecessarily. Simms v. State, 288 Md. 712, 725, 421 A.2d 957 (1980). If a decision on a constitutional question is not necessary for proper disposition of the case, we will not reach it. Comm'r of Labor & Ind. v. Fitzwater, 280 Md. 14, 19, 371 A.2d 137 (1977). Therefore, before reaching a decision on the basis of § 764's constitutionality, we first determine whether the action brought by the Attorney General against Price is authorized by the statute.

   The Attorney General seeks to restrain Price from continuing to violate subsection (d) by concealing the existence of what may be a notoriety of crimes contract. That subsection provides that "a person may not:
 
(1) Conceal the existence of a contract described in subsection (b) of this section; or (2) Except[***33] as otherwise provided in this section, make or receive payments under a contract described in subsection (b) of this section." 
 
Subsection (b) provides that a "person who enters [into] a notoriety of crimes contract with a defendant shall:
 
(1) Submit a copy of the contract or summary of the terms of an oral agreement to the Attorney General; and (2) Pay over to the Attorney General any moneys or other consideration . . . which by the terms of the contract would otherwise be owing to the defendant . . .."
 
The Attorney General claims that subsections (b) and (d) clearly authorize him to obtain the contract from Price and that the trial judge should have enforced those provisions against Price. To us, however, the issue is not so clear. Therefore, a review of the principles of statutory construction is appropriate.

   The cardinal rule of statutory interpretation is to ascertain and carry out the legislature's true intention. Condon v. State, 332 Md. 481, 491, 632 A.2d 753 (1993). To do so, we look primarily to the words of the statute. Id. at 491. If the language of the statute is unambiguous, [***34] we [*172] need not look elsewhere to ascertain legislative intent. Wheeler v. State, 281 Md. 593, 596, 380 A.2d 1052 (1977). Where the language is ambiguous, however, we are not limited to the words of the statute, but must often look to other sources. Kaczorowski v. City of Baltimore, 309 Md. 505, 514-15, 525 A.2d 628 (1987).

   All parts of a statute are to be read together to determine intent, and reconciled and harmonized to the extent possible. Condon, supra, 332 Md. at 491. Where a statute may be susceptible of more than one meaning, we may consider the consequences of each interpretation and adopt that construction which avoids an unreasonable result. Kaczorowski, supra, 309 Md. at 513. If a statute is susceptible [**105] of two reasonable interpretations, one of which would involve a decision as to its constitutionality, the preferred construction is that which avoids the determination of constitutionality. Schochet v. State, 320 Md. 714, 725, 580 A.2d 176 (1990). A statute must be construed in context, and the plainest language may be governed[***35] by the context in which it appears. Legislative reports and other legislative history may help provide the appropriate context. NCR Corp. v. Comptroller, 313 Md. 118, 125, 544 A.2d 764 (1988); Kaczorowski, supra, 309 Md. at 515.

   Here we are required to apply these principles to § 764 (b) and (d) to determine whether either or both subsections give the Attorney General the authority to obtain a suspected notoriety of crimes contract directly from a defendant.

   Subsection (b), in plain and unambiguous language, requires persons entering into contracts with defendants to submit the contract to the Attorney General if it falls within the definition of notoriety of crimes contracts. Nothing in this language requires defendants to submit such contracts to the Attorney General. And where the language of a statute is unambiguous we will not add words to reflect an intent not evidenced in the words of the statute. Condon, supra, 332 Md. at 491. We conclude, therefore, that [*173] subsection (b) does not countenance obtaining the contract from Price.

   Subsection (d) is not so clear, however. It prohibits "persons" from concealing the existence[***36] of such contracts and from making or receiving payments under such contracts. Neither this subsection nor the definitions subsection contained in (a) of the statute provides any restriction as to persons covered by the subsection. n5 It is the Attorney General's position that subsection (d) applies to all persons, including the defendant, and the fact that the subsection prohibits not only the making but the receipt of payments supports this interpretation. Nevertheless, longstanding principles of statutory construction require that subsections (b) and (d) be read together and reconciled if possible, Condon, supra, 332 Md. at 491, and here arises the ambiguity. Subsection (b) applies exclusively to persons contracting with a defendant, and not to defendants. Therefore, we must determine whether subsection (d) can be applied to prohibit a defendant from concealing a contract that the defendant is not required to produce under subsection (b). In view of the ambiguity in the statute, we look to other sources to glean legislative intent, including legislative reports. NCR Corp., supra, 313 Md. at 125; Kaczorowski, supra, 309 Md. at 514-15. In this regard, the legislative [***37]history underlying enactment of § 764 discloses in the bill analysis by the Senate Judicial Proceedings Committee that subsection (d): "Prohibits a person from concealing the existence of a contract with a defendant or making or receiving payments except as provided in this section." Thus, the committee recognized a distinction between a "person" and a "defendant," suggesting that the provision refers only to a person other than the defendant. This conclusion is bolstered by the following additional language in the committee's bill analysis:

n5 Subsection (a) (3)'s definition of "person" is expansive rather than restrictive. However, while the definition of "person" in subsection (a) (3) suggests strongly an intent to include all possible entities which might be contracting with defendants, it suggests no intent to include defendants themselves.

[*174]

   "The bill prohibits a person from concealing the existence of a contract with a defendant or making or receiving payments under the contract except as authorized under the[***38] bill, and makes void any action taken by a defendant to defeat the purpose of the bill."
 
Again, the language suggests a distinction between a "person" and a "defendant," reinforced by the fact that the second clause expressly refers to conduct by defendants alone. n6 

n6 The language of the second clause refers to § 764 (h), which provides:

   "Any action taken by a defendant, including an execution of a power of attorney, creation of corporate entities, or designation of the defendant's interest, to defeat the purpose of this section shall be void as against public policy."

   [**106] That the distinction between a "person" and a "defendant" was intended by the General Assembly is clear from the separate definitions given those terms in the definitions section of the statute. Thus, we find these distinctions to be persuasive indicators that the legislature intended subsection (d) not to apply to defendants, but only to persons contracting with defendants. This interpretation renders subsection (d) consistent with subsection [***39] (b).

   Considering the consequences of each interpretation, the construction limiting subsection (d) to nondefendants is an interpretation that is more reasonable and more consistent with public policy. To require a criminal defendant to produce, before trial, a contract for a work related to the criminal act for which the defendant will be tried is simply inconsistent with public policy protecting the rights of the accused. Moreover, to require production by the defendant raises serious questions concerning the defendant's constitutional privilege against self-incrimination. The constitutional privilege applies only to "testimonial communication" which incriminates. Baltimore City Dept. of Social Serv. v. Bouknight, 493 U.S. 549, 554, 110 S. Ct. 900, 107 L. Ed. 2d 992 (1990) (quoting Fisher v. United States, 425 U.S. 391, 408, 96 S. Ct. 1569, 48 L. Ed. 2d 39 (1976)). When the government demands production of a thing, the privilege may still be [*175] implicated because the act of production testifies to the "existence, possession or authenticity of the thing produced"; [***40] however, a person may not claim the privilege based on "incrimination that may result from the contents or nature of the thing demanded." Bouknight, supra, 493 U.S. at 554. Therefore, it is only the testimonial nature of the act of production for which the privilege may be asserted.

   The Supreme Court has held that the privilege may not be invoked to avoid complying with a State's regulatory regime which advances public purposes unrelated to the enforcement of criminal laws. See Shapiro v. United States, 335 U.S. 1, 32-33, 68 S. Ct. 1375, 92 L. Ed. 1787 (1948) (no Fifth Amendment privilege attached to production of records defendant was required to keep for public inspection). The Court has, however, limited Shapiro's applicability where the regulation at issue is directed to a group "inherently suspect of criminal activities" and falls in an "area permeated with criminal statutes." Marchetti v. United States, 390 U.S. 39, 45, 88 S. Ct. 697, 19 L. Ed. 2d 889 (1968) (quoting Albertson v. Subversive Activities Control Board, 382 U.S. 70, 79, 86 S. Ct. 194, 15 L. Ed. 2d 165 (1965)).[***41] " In Marchetti, supra, and Grosso v. United States, 390 U.S. 62, 68, 88 S. Ct. 709, 19 L. Ed. 2d 906 (1968) the Court held that the provisions of federal wagering tax statutes could not be used to punish an individual who failed to register and pay taxes under the statute when the individual properly asserted the privilege against self-incrimination on the basis that, by registering, he would be providing information about his illegal gambling activities. See also Haynes v. United States, 390 U.S. 85, 98-99, 88 S. Ct. 722, 19 L. Ed. 2d 923 (1968) (a proper claim of constitutional privilege against self-incrimination provides a full defense to prosecutions for failure to register a firearm or possession of an unregistered firearm under federal statute where registration requirement is aimed principally at those who have obtained possession of a firearm without complying with other statutory requirements).

   The Supreme Court reexamined this issue in Bouknight, supra, which involved a mother who[***42] invoked the privilege to[*176] avoid complying with a court order to produce her child, who had been adjudicated as a child in need of assistance. The Court held that the mother, who was suspected of criminal acts against the child, could not invoke the privilege in refusing to produce the child because the child's care and safety became the object of the State's regulatory interests when he was adjudicated a child in need of assistance. 493 U.S. at 550. The Court reasoned that when the State entrusted to the mother care of the child, subject to certain conditions, the mother, in accepting such care, submitted to the routine operation of the regulatory system with the incident obligation to permit inspection of the child. Id. The Court distinguished Bouknight from Marchetti, supra, noting that "persons who care for children pursuant to a custody order . . . [**107] are hardly a 'selective group inherently suspect of criminal activities.'" Bouknight, supra, 493 U.S. at 556 (quoting Marchetti, supra, 390 U.S. at 57).

   Turning to the statute in the instant case, we cannot conclude that it falls within the type [***43] of "regulatory regime constructed to effect the State's public purposes unrelated to the enforcement of its criminal laws," envisioned by the Supreme Court in Bouknight, supra, 493 U.S. at 550. Rather, it concerns an "area permeated with criminal statutes," Marchetti, supra, 390 U.S at 45 (quoting Albertson v. Subversive Activities Control Board, 382 U.S. 70, 79, 86 S. Ct. 194, 15 L. Ed. 2d 165 (1965)), and is thus more similar to Marchetti, Grosso, and Haynes, supra. Maryland's "Son of Sam" statute is codified within Article 27, the criminal law article of the Maryland Code. Its purpose is the amelioration of the effects of criminal behavior: the financial rewards to the criminal and the unrequited losses of the victim. And, unquestionably, it is aimed exclusively at a select group "inherently suspect of criminal activities." Bouknight, supra, 493 U.S. at 556. We therefore hold that the State, in compelling a defendant to produce a contract under § 764, would implicate the defendant's constitutional privilege against self-incrimination [***44]if the act of production [*177] would amount to testimony which would incriminate the defendant. Indeed, we do not see how a defendant can produce, at the State's behest, a contract which meets the description of a notoriety of crimes contract without thereby implicitly acknowledging the commission of a crime.

   As we observed in Police Comm'r v. Dowling, 281 Md. 412, 379 A.2d 1007 (1977): 
 
"Where a statute is subject to two constructions, one of which will result in the legality and effectiveness of the statutory provision being construed . . . courts will prefer the construction which will result in its legality and effectiveness. We also have held that a statute will be construed so as to avoid a conflict with the Constitution whenever that course is reasonably possible."
 
Id. at 420 (citations omitted) (quoting Williams and Fulwood v. Director, 276 Md. 272, 295, 347 A.2d 179, cert. denied, 425 U.S. 976, 48 L. Ed. 2d 801, 96 S. Ct. 2178 (1975)).
 
In light of these principles, we shall not reach the constitutionality of § 764 on its merits. Instead, [***45] we decide only that the statute does not require a defendant to submit to the Attorney General a suspected notoriety of crimes contract,
 
and consequently the suit against Price was not authorized by the statute. Therefore, the Circuit Court erred in addressing the constitutional issue raised by Price, and we shall vacate the judgment below and remand the matter to it with directions to dismiss the complaint as not within the authority of the Attorney General to institute.

   In so concluding, we realize that it will be difficult for the Attorney General to obtain a contract where the identity of the other contracting party is not known. But the other party to the contract is required by the statute to produce it and, assuming the constitutionality of § 764, is subject to a severe penalty for failure to do so.

   JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY VACATED; CASE REMANDED TO THAT COURT WITH DIRECTIONS TO DISMISS THE ACTION AGAINST RONALD PRICE AS NOT AUTHORIZED [*178] BY § 764 OF ARTICLE 27. COSTS TO BE PAID BY THE STATE OF MARYLAND. 

RAYMOND J. WILLIAMS et al. v. ANNE ARUNDEL COUNTY, MARYLANDet al. 
No. 56, September Term, 1993
 
COURT OF APPEALS OF MARYLAND
 
1994 Md. LEXIS 27
 
   February  14, 1994, Filed

   SUBSEQUENT HISTORY: [*1] Withdrawn by Order of the Court April 8, 1994; Substituted Opinion Reported at: 1994 Md. LEXIS 60.

PRIOR HISTORY: Certiorari to Court of Special Appeals. (Circuit Court for  Anne    Arundel  County). Bruce C. Williams, JUDGE 

PACIFIC MORTGAGE AND INVESTMENT AND GROUP, LTD. v. JAMES W.ROBERTSON et ux. 
No. 102, September Term, 1993
 
COURT OF APPEALS OF MARYLAND
 
333 Md. 651; 637 A.2d 113; 1994 Md. LEXIS 29

 February  14, 1994, Filed

   PRIOR HISTORY: [**1]

   Certiorari to the Court of Special Appeals (Circuit Court for  Anne Arundel  County. H. Chester Goudy, Jr., JUDGE

COUNSEL: ARGUED BY Michael P. Zell of Baltimore, MD, FOR PETITIONER.
 
ARGUED BY Dana Whitehead (Gerald R. Walsh, Gerald R. Walsh, P.A., all on brief), all of Baltimore, MD, FOR RESPONDENT.

JUDGES: ARGUED BEFORE Eldridge, Rodowsky, Chasanow, Karwacki, Bell, Raker, and Orth, Charles E. Jr., Judge of the Court of Appeals (retired and specially assigned), JJ.

OPINIONBY: JOHN C. ELDRIDGE

OPINION: [*113] ORDER

   The petition for writ of certiorari in the above entitled case having been granted and heard, it is this 14th day of February, 1994

   ORDERED, by the Court of Appeals of Maryland, that the writ of certiorari be, and it is hereby, dismissed with costs, the petition having been improvidently granted.

   John C. Eldridge

   Senior Judge 

COALITION FOR OPEN DOORS et al. v. ANNAPOLIS LODGE NO. 622,BENEVOLENT AND PROTECTIVE ORDER OF ELKS 
No. 94, September Term, 1992
 
COURT OF APPEALS OF MARYLAND
 
333 Md. 359; 635 A.2d 412; 1994 Md. LEXIS 5
 
   January  12, 1994, Filed

   SUBSEQUENT HISTORY: [***1] As Corrected January 26, 1994.

PRIOR HISTORY: Appeal from the Circuit Court for  Anne Arundel  County. James C. Cawood, Jr., JUDGE

DISPOSITION: ORDER OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY GRANTING INTERVENTION AFFIRMED.  OTHERWISE, THE JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY IS REVERSED, AND THE CASE IS REMANDED TO THAT COURT FOR THE ENTRY OF A DECLARATORY JUDGMENT IN CONFORMANCE WITH THIS OPINION.  COSTS TO BE PAID BY ANNAPOLIS LODGE NO. 622, BENEVOLENT AND PROTECTIVE ORDER OF ELKS.

CORE TERMS:  ordinance, club, license, membership, beverage, alcoholic beverage, alcoholic, state statute, private club, regulation, intervenor, lodge, coverage, licensee, public accommodations, motion to intervene, state law, intervene, invalid, gender, local law, preempted, discriminate, veterans, lounge, losing party, consumption of alcohol, local ordinance, establishment, eligible

COUNSEL: Curtis A. Bradley (James C. McKay, Covington & Burling, all on brief) Washington, District of Columbia and (Susan Goering, Deborah A. Jeon, American Civil Liberties Union Foundation of Maryland, all on brief) Baltimore, for appellant.

   Ronald G. Dawson (Smith, Somerville and Case, both on brief) Baltimore, and (Robert A. Dietz, Dietz and Ebersberger, on brief) Annapolis, for appellee.

JUDGES: Murphy, C.J., Eldridge, Rodowsky, McAuliffe, * Chasanow, Karwacki and Charles E. Orth, Jr., Judge of the Court of Appeals (retired, specially assigned), JJ.

* McAuliffe, J., now retired, participated in the hearing and conference of this case while an active member of this Court; after being recalled pursuant to the Constitution, Article IV, Section 3A, he also participated in the decision and adoption of this opinion.

[***2]

OPINIONBY: ELDRIDGE
 
OPINION: [*361] [**413] The principal issue in this case is whether the City of Annapolis has authority to enact an ordinance which conditions the grant or renewal of a license for a private club to sell alcoholic beverages upon proof that the club not discriminate in its membership policies on the basis of race, gender, [*362] religion, physical handicap, or national origin.  The Circuit Court for Anne Arundel County held that, in enacting such an ordinance, the City of Annapolis exceeded the powers delegated to the City by the General Assembly in Maryland Code (1957, 1990 Repl. Vol., 1993 Cum.Supp.), Art. 2B. n1 The circuit court further held that the local ordinance conflicted with the Maryland public accommodations law. n2 Finding ourselves in disagreement with both of these holdings, we shall reverse the judgment of the circuit court.

n1 Normally, state legislation delineating the powers of municipalities is set forth in Code (1957, 1990 Repl.Vol., 1993 Cum.Supp.), Art. 23A. Nevertheless, Art. 23A does not grant to municipalities the authority to regulate alcoholic beverages. See also Art. XI-E, § 6, of the Maryland Constitution.  The General Assembly has preempted this area by Art. 2B of the Code, but, at the same time, the General Assembly has in Art. 2B delegated some of its legislative authority to other bodies.  See Sullivan v. Bd. of License Comm'rs, 293 Md. 113, 121-123, 442 A.2d 558, 563-564 (1982); Montgomery Co. v. Bd., Super. of Elect., 53 Md.App. 123, 451 A.2d 1279 (1982).

[***3] 

n2 The state public accommodations law is located at Code (1957, 1991 Repl.Vol., 1993 Cum.Supp.), Art. 49B, §§ 5 and 8.  The provision relied upon by the circuit court, Art. 49B, § 5(e), states that "this section shall not apply to a private club."

   I.

   Annapolis Lodge No. 622, Benevolent and Protective Order of Elks ("Annapolis Lodge") is a non-stock/non-profit Maryland corporation.  It is also a subordinate entity within a national fraternal organization, the Benevolent and Protective Order of Elks of the United States of America ("National Elks").  The National Elks limit membership to male citizens of the United States; women are not permitted to be members.  The Elks' male-only policy is binding on each subordinate lodge, and the by-laws of the Annapolis Lodge require that a member be male.

   The Annapolis Lodge holds a Class C (club class) alcoholic beverage license to operate a cocktail lounge on the premises of its Annapolis clubhouse.  The lounge serves members of the Annapolis Lodge, their guests, wives, and dependents, as well [*363] as members of the Lodge's Women's Auxiliary. n3 According[***4] to an affidavit filed in this case by an officer of the Annapolis Lodge, the lounge does not serve members of the general public.

 n3 The record in this case discloses nothing concerning the nature of the Lodge's "Women's Auxiliary" or the requirements for membership in the "Women's Auxiliary."

   On April 9, 1990, the Annapolis City Council enacted Ordinance 0-11-90 Revised, which provides, in relevant part, as follows:
 
[**414] "Sec. 7.12.430.  DISCRIMINATORY PRACTICE PROHIBITED.
 
A. An establishment licensed under the [various club class] provisions . . . shall not exclude from membership solely on the basis of race, sex, religion, physical handicap or national origin in its membership." n4

 
 
Under the ordinance, any new or renewal alcoholic beverage license application for a private club must "be accompanied by an affidavit declaring that the establishment for which the license is sought is not required by any organizational by-laws to engage in any [discriminatory] practice." Code of the City of[***5] Annapolis (1986, Cum.Supp. No. 11, 1993), § 7.12.430(A)(1). The Annapolis Alcoholic Beverage Control Board is prohibited from issuing a license to a club that has not submitted the required documentation.  § 7.12.430(A)(2). n5

n4 Ordinance 0-11-90 Revised repealed and reenacted with amendments § 7.12.240 and added § 7.12.430 to the Code of the City of Annapolis (1986, Cum.Supp. No. 11, 1993).

   Hereafter, Ordinance 0-11-90 Revised will be referred to simply as "Ordinance 0-11-90" or as "the ordinance."

n5 At the outset, we note that while Ordinance 0-11-90 may represent a novel approach in Maryland, there are laws in several other states which condition the grant of an alcoholic beverage license upon a nondiscriminatory membership or entrance policy.  See, e.g., B.P.O.E. Lodge No. 2043 of Brunswick v. Ingraham, 297 A.2d 607 (Me.1972), appeal dismissed, 411 U.S. 924, 93 S.Ct. 1893, 36 L.Ed.2d 386 (1973) (holding that the Maine Liquor Commission was within its lawful authority in denying renewal liquor licenses to 15 Elks lodges under a state statute prohibiting licensees from withholding membership on basis of race); Vaspourakan, Ltd. v. Alcoholic Beverages Control Comm'n, 401 Mass. 347, 516 N.E.2d 1153 (1987) (upholding liquor license revocation where a nightclub deliberately discriminated against African-Americans seeking entrance in violation of a state anti-discrimination statute); Beynon v. St. George-Dixie Lodge 1743, 854 P.2d 513 (Utah), cert. denied,    U.S.   , 114 S.Ct. 195, 126 L.Ed.2d 153 (1993) (concluding that, by holding a private club liquor license, the Elks qualified as an "enterprise regulated by the state," and thus were subject to the anti-discrimination provisions of the Utah Civil Rights Act).

[***6]

   [*364] Citing the desire to provide certain clubs a reasonable period of time in which to comply with the new law, the Annapolis City Council passed Ordinance 0-57-90 on January 14, 1991, delaying the effective date of Ordinance 0-11-90 from January 1991, until September 1, 1991, for any club
 
"which must apply to an international or national organization for a change in its by-laws, and which has demonstrated to the Alcoholic Beverage Control Board that it has made formal and complete application for an amendment to its by-laws to that international or national organization."
 
Thereafter, the Annapolis Lodge petitioned the National Elks for permission to amend its local by-laws so that women could be admitted to the Annapolis Lodge as members.  The National Elks denied this request.

   Unable to submit the affidavit required by § 7.12.430(A)(1), and thus potentially precluded from renewing its alcoholic beverage license, the Annapolis Lodge filed this action in the Circuit Court for Anne Arundel County on September 3, 1991, against the City of Annapolis.  The Annapolis Lodge sought a declaratory judgment invalidating the ordinance and an injunction requiring the City to consider[***7] the Lodge's license renewal application without regard to the ordinance. Subsequently, the Annapolis Lodge filed a motion for summary judgment, arguing that the ordinance was invalid on two alternative grounds.  First, the Lodge contended that the City of Annapolis was without authority under Art. 2B of the Maryland Code to enact Ordinance 0-11-90. Second, the Lodge argued that the ordinance conflicted with state law, in that it prohibited activities which were expressly authorized [*365] by the state public accommodations law.  The City of Annapolis agreed that there was no dispute as to any material fact, and the City requested summary judgment declaring that Ordinance 0-11-90 was valid.

   Following a hearing in the matter, the trial judge issued an opinion on April 16, 1992, in which he held the ordinance invalid on both grounds urged by the Annapolis Lodge. On April 29, 1992, the court issued a judgment declaring invalid Ordinance 0-11-90 and granting the Lodge's requested injunction. [**415]The circuit court took the position that, while the "delegation under Art. 2B is quite broad," City of Annapolis ordinances enacted pursuant to the authority granted by Art. 2B must[***8] have some relationship to the consumption of alcohol. The court stated that Ordinance 0-11-90 failed this test because "the ordinance regulates nothing that happens in the lounge." In addition, the circuit court's opinion held that a provision of the state public accommodations law, Art. 49B, § 5(e), embodied the General Assembly's intent to preclude a "lesser government" from regulating discrimination by private clubs.

   On May 11, 1992, a majority of the Annapolis City Council voted against taking an appeal from the circuit court's judgment invalidating Ordinance 0-11-90 and enjoining its enforcement. n6 The City Council has not, however, repealed the ordinance. Four days after the City decided not to appeal, the Coalition for Open Doors, the Maryland Commission on Human Relations, and two female Annapolis residents filed a motion to intervene as defendants in the case. n7 The four [*366] aldermen who had voted in favor of taking an appeal filed a separate motion to intervene as defendants.  The movants' purpose in seeking intervention was to prosecute an appeal.  In their memoranda and arguments before the circuit court, the movants appeared to rely on both Rule 2-214(a), relating[***9] to intervention as of right, and on Rule 2-214(b), relating to permissive intervention.  The circuit court, without specifying whether it was acting under subsection (a) or subsection (b) of Rule 2-214, granted the motion to intervene filed by the Coalition for Open Doors, the Maryland Commission on Human Relations, Pamela Andersen and Carol Gerson. n8 The motion of the aldermen to intervene was denied.

n6 Interestingly, the City Council voted five to four against appealing the decision of the circuit court.  This vote reflected a mere one vote change from the initial five to four vote in favor of enacting the anti-discrimination ordinance.

n7 The Coalition for Open Doors is an organization comprised of civil rights and women's rights groups, as well as individual advocates working for the integration of private clubs across racial, ethnic, gender, and religious lines. 

   The Maryland Commission on Human Relations is the state agency charged with the responsibility for enforcing the provisions in Art. 49B of the Code relating to discrimination, including the prohibition on discrimination in places of public accommodation.  Comm'n on Human Rel. v. Mass Transit, 294 Md. 225, 227 n. 2, 449 A.2d 385, 386 n. 2 (1982).

   Pamela Andersen, a lawyer, and Carol Gerson, a businesswoman, are women who desire to join the Elks or other Annapolis private clubs which have discriminated on the basis of gender.

[***10] 

n8 Since, both in the circuit court and in this Court, the Lodge's objection to intervention and the arguments regarding intervention centered on timeliness, and since both subsection (a) and subsection (b) of Rule 2-214 require that a motion to intervene be timely filed, the failure of the trial judge to specify which subsection he relied upon in rendering his decision to allow intervention is not pertinent to the issues raised in this Court.

   Both the intervenors and the Annapolis Lodge took appeals to the Court of Special Appeals.  The intervenors appealed from the injunction and the declaratory judgment invalidating Ordinance 0-11-90.  The Lodge appealed from the circuit court's order granting one of the motions to intervene. n9 This Court issued a writ of certiorari before any consideration of the appeals by the Court of Special Appeals, 328 Md. 462, 615 A.2d 262.

n9 The four aldermen did not appeal from the circuit court's order denying their motion to intervene.

[***11]

   II.

   Initially, we shall address the Lodge's challenge to the circuit court's order allowing intervention for the purpose of [*367] taking an appeal.  The Annapolis Lodge argues that the trial judge erred because the motion to intervene was not timely filed.  Citing some federal court decisions, the Lodge states that "[a]n analysis of the federal cases where post-judgment intervention has been allowed reveals that the federal courts have permitted such intervention only in exceptional circumstances." (Annapolis Lodge's brief in this Court at 24).  Contending that no "exceptional circumstances" were present here, the Lodge argues that "the trial judge abused his discretion when he granted the motion to intervene." (Ibid.).

   [**416] Maryland Rule 2-214 governs intervention in the circuit courts. The Rule provides in pertinent part as follows:

   "(a) Of Right. -- Upon timely motion, a person shall be permitted to intervene in an action: . . . (2) when the person claims an interest relating to the property or transaction that is the subject of the action, and the person is so situated that the disposition of the action may as a practical matter impair or impede the ability[***12] to protect that interest unless it is adequately represented by existing parties.

   "(b) Permissive.  --

   (1) Generally.  -- Upon timely motion a person may be permitted to intervene in an action when the person's claim or defense has a question of law or fact in common with the action.

   (2) Governmental Interest.  -- Upon timely motion the federal government, the State, a political subdivision of the State, or any officer or agency of any of them may be permitted to intervene in an action when the validity of a . . . statute . . . affecting the moving party is drawn in question in the action, or when a party to an action relies for ground of claim or defense on such . . . statute."

   As the language of Rule 2-214 requires, timely application is a prerequisite for intervention.  See Maryland Radiological Society v. Health Serv., 285 Md. 383, 388, 402 A.2d 907, 910 (1979). Timeliness depends upon the individual circumstances of each case, "and rests in the sound discretion of the trial court, which, unless abused, will not be disturbed [*368] on appellate review." Maryland Radiological Society v. Health Serv., supra, 285 Md. at 388, 402 A.2d at 910,[***13] citing NAACP v. New York, 413 U.S. 345, 365-366, 93 S.Ct. 2591, 2603, 37 L.Ed.2d 648, 662-663 (1973).

   Neither the federal cases (including the cases cited by the Annapolis Lodge) nor the decisions of this Court set forth any special standard or requirement, such as that urged by the Annapolis Lodge, for intervention after the trial court's decision.  Rather, under circumstances like those in the present case, where the losing party declines to appeal, courts generally permit an applicant to intervene for the purpose of appeal where the applicant has standing and where the applicant acts promptly after the trial court's decision.  See, e.g., United Airlines, Inc. v. McDonald, 432 U.S. 385, 395-396, 97 S.Ct. 2464, 2470-2471, 53 L.Ed.2d 423, 432-433 (1977) ("The critical inquiry in every such case is whether in view of all the circumstances the intervenor acted promptly after the entry of final judgment . . . .  Here, the respondent filed her motion within the time period in which the named plaintiffs could have taken an appeal"); Yniguez v. State of Ariz., 939 F.2d 727, 731 (9th Cir.1991)[***14] ("'post-judgment intervention for purposes of appeal may be appropriate if the intervenors . . . meet traditional standing criteria,'" quoting Legal Aid Soc'y of Alameda County v. Brennan, 608 F.2d 1319, 1328 (9th Cir.1979), cert. denied, 447 U.S. 921, 100 S.Ct. 3010, 65 L.Ed.2d 1112 (1980)); F.W. Woolworth Co. v. Miscellaneous Warehousemen's, 629 F.2d 1204, 1213 (7th Cir.1980, cert. denied, 451 U.S. 937, 101 S.Ct. 2016, 68 L.Ed.2d 324 (1981) ("an application for intervention is timely if it is brought shortly after the [existing party representing similar interests] indicates that she will not appeal"). n10

n10 We have pointed out that intervention decisions under Rule 24 of the Federal Rules of Civil Procedure serve as a guide to interpreting the Maryland intervention rule.  See Board of Trustees v. City of Baltimore, 317 Md. 72, 90, 562 A.2d 720, 728 (1989), cert. denied, 493 U.S. 1093, 110 S.Ct. 1167, 107 L.Ed.2d 1069 (1990); Maryland Radiological v. Health Serv., 285 Md. 383, 388 n. 5, 402 A.2d 907, 910 n. 5 (1979); Montgomery Co. v. Ian Corp., 282 Md. 459, 463, 385 A.2d 80, 82 (1978); Citizens Coordinating Comm. v. TKU, 276 Md. 705, 712, 351 A.2d 133, 138 (1976).

[***15]

   [*369] If, as the Annapolis Lodge argues, the cases dealing with post-judgment intervention are analyzed as requiring an "exceptional circumstance" before such intervention is allowed, the requisite "exceptional circumstance" would be the losing party's failure to appeal or the real possibility that the losing party will fail to pursue appellate remedies.  A recent pertinent decision by this Court is Board of Trustees v. City of Baltimore, 317 Md. 72, 562 A.2d 720 (1989), cert. denied, 493 U.S. 1093, 110 S.Ct. 1167, 107 L.Ed.2d 1069 (1990). The Board of Trustees case involved [**417]challenges, by the Board of Trustees of Baltimore City's employee pension systems, to city ordinances requiring that the pension systems divest their holdings in companies doing business in South Africa.  Before trial, four pension fund beneficiaries moved to intervene on the side of the Board.  The trial court denied the applicants' motion to intervene, and this Court held that the trial court erred.  Board of Trustees v. City of Baltimore, supra, 317 Md. at 91-92, 562 A.2d at 729.[***16] This Court pointed out that the Board of Trustees of the municipal pension system constituted a governmental agency, that the Board had obligations to the City as well as to the beneficiaries, and that the Board's prosecution of the litigation and the appeal to this Court had been a political issue in Baltimore City. 317 Md. at 91, 562 A.2d at 729. We thus stated (ibid.): "The prospect that the Trustees might not ask the United States Supreme Court to review an unfavorable ruling in this Court is not entirely unlikely in light of past events.  A decision not to seek Supreme Court review would adversely affect the [applicants for intervention] . . . ." Since the applicants for intervention in Board of Trustees sought only to argue the appeal as parties in this Court, and to seek further review in the Supreme Court of any unfavorable ruling, this Court under Rule 8-604(e) modified the circuit court's judgment so as to grant the motion to intervene.

   [*370] The possibility feared by the intervenors in Board of Trustees did occur.  After our decision adverse to the position of the Trustees and the beneficiaries, the Trustees decided[***17] not to seek further appellate review.  Because this Court had granted intervention for the purpose of appellate review, the intervenors were able to seek review by the Supreme Court of the United States.  See Lubman v. Mayor and City Council of Baltimore City, 493 U.S. 1093, 110 S.Ct. 1167, 107 L.Ed.2d 1069 (1990).

   The Board of Trustees decision clearly supports the position of the intervenors in the present case.  Both cases concerned the validity of local government ordinances affecting numerous persons.  In both cases, the desirability of the ordinances were hotly contested political issues.  In each case, a governmental entity was taking the same position concerning the validity of the ordinances which the applicants for intervention were taking.  There was, however, a danger in both cases that the governmental entities would not continue because of political considerations.  In Board of Trustees, the real possibility that the losing party would not continue to seek appellate review was deemed sufficient to justify intervention for purposes of appeal.  Under the circumstances of the case at bar, the decision [***18] of the losing party not to appeal certainly justified intervention for purposes of appeal.

   As previously discussed, where the losing party decides not to appeal, the cases have upheld post-judgment intervention for purposes of appeal when the applicant has the requisite standing and files the motion to intervene promptly after the losing party decides against an appeal.  The two women intervenors in the present case are interested in upholding the ordinance, and they clearly have the requisite standing.  See Burning Tree Club v. Bainum, 305 Md. 53, 59-60, 501 A.2d 817, 820 (1985), and State v. Burning Tree Club, 301 Md. 9, 16, 481 A.2d 785, 788 (1984). n11 The motion to intervene was filed [*371] only four days after the City Council voted against an appeal.  The intervenors obviously acted promptly.  Under the circumstances the circuit court was fully warranted in permitting intervention.

n11 Since the two individual intervenors have the requisite standing, we need not explore whether the other intervenors also have standing.  See, e.g., County Council v. Md. Reclamation, 328 Md. 229, 232 n. 1, 614 A.2d 78, 80 n. 1 (1992) ("'Where there exists a party having standing to . . . take an appeal, we shall not ordinarily inquire as to whether another party on the same side has standing,'" quoting Board v. Haberlin, 320 Md. 399, 404, 578 A.2d 215, 217 (1990)), and cases there cited.

[***19]

   III.

   Turning to the validity of the ordinance, the Annapolis Lodge contends, and the circuit court held, that the authority delegated to the City of Annapolis by the General Assembly in Art. 2B of the Maryland Code [**418] did not encompass the enactment of the ordinance.

   Article 2B establishes a comprehensive scheme for the regulation, control and distribution of alcoholic beverages within this State.  See Art. 2B, § 1, containing the declaration of legislative policy.  The Article is comprised of provisions articulating general, state-wide policy concerns, as well as provisions applicable only to designated subdivisions.  The provisions of Art. 2B cover a myriad of subjects.  They include the typical controls on the sale and consumption of alcoholic beverages, such as the types of places which may be licensed, the types of beverages which may be sold, the hours of sale, the license fees, etc.  The subjects covered in Art. 2B also include regulations concerning the premises, the conduct of licensees, ownership of establishments, membership requirements for association or club licensees, etc.  For examples, Art. 2B contains provisions dealing with the nature of kitchen equipment [***20]and kitchen facilities for the preparation of food on the premises of licensees, n12 the size of dining rooms, n13 sanitary and health conditions relating to the preparation of [*372] meals, n14 the minimum number of rooms to qualify for a hotel license, n15 landscaping and gardens for certain types of licensees, n16 the clothing to be worn by employees of a licensee, n17 the number of stories and elevators in a building to qualify for a hotel license, n18 the size of parking facilities, n19 restrictions on music, n20 requirements concerning curtains on windows, n21 the noise level of music, n22 citizenship requirements for licensees, n23 the number of boat slips for a yacht club to qualify for a license, n24 the number of tennis courts and the size of the swimming pool to qualify for a country club license, n25 and specific membership requirements for armed forces veterans clubs, fraternal clubs, etc., to be eligible for licenses. n26

n12 E.g. Art. 2B, §§ 19(n)(4)(i), 19(p)(2)(iii)2.

n13 E.g. §§ 19(h)(1)(ii), 19(k), 19(l)(2), 19(n)(1).

n14 E.g. Art. 2B, § 19(s)(1).

 

n15 E.g. § 19(s)(3)(ii).

[***21] 

n16 E.g., § 19(s)(9)(iii)(2)(B).

n17 E.g., §§ 19(s)(9)(iii)(2)(D), 71A(c).

n18 E.g. § 19(aa)(1).

n19 E.g. § 30A(c)(4).

n20 E.g. § 121.

n21 E.g. §§ 116, 122.

n22 E.g. § 129A.

n23 E.g. §§ 45(a), 55, 56(b)(3).

n24 E.g., § 20(c)(5)(iii)(2).

n25 E.g. §§ 20(c)(6)(iii)(2), 20(m)(2)(iv)4, 20(n)(6)(iv).

n26 E.g. §§ 20(c)(3), 20(c)(4), 20(j)(3), 20(k)(4), 20(k)(5).

   In each county and Baltimore City, the General Assembly has provided for a "Board of License Commissioners" to administer the provisions of Art. 2B. n27 With one exception [*373] discussed below, each county board of license commissioners generally exercises its authority and carries out the provisions of Art. 2B throughout the entire county.  The boards generally are granted certain enumerated powers by Art. 2B, § 158; in addition, other provisions of Art. 2B relate to specific powers and duties of particular boards.  The General Assembly has also conferred rule-making authority on the county boards in § 184(a), which provides as follows:

   "(a) Generally[***22] .  -- In addition to the powers otherwise provided by this article, the Comptroller and the board of license commissioners from any county or Baltimore City, respectively, have full power and authority to adopt such reasonable rules and regulations as they may deem necessary to enable them effectively to discharge the duties imposed upon them by this article."
 
For a discussion of the scope of a county board's rule-making authority under this provision, [**419] see Sullivan v. Bd. of License Comm'rs, 293 Md. 113, 124, 442 A.2d 558, 564 (1982) (stating that the power delegated to a county board of license commissioners "to make rules is not the power to make laws").

n27 In twelve of the counties and Baltimore City, the members of the board are appointed by the Governor (Art. 2B, §§ 148, 148A, 149).  In five counties board members are appointed by the county commissioners (§§ 150, 151A), and in two counties by the county executives (§§ 150(c), 150(e)).  In the remaining four counties, certain other officials are ex officio the members of the boards of license commissioners (§§ 151, 153, 159(c)(6)).

[***23]

   As previously indicated, Art. 2B provides one exception to the above-described regulatory scheme.  That exception relates to the authority of the City of Annapolis concerning alcoholic beverages. Article 2B, § 152, states that "the Board of License Commissioners of Anne Arundel County shall have no jurisdiction in the City of Annapolis." Section 152 also provides that the Mayor and Aldermen of Annapolis may themselves act as a board of license commissioners "or may delegate all or any portion of the authority to regulate alcoholic beverage licensees to a subsidiary Board established by the Mayor and Aldermen."

   More significantly, the authority over alcoholic beverage licenses granted by the General Assembly to the City of Annapolis is considerably broader than the authority granted [*374] to the county boards of license commissioners. Article 2B, § 158(d), states in pertinent part as follows (emphasis added):

   "In Anne Arundel County (1) the Mayor, Counsellor and Aldermen of Annapolis shall have the power to make and enforce such rules, regulations and restrictions, in addition to, or in substitution of, those contained in this article, but not inconsistent therewith, as[***24] in the judgment of the Mayor, Counsellor and Aldermen of the City of Annapolis would give the municipality more effective control of each of the places of business."

Pursuant to this authority, the Mayor and Aldermen of Annapolis have enacted a detailed scheme for the regulation of alcoholic beverages in Annapolis, set forth in Ch. 7.12 of the Code of the City of Annapolis (1986, Cum.Supp. No. 11, 1993).  With respect to matters not covered by Ch. 7.12, the Mayor and Aldermen of Annapolis have incorporated by reference the provisions of Art. 2B of the Maryland Code. n28 In addition, there are a few provisions in Art. 2B which are expressly directed to the City of Annapolis, and, in light of Art. 2B, § 158(d)(1), the City may not enact ordinances inconsistent with those provisions. n29 There are also numerous provisions in Art. 2B applicable in Anne Arundel County that either contain express exclusions for the City of Annapolis or are tied to the Anne Arundel County Board of License Commissioners' [*375] jurisdiction which does not encompass the City of Annapolis. n30

n28 Section 7.12.020 of the Annapolis Code states as follows:
 
"7.12.020 Applicability of state law.

   Except as otherwise provided in this chapter, the provisions of Article 2B of the Annotated Code of Maryland (1957 Edition and supplements) apply to the sale, consumption and licensing for sale of alcoholic beverages in the city."
 
In §§ 7.12.030-7.12.090, of the Annapolis Code, the City of Annapolis has created an alcoholic beverage control board and delineated the powers and duties of the board.

[***25] 

n29 See Art. 2B, §§ 17A (relating to beer and light wine licenses), 19A (authorizing the City to issue a beer, wine and liquor license for consumption on the premises only), 39G (relates to the Annapolis Wine Festival), 63(c) (concerns the collection of license fees), 121(b) (prohibits dispensing alcoholic beverages to minors).

n30 See, e.g., Art. 2B, §§ 19(c), 19A, 28, 28(d), 28(j)(5), 42(b), 46(a-1)(1), 57, 60(d), 63(c), 69(c), 74(e), 74(f), 85(a), 85(b)(2), 85(c)(2), 92(f) and (g), 121(a)(4).

   The authority over alcoholic beverage licensees granted by the General Assembly to the City of Annapolis in Art. 2B, § 158(d)(1), is very broad. Ordinance 0-11-90, conditioning an alcoholic beverage license upon a non-discriminatory membership policy by a club licensee, falls within § 158(d)(1)'s authorization to enact provisions and restrictions "in addition to, or in substitution of, those contained in this article . . . as in the judgment . . . of the City of Annapolis would give the municipality more effective control of each of the places of business." The Annapolis Lodge has not argued [***26] that Ordinance 0-11-90 is inconsistent with any provision in Art. 2B, and we have discovered no such inconsistency.

   Although recognizing that the General Assembly's delegation of authority to the City of Annapolis "is quite broad," the circuit court held that an Annapolis ordinance enacted pursuant to the delegation in Art. 2B, § 158(d)(1), must have some relation to "the [**420] consumption of alcohol" or to "what happens in the lounge," and that Ordinance 0-11-90 "has nothing to do with the consumption of alcohol except that it would deprive the Elks of their license." In this Court, the Annapolis Lodge similarly argues that "[a] club's membership restrictions do not have any necessary connection to who may be permitted to use a particular one of its facilities.  In the case of [the Annapolis Lodge], even though club membership is limited solely to men, the use of the lounge is not similarly limited.  The lounge is open not only to the male members, but also to their female guests, wives and dependents, and members of the Elk's Womens Auxiliary." (Annapolis Lodge's brief at 16).

   Nevertheless, Ordinance 0-11-90 has no less connection with the consumption of alcohol at a club or [***27] "what happens in the lounge" than many of the provisions of Art. 2B containing requirements for various private club licenses. For example, Art. 2B, § 20(o)(2) (1993 Cum.Supp.), provides that, for a [*376] country club to be eligible for a liquor license in Howard County, it must have an 18 hole golf course.  On the other hand, in several counties, a nine hole golf course will suffice. n31 In other counties to be eligible for a country club license, the club must maintain either a golf course or a swimming pool of a specified size. n32 In still other counties, there is no requirement of either a golf course or a swimming pool for a country club license. n33 Other categories of private club licenses, i.e., yacht clubs, racket clubs, fraternal clubs, etc., have similar types of eligibility requirements. n34

n31 See, e.g., Art. 2B, §§ 20(c)(7), 20(h)(3), 20(l)(6), 20(m)(2)(iv)(4).

n32 See, e.g., Art. 2B, §§ 20(n)(6)(iv), 20(q)(2)(iii).

n33 See, e.g., §§ 20(b), 20(e), 20(g)(4), 20(k), 20(s)(3)(ii), 20(u).

n34 See, e.g., §§ 20(c)(5), 20(m)(2)(iv)(3), 20(n)(6)(iii), 20(n)(6)(v), 20(r)(4).

[***28]

   Turning specifically to membership criteria for private club eligibility for alcoholic beverage licenses, Art. 2B is replete with requirements relating to membership even though relatives or guests of members may drink at the clubs. For example, in most counties there are specific provisions for alcoholic beverage licenses for armed forces "veterans" clubs. In several of these counties, in order for an armed forces veterans club to obtain a license, it must be composed entirely of persons who were members of the United States armed forces during time of war, whereas in other counties, a veterans club may include among its membership veterans who had served only in peacetime. n35 There are other provisions of Art. 2B, relating to various types of private club alcoholic beverage licenses, setting forth eligibility requirements concerning the residency of club members, the residency of officers, the voter and taxpayer status of officers, the annual dues of members, [*377] initiation "rites" for members, numbers of members, etc. n36 As previously indicated, Annapolis Ordinance 0-11-90 has just as much, or just as little, connection with the consumption of alcohol at the club as these[***29] provisions of Art. 2B have.

n35 Compare, e.g., Art. 2B, §§ 20(c)(3), 20(j)(3), 20(k)(4), 20(m)(2)(iv), 20(n)(6)(i), 20(r)(2)(iii), 20(s)(3)(i), with Art. 2B, §§ 20(g)(4)(iii), 20(l)(3), 20(q)(5), 20(v)(4).  In a few counties, only veterans clubs affiliated with the American Legion or Veterans of Foreign Wars are eligible for a veterans club license. See, e.g., § 20(f)(2)(iii).

n36 See, e.g., Art. 2B, §§ 20(c)(4)(iii), 20(c)(5)(v), 20(c)(6)(iii), 20(c)(6)(v), 20(g)(4), 20(h)(3)(v), 20(i)(3), 20(k)(3)(ii), 20(k)(4)(ii), 20(k)(5), 20(l)(5)(v), 20(l)(6)(v), 20(l)(7)(iii), 20(l)(7)(iv), 20(l)(8), 20(m)(2)(iv), 20(n)(6), 20(o)(3)(iii), 20(p)(3), 20(q)(2)(iii), 20(q)(2)(v), 20(q)(4)(i), 20(q)(6)(iii), 20(r)(2)(iii), 20(r)(3)(iii), 20(r)(4)(iii), 20(r)(5)(iii), 20(u)(3), 20(u)(4).

   The General Assembly has delegated to the City of Annapolis the authority to enact provisions regulating alcoholic beverages and licenses "in addition to, or in substitution of, those contained in this[***30] article [2B]." See Art. 2B, § 158(d)(1).  In light of this, there is no basis for concluding that an alcoholic beverage regulatory ordinance enacted by the City of Annapolis, concerning private club licenses, must have a closer connection with the consumption of alcohol at the club than the provisions of Art. 2B itself concerning private club licenses.

   Moreover, unless a private club is open to the general public, an ordinance conditioning [**421] an alcoholic beverage license upon the removal of a membership restriction does have some connection with who may purchase alcoholic beverages at the club's facilities.  Compliance with such an ordinance obviously broadens the categories of persons who may drink alcoholic beverages in the club. There may be many women who desire to use the alcoholic beverage service of the Annapolis Lodge, who are not married to or dependents of or regular guests of existing members, who are not eligible for the "Womens Auxiliary," n37 but who would be eligible for membership if the Annapolis Lodge did not discriminate on the basis of gender. As the Supreme Judicial Court of Maine said with regard to membership restrictions based on race in B.P.O.E. Lodge No. 2043 of Brunswick v. Ingraham, 297 A.2d 607, 615 (Me.1972),[***31] appeal dismissed, 411 U.S. 924, 93 S.Ct. 1893, 36 L.Ed.2d 386 (1973), discriminatory membership practices have
 
[*378] "operative practical consequences . . . upon the opportunities of persons . . . to purchase intoxicating liquors for beverage purposes.  To the extent that there is restriction in the membership of the [Elks] on the arbitrary basis of race or color, to that extent some human beings in the State of Maine, arbitrarily because of their racial origin or color, are, ipso facto, excluded from opportunity, which they might otherwise have had, to purchase intoxicating liquors for beverage purposes."

n37 See note 3, supra.

   In any particular area, there are limits to the number of alcoholic beverage licenses which may be issued.  The City of Annapolis, by deciding to award private club licenses to clubs that do not discriminate on the basis of race, gender, etc., instead of to clubs which exclude members of a particular race or gender, [***32] has decided that a broader range of the adult population should have the opportunity to enjoy alcoholic beverages at clubs. While guests and dependents of members may also use the clubs, nondiscriminatory membership criteria increase the number of persons falling within the categories of guests and dependents.  In this respect, Ordinance 0-11-90 does have a relationship to the consumption of alcoholic beverages at private clubs in Annapolis.

   The City of Annapolis was authorized, under Art. 2B, § 158(d)(1), to enact Ordinance 0-11-90. n38

n38 Our holding in this case is, of course, limited to the authority of the City of Annapolis under Art. 2B, § 158(d)(1).  Whether a county board of license commissioners would have authority to promulgate a regulation like Ordinance 0-11-90, under the delegation in Art. 2B, § 184(a), or under any other provision of Art. 2B, is an issue not before us in this case, and we intimate no views upon the matter.

   IV.

   The Annapolis Lodge alternatively argues, and the circuit court alternatively[***33] held, that Annapolis Ordinance 0-11-90 conflicts with the state public accommodations law.

   The Maryland public accommodations law, in Art. 49B, § 5(a), provides in pertinent part as follows:

   [*379] "(a) It is unlawful for an owner or operator of a place of public accommodation or an agent or employee of the owner or operator, because of the race, creed, sex, age, color, national origin, marital status, or physical or mental handicap, of any person, to refuse, withhold from, or deny to such person any of the accommodations, advantages, facilities and privileges of such place of public accommodation."
 
Subsection (c)(2) of § 5 provides that a place of public accommodation within the meaning of the section includes, inter alia, a "facility" engaged in selling "alcoholic beverages for consumption on or off the premises." Subsection (e), however, states as follows:

   "(e) The provisions of this section shall not apply to a private club or other establishment not in fact open to the public, except to the extent that the facilities of such establishments are made available to the customers or patrons of an establishment within the scope of this section."

   The Annapolis Lodge[***34] argues that subsection (e) "permits private clubs to establish their own membership criteria" and that "the intent of the legislature was to permit the excluded group to discriminate if they so [**422]choose." (Annapolis Lodge's brief in this Court at 10, 12).  The Annapolis Lodge contends that § 5(e) is similar to the statute involved in State v. Burning Tree Club, Inc., 315 Md. 254, 294-296, 554 A.2d 366, 386-387, cert. denied, 493 U.S. 816, 110 S.Ct. 66, 107 L.Ed.2d 33 (1989), where "the Court of Appeals recognized that . . . the legislature was permitting clubs to engage in a limited form of discrimination." (Annapolis Lodge's brief at 13).  The Annapolis Lodge concludes that, because Ordinance 0-11-90 "conflicts with the permission to discriminate embodied in Article 49B, Section 5(e) . . ., the local law must yield and it is invalid." (Id. at 14.)

   A local government ordinance which conflicts with a public general law enacted by the General Assembly is preempted and thus is invalid. See, e.g., Boulden v. Mayor, 311 Md. 411, 415-417, 535 A.2d 477, 479-480 (1988);[***35] Rockville Grosvenor v. Montgomery County, 289 Md. 74, 93-99, 422 [*380] A.2d 353, 364-367 (1980); Mont. Co. Bd. of Realtors v. Mont. Co., 287 Md. 101, 107-110, 411 A.2d 97, 100-102 (1980); Annapolis v. Annap. Waterfront Co., 284 Md. 383, 391-393, 396 A.2d 1080, 1085-1086 (1979); County Council v. Investors Funding, 270 Md. 403, 421-423, 312 A.2d 225, 235-237 (1973); City of Baltimore v. Sitnick & Firey, 254 Md. 303, 312-317, 255 A.2d 376, 380-382 (1969).

   We have stated that "'[a] local ordinance is preempted by conflict when it prohibits an activity which is intended to be permitted by state law, or permits an activity which is intended to be prohibited by state law.'" Allied Vending v. Bowie, 332 Md. 279, 297 n. 12, 631 A.2d 77, 86 n. 12 (1993), quoting Talbot County v. Skipper, 329 Md. 481, 487 n. 4, 620 A.2d 880, 882-883 n. 4. n39 In applying this principle, [***36] however, our cases have recognized a distinction between a state law which is intended to permit or authorize a particular matter and a state law which is simply intended to exempt the particular matter from its coverage. When a state law simply excludes a particular activity from its coverage, our cases have not attributed to the General Assembly an intent to preempt local legislation regulating or prohibiting that activity.  Instead, in such situations supplementary local legislation has not been deemed to be in conflict with and preempted by the state statute. National Asphalt v. Prince Geo's Co., 292 Md. 75, 79, 437 A.2d 651, 653 (1981); Annapolis v. Annap. Waterfront Co., supra, 284 Md. at 391-393, 396 A.2d at 1085-1086; City of Baltimore v. Sitnick & Firey, supra, 254 Md. at 312-326, 255 A.2d at 380-386.

n39 Not all conflicts between state public general law and local law neatly fall within this "prohibit-permit" principle.  A local law may conflict with a state public general law in other respects and will, therefore, be preempted. See, e.g., Montgomery County v. Board of Elections, 311 Md. 512, 536 A.2d 641 (1988) (state law and local law provided two different and irreconcilable methods for appointing the same public officials); East v. Gilchrist, 296 Md. 368, 463 A.2d 285 (1983); Mont. Co. Bd. of Realtors v. Mont. Co., 287 Md. 101, 411 A.2d 97 (1980).

[***37]

   Thus, in City of Baltimore v. Sitnick & Firey, supra, a state minimum wage law, inter alia, excluded from its coverage [*381] taverns whereas a local minimum wage ordinance covered the taverns, and one of the issues before this Court was whether the local law was in conflict with the state statute in this regard and therefore was invalid. The trial court in Sitnick, like the trial court in the present case, reasoned that the state statute's mere exclusion of certain entities indicated a legislative intent that such entities be free of regulation by local law. In reversing the trial court and holding that the local ordinance was not in conflict with the state statute, this Court in Sitnick pointed out that the "'fact that an ordinance enlarges upon the provisions of a [state] statute by requiring more than the statute requires creates no conflict . . . .'" Sitnick, 254 Md. at 317, 255 A.2d at 382. The Court went on (ibid.):

   "A distillation of the opinions we have cited leaves the residual thought that a political subdivision may not prohibit what the State by general [***38]public law has permitted, but it may prohibit what the State has not expressly permitted.  . . . The State's prohibition of certain activity in a field does not impliedly guarantee that all other activity shall be free from local regulation and in such a situation the same field may thus be opened to supplemental local regulation."

Later, in language directly applicable to the Annapolis Lodge's argument in the present [**423] case, the Court in Sitnick concluded that a mere exclusion from regulation in the state statute did not indicate a state legislative intent that the excluded entities be free of regulation (254 Md. at 324, 255 A.2d at 385-386):

   "The lower court in its opinion reasoned that it was the legislative intent, that where the State law created an exemption, it intended by specific exclusion to free those businesses in the excluded categories from any regulation, and it meant this privilege to extend to freedom from regulation by local law. However, we are of the opinion that the more logical deduction is that the State exemption amounts to no regulation at all and accordingly leaves the field open for regulation[***39] at the local level."

   Very much in point is this Court's decision in National Asphalt v. Prince Geo's Co., supra, 292 Md. at 79, 437 A.2d at [*382] 653. Whereas the present case involves the public accommodations provisions of Art. 49B and the exclusion of private clubs from the coverage of the state statute, National Asphalt involved the prohibitions in Art. 49B against employment discrimination and the exclusion of employers with less than fifteen employees from the coverage of the state statute. See Art. 49B, § 15(b).  While the state statute prohibiting employment discrimination exempts from its coverage employers with less than fifteen employees, Prince George's County enacted an ordinance which did prohibit employment discrimination by employers with less than fifteen employees.  National Asphalt, which was covered by the local ordinance but exempt from the state statute, argued that the local ordinance was both preempted by the State's asserted occupation of the field and, alternatively, was preempted by conflict.  This Court rejected both arguments and upheld the local ordinance. With regard to the conflict argument, [***40] we stated (292 Md. at 79, 437 A.2d at 653):
 
"Employers with less than fifteen employees are not permitted by the state statute to discriminate in their employment practices; they simply are not covered."
 
The Court continued (ibid. n. 3):

   "For this reason, there is no merit to National Asphalt's alternate argument that there is a conflict between the state law and the Prince George's County ordinance to the extent that the latter covers employers with less than fifteen employees.  The state statute would have to permit discrimination by employers with less than fifteen employees for there to be a conflict under the test set forth in our cases.  Mayor and Council of Forest Heights v. Frank, 291 Md. 331, 337, 435 A.2d 425 (1981); City of Baltimore v. Sitnick & Firey, 254 Md. 303, 313-317, 255 A.2d 376 (1969), and cases there cited."

   The language of the state public accommodations law, which excludes private clubs from its coverage, is similar to the language of the state employment discrimination prohibition law involved in National [***41]  Asphalt, which excludes small employers [*383] from its coverage, and is similar to the state minimum wage law involved in Sitnick, which excluded taverns from its coverage. The provision of the state public accommodations law relied on by the Annapolis Lodge, Art. 49B, § 5(e), does not permit discrimination by private clubs. It simply excludes private clubs from the coverage of the state law. Instead of constituting an affirmative authorization to discriminate like the statute in State v. Burning Tree Club, Inc., supra, 315 Md. at 294-296, 554 A.2d at 386-387, § 5(e) merely removes private clubs from the scope of the state public accommodations law. n40 Consequently, under this Court's holdings in Sitnick and National Asphalt, there is no conflict between Art. 49B, § 5(e), and Annapolis Ordinance 0-11-90.

 n40 The Annapolis Lodge's reliance upon State v. Burning Tree Club, Inc., may also be misplaced on another ground.  If Art. 49B, § 5(e), were like the statute involved in Burning Tree as argued by the Annapolis Lodge, the result in this case might well be the same for an entirely different reason.  While not mentioned in the Annapolis Lodge's brief, the state statute involved in Burning Tree, which expressly drew classifications based on gender, and which expressly authorized certain gender discrimination while prohibiting other discrimination, was held unconstitutional under Article 46 of the Maryland Declaration of Rights.  If Art. 49B, § 5(e), were also construed as affirmatively authorizing discrimination based on race, gender, etc., a substantial question about § 5(e)'s validity under Articles 24 and 46 of the Declaration of Rights would be presented.  And if § 5(e), as so construed, were invalid, there would be no viable state statute with which Ordinance 0-11-90 conflicted.

[***42]

   [**424] The circuit court erred in declaring Ordinance 0-11-90 invalid and enjoining its enforcement.

   ORDER OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY GRANTING INTERVENTION AFFIRMED.  OTHERWISE, THE JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY IS REVERSED, AND THE CASE IS REMANDED TO THAT COURT FOR THE ENTRY OF A DECLARATORY JUDGMENT IN CONFORMANCE WITH THIS OPINION.  COSTS TO BE PAID BY ANNAPOLIS LODGE NO. 622, BENEVOLENT AND PROTECTIVE ORDER OF ELKS. 

JARVIS STEEL & LUMBER CO., INC. v. WILLIAM DEMPSEY, IND. &JOINTLY, PAUL GREENSTEIN, IND. & JOINTLY, t/a Royal Development Company 
No. 85, September Term, 1993
 
COURT OF APPEALS OF MARYLAND
 
333 Md. 384; 635 A.2d 424; 1994 Md. LEXIS 12

 January  12, 1994, Filed

   PRIOR HISTORY: [**1]

   Certiorari to the Circuit Court for  Anne Arundel  County. Robert H. Heller, Jr., JUDGE

COUNSEL: ARGUED BY Cynthia E. Young of Annapolis, Maryland, FOR PETITIONER.
 
ARGUED BY Randall E. Goff of Arnold Maryland, FOR RESPONDENT.

JUDGES: ARGUED BEFORE Murphy, C.J.: Rodowsky, Chasanow, Karwacki, Bell, Raker, and Orth, Charles E. Jr. (Retired and specially assigned).

OPINIONBY: ROBERT C. MURPHY

OPINION: [*384]

   ORDER

   The petition for writ of certiorari in the above entitled case having been granted and heard, it is this 12th day of January, 1994

   ORDERED, by the Court of Appeals of Maryland, that the writ of certiorari be, and it is hereby, dismissed with costs, the petition having been improvidently granted.

   Robert C. Murphy

   Chief Judge 

YORK ROOFING, INC. et al. v. Dale W. ADCOCK et al. 
No. 27, September Term, 1993
 
COURT OF APPEALS OF MARYLAND
 
333 Md. 158; 634 A.2d 39; 1993 Md. LEXIS 176
 
   December  10, 1993, Filed

   PRIOR HISTORY: [***1] Certiorari to the Court of Special Appeals. (Circuit Court for  Anne Arundel  County). Warren B. Duckett, JUDGE

DISPOSITION: JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED; COSTS TO BE PAID BY PETITIONERS.

CORE TERMS:  mechanics', subcontractor, notice, equitable title, purchaser, claimant, improved, Mechanics' Lien Law, subtitle, legal title, contracted, materials furnished, seller, buy, settlement, contractor, bona fide purchaser, vendor, buyer, general contractor, specifications, supplied, tenant, equitable conversion, bona fide, furnishing, prevailed, equitable, vendee, clerk

COUNSEL: Richard B. Talkin (Johathan E. Greenstein, Richard B. Talkin, P.A.), on brief, Columbia, for petitioner.

   Jeffrey B. Fisher of Camp Springs (R. Bradley Runyan, Washington, District of Columbia), on brief, for respondent.

   Michael N. Russo, Jr. (Thieblot, Ryan, Martin & Ferguson) on brief, Baltimore, amicus curiae.

JUDGES: Murphy, C.J., and Eldridge, Rodowsky, McAuliffe, Chasanow, Karwacki and Robert M. Bell, JJ.

OPINIONBY: KARWACKI

OPINION: [*160] [**40] We issued a writ of certiorari in this case, 330 Md. 458, 624 A.2d 954, to determine whether, under our Mechanics' Lien Law, Maryland Code (1974, 1988 Repl.Vol.), §§ 9-101 through 9-114 of the Real Property Article, a potential lienor's right to establish its lien terminates when the property improved by its labor and materials is sold to a bona fide purchaser within the 180 day period allowed under the law for the potential lienor to file its petition for the lien.  We shall hold that such a bona fide purchaser takes free [***2] of all mechanics' liens not established before equitable title passes.

   I

    This appeal is from the denial of petitions for a mechanics' lien by two subcontractors that supplied labor and materials in the construction of a commercial building on property located in Anne Arundel County.  On September 28, 1990, Richard E. Polm, the record owner of the Anne Arundel County property, entered into a contract with Commerce Park, Ltd., a construction company owned and operated by Polm, to construct a new office and warehouse building on that property.  Polm had previously entered a lease agreement for that property in July of 1990 with W.W. Adcock Co., Inc., a corporation owned and operated by Dale W. Adcock and Carson Dee Adcock.  The lease provided that a building would be constructed on the property and the Adcocks' corporation would be the sole tenant. The building was to be "built to suit" the specific needs of the Adcocks and their company.  York Roofing, Inc. (York) and Central Air Conditioning Contractors, Inc. (Central Air), the petitioners, were two of the many subcontractors that provided labor and materials in the course of construction pursuant to contracts with the general contractor, [***3] Commerce Park, Ltd.

   [*161] York installed a roof, roof insulation, and architectural sheet metal coping for the entire building, according to plans and specifications supplied by Polm or his construction company.  The work began on or about November 29, 1990, and ended on January 8, 1991.  The contract price for the job totalled $56,173.62, none of which was paid at the time of completion.

   Likewise, Central Air installed an air conditioning system for the entire building, according to plans and specifications supplied by Polm or his construction company.  Its work began on or about November 12, 1990, and ended on January 18, 1991.  The total contract price for the job was $31,280, none of which was paid at the time of completion.

   On December 10, 1990, Polm and the Adcocks entered into a contract for the sale to the Adcocks of the property, together with the building, which was still under construction.  That contract specifically provided that the building was to be constructed in accordance with the plans and specifications that were initialed by the parties and attached to the contract.  Both York and Central Air completed a portion of their work on the building after the date[***4] of that contract.  Settlement on the contract took place on February 20, 1991.

   At settlement, there were nine unpaid subcontractors listed on the memorandum of settlement, whose claims were paid out of the proceeds of the sale.  Neither York nor Central Air were on the list.  The parties have stipulated that notices of intent to establish a mechanics' lien were mailed to the Adcocks by certified mail, return receipt requested.  York's notice was served upon the Adcocks on April 3, 1991; Central Air's notice was served on April 15, 1991.  Petitions to establish and enforce mechanics' liens were filed in the Circuit Court for Anne Arundel County by York on July 5, 1991, and by Central Air on July 15, 1991.  On November 27, 1991, a hearing was held to determine Appellees' entitlement to their respective mechanics' liens.  The court denied both petitions for the liens.  The Court of Special Appeals affirmed those judgments in an unreported opinion.

   [*162] II

   We begin our analysis by reviewing the background of our current Mechanics' Lien [**41] Law. Before 1976, the Maryland Mechanics' Lien statute operated to create a lien that attached to the property as soon as the work was performed[***5] or materials supplied and lasted until the expiration of 180 days after the work had been finished or materials furnished, even if no contract action had been filed in court.  Barry Properties v. Fick Bros., 277 Md. 15, 19, 353 A.2d 222, 225-26 (1976). If a laborer or material supplier was a subcontractor, however, it was not entitled to a lien unless, within 90 days after furnishing the work or materials, it gave written notice to the owner of its intention to claim a lien.  Id. at 19-20, 353 A.2d at 226. The purpose of this notice by the subcontractor was to inform the property owner that a lien might be claimed so that the owner could retain from the cost of the building the amount that the owner ascertained to be due to the subcontractor. Id. at 20, 353 A.2d at 226. The statute further provided that if either a subcontractor (who gave the requisite notice) or a general contractor had not been paid and desired to retain a mechanics' lien, it was required to file within 180 days a claim with the clerk of the circuit court of the county where[***6] the property was located, at which time the lien would be recorded on a special "Mechanics' Lien Docket." Id. Once filed with the clerk, the lien subsisted for one year from the date of its filing unless within that period the claimant commenced a proceeding to enforce it, in which case the lien was stayed until the proceeding concluded.  Id. During that period, however, the owner of the property subject to the lien, or any other person interested in it, could bring proceedings in equity to compel the claimant to prove the validity of the lien or have it declared void.  Id. In the alternative, with court approval, the owner could release its property from the lien by posting bond.  Id. If a claimant prevailed in proceedings to enforce its lien, the court would order a sale of the property to pay the claimant unless the amount found to be due was paid by a specified date.  Id. at 20-21, 353 A.2d at 226.

   [*163] In Barry Properties, supra, however, this Court held that the Mechanics' Lien Law as then formulated was incompatible with the due process clauses of the Fourteenth [***7] Amendment and then Article 23 of the Maryland Declaration of Rights.  (Re-adopted and renumbered as Article 24, ch. 681 of the Acts of 1977, ratified Nov. 7, 1978).  The Court reasoned that the imposition of a mechanics' lien involves state action, 277 Md. at 22, 353 A.2d at 227, and that the lien deprived an owner of a significant property interest. Id. at 24, 353 A.2d at 228. The Court therefore held that the statute allowed prejudgment seizure of significant property interests without notice, prior hearing, or other sufficient procedural safeguards.  Id. at 31, 353 A.2d at 232. 

   The Barry Properties Court concluded, however, that it was possible to sever the unconstitutional provisions of the Mechanics' Lien Law, yet still preserve enough of the law to fulfill the legislative intent, stating:

   "We think that this can be accomplished by excising that portion of the statute which purports to create a lien from the time work is performed or materials furnished to the time a lien is established by judicial determination in a proceeding sufficient[***8] with respect to due process.  We therefore hold that under the current statute there can be no existing lien on property until and unless the claimant prevails either in a suit to enforce the claimed lien or in some other appropriate proceeding providing notice and a hearing (i.e., a declaratory judgment action).  What the claimant, be he a general contractor or subcontractor, possesses up to that point in time is a chose in action.  Under this ruling, we believe, the statute continues to effectuate the primary legislative intent, yet the owner is not deprived of a significant property interest without due process since the owner's interest is not impinged upon until after he is provided with notice and an opportunity for a hearing. It follows that § 9-107(b), to the extent that it grants mechanics' liens 'priority over any mortgage, judgment, lien or encumbrance attaching to the building or ground subsequent to the commencement of the building' but prior to the [*164] time the lien is established by a judicial determination, is also null and void since to hold otherwise would permit contractors to seize with their left [**42] hand what we have said they cannot grasp with[***9] their right."
 
277 Md. at 36-37, 353 A.2d at 235. (footnotes omitted).

   The General Assembly reacted to the Barry decision by enacting emergency legislation that was signed by the Governor on May 4, 1976.  Ch. 349 of the Acts of 1976.  As now codified, Md.Code (1974, 1988 Repl.Vol.), § 9-102 of the Real Property Article provides in relevant part:

   (a) Buildings.  -- Every building erected and every building repaired, rebuilt, or improved to the extent of 25 percent of its value is subject to establishment of a lien in accordance with this subtitle for the payment of all debts, without regard to the amount, contracted for work done for or about the building and for materials furnished for or about the building, including the drilling and installation of wells to supply water, the construction or installation of any swimming pool or fencing, the sodding, seeding or planting in or about the premises of any shrubs, trees, plants, flowers or nursery products, and the grading, filling, landscaping and paving of the premises. [emphasis added]

   * * *

   (d) Exemptions.  -- However, a building or the land on which the building is erected[***10] may not be subjected to a lien under this subtitle if, prior to the establishment of a lien in accordance with this subtitle, legal title has been granted to a bona fide purchaser for value.

   (e) Filing of petition constitutes notice to purchaser.  -- The filing of a petition under § 9-105 shall constitute notice to a purchaser of the possibility of a lien being perfected under this subtitle.

Thus, the post-Barry Properties law has preserved the right of a creditor for labor or materials to proceed in rem against the improved property even though there was no privity of contract between the creditor and the owner, nor any personal liability of the owner to the creditor.  Himmighoefer v. Medallion [*165]Industries Inc., 302 Md. 270, 277, 487 A.2d 282, 286 (1985). The lien law was otherwise radically changed, however.  Under the new law, the claimant has no lien until he has gone to court and has made the necessary showing to the court to establish the lien.  § 9-106 of the Real Property Article.

   In Himmighoefer, we considered the effect of a lien petition filed between the time of the execution of the contract [***11] of sale for the property improved by the lien claimant and the conveyance of legal title thereto at settlement on the sale.  A subcontractor, Medallion Industries, Inc. (Medallion), had furnished labor and materials on two sites in a residential subdivision in Prince George's County.  The work was performed between May and September of 1981 pursuant to a contract with the general contractor for the project.  Subsequent to completion of all of the work by Medallion, the owner, Ridgely Builders, Inc. (Ridgely), contracted to sell one lot with improvements to Mr. and Mrs. Gary Himmighoefer on November 17, 1981, and another improved lot to Robert Holmes on November 24, 1981.  On December 23, 1981, Medallion filed a petition in the Circuit Court for Prince George's County to establish mechanics' liens against each lot.  Ridgely was the only named defendant.  On December 31, 1981, Ridgely conveyed to the Himmighoefers the improved lot it had sold to them, and on January 8, the lot sold to Holmes was conveyed by Ridgely to Holmes.  Ridgely did not respond to the show cause order on the petition to establish the mechanics' liens, and consequently a default decree was passed and liens entered[***12] on February 2, 1982.  The Himmighoefers and Holmes learned of the mechanics' liens against their properties when they were advertised for sale.  They intervened in the proceedings.  The trial court vacated the default decrees entering the liens but thereafter granted Medallion's motions for summary judgment and directed that mechanics' liens be entered against both properties.  Reversing those judgments, we held that the interests of the purchasers who acquired equitable title to land prior to the establishment of mechanics' liens could not be reached by the mechanics' liens. Under the [*166] doctrine of equitable conversion n1, the purchasers acquired [**43] equitable title to the properties when they contracted with Ridgely to buy them.  302 Md. at 278, 487 A.2d at 286. See also Coe v. Hays, 328 Md. 350, 357-58, 614 A.2d 576, 579-80 (1992); and Reisterstown Lumber Co. v. Tsao, 319 Md. 623, 630, 574 A.2d 307, 310-11 (1990).

n1 "'The legal cliche, that equity treats that as being done which should be done, is the basis of the theory of equitable conversion. Hence, when the vendee contracts to buy and the vendor to sell, though legal title has not yet passed, in equity the vendee becomes the owner of the land, the vendor of the purchase money.  In equity the vendee has a real interest and the vendor a personal interest.  Equity treats the executory contract as a conversion, whereby an equitable interest in the land is secured to the purchaser for whom the vendor holds the legal title in trust.  This is the doctrine of equitable conversion.'" Himmighoefer v. Medallion Industries, Inc., 302 Md. at 278, 487 A.2d at 286 (quoting 8A Thompson, Real Property, § 4447 at 273-74 (Grimes Repl. Vol.1963)).

[***13]

   The Himmighoefer Court went on to discuss the effect of the petitions to establish mechanics' liens, which were filed after the contracts of sale but before passage of legal title at settlement:

   "Medallion is of the view that the filing of its petition to establish a mechanics' lien gave constructive notice to the appellants and thus somehow established a claim against their lots.  At best, this action could place Medallion in no better position than that which would have prevailed had it obtained a judgment against the seller between the time of the contracts of sale and the passing of the deeds.  Unlike the situation which prevailed under the "old" law, there is no mechanics' lien under the "new" law until the passage of a court order establishing that lien.  The lien exists purely by virtue of statute . . . .  At common law a creditor had no remedy against the lands of his debtor.  Judgments create liens only because the land is made liable by statute to be seized and sold on execution." (citations omitted.)

302 Md. at 278, 487 A.2d at 286.
 
We concluded in Himmighoefer by pointing out:

[*167] "Appellants [the [***14] purchasers] were vested with equitable title prior to the filing of the petition for a mechanics' lien.  That petition could create no lien because a lien only comes into being upon court order.  We are not obliged to consider whether the appellants were bona fide purchasers within the meaning of § 9-102(d) nor are we obliged to consider the effect of § 9-102(e) pertaining to notice because equitable title vested in the appellants prior to the docketing of the suit to establish the mechanics' liens. Appellants' position as to the entry of a mechanics' lien is no worse than it would have been had a judgment been entered against the seller between the time of the execution of the contracts of sale and the passage of a deed.  The fact that a mechanics' lien is a specific lien in rem and a judgment is a general lien makes no difference.  The interest of the appellants in the land in question could not be reached by the mechanics' liens."

302 Md. at 281, 487 A.2d at 287-88.

   III

   Section 9-105 governs the filing of mechanics' liens claims.  Subsection (a) provides in part:

"(a) In order to establish a lien under this subtitle, a person[***15] entitled to a lien shall file proceedings in the circuit court for the county where the land or any part of the land is located within 180 days after the work has been finished or the materials furnished. The proceedings shall be commenced by filing with the clerk, the following: . . . ."

   Petitioners in the instant case argue that they were entitled to rely upon the availability of the full 180 day statutory period within which to perfect their mechanics' liens against the property, even though both equitable and legal title were transferred to the Adcocks during that 180 day period.  We disagree.  The 180 day period stated in § 9-105(a) is a time limitation within which the mechanics' lien claimant must file a petition to establish a lien.  It is true that claimant may file its petition to establish a lien during the 180 day period, but only [*168] so long as the property itself is subject to a lien.  Once equitable title has been transferred to a bona fide purchaser for value, however, the property [**44] is no longer subject to a lien. Himmighoefer, 302 Md. at 281, 487 A.2d at 287-88.

    York and Central Air next assert that since[***16] the Adcocks were the equitable owners of the property while a portion of the labor and materials were furnished by them as subcontractors, the Adcocks were therefore owners of the property being improved within the meaning of our mechanics' lien statute. Again we disagree.

   As we noted in Part II, supra, our Mechanics' Lien Law provides a remedy to unpaid contractors or subcontractors who furnish labor or materials in the improvement of real property by permitting them to establish a lien upon the property improved. The plain meaning of the language employed by the General Assembly in enacting the Mechanics' Lien Law refutes the petitioners' assertion. Section 9-101 provides:

   "(a) In general.  -- In this subtitle the following words have the meanings indicated.

   (b) Building.  -- "Building" includes any unit of a nonresidential building that is leased or separately sold as a unit.

   (c) Contract.  -- "Contract" means an agreement of any kind or nature, express or implied, for doing work or furnishing material, or both, for or about a building as may give rise to a lien under this subtitle.

   (d) Contractor.  -- "Contractor" means a person who has a contract with [***17]an owner.

   . . .

   (f) Owner.  -- "Owner" means the owner of the land except that, when the contractor executes the contract with a tenant for life or for years, "owner" means the tenant.

   (g) Subcontractor.  -- "Subcontractor" means a person who has a contract with anyone except the owner or his agent."

These provisions clearly exclude the Adcocks as owners within the contemplation of the Mechanics' Lien Law since they [*169] entered no contract with Commerce Park, Ltd. for the improvement of the property which they subsequently purchased.  The only contracts which York and Central Air entered for furnishing labor and materials were with Commerce Park, Ltd., and there is no evidence that it was acting as an agent of the Adcocks.  Consequently, the Adcocks' property was not subject to a mechanics' lien under the statute.  Greenway v. Turner, 4 Md. 296, 304 (1853) (The liability of the owner under the mechanics' lien law is created not by act of the party, but by law, and must rest solely upon the terms of the law, one of which is that there must be an active subsisting contract between the builder and the owner, before the latter can be [***18] made responsible for materials furnished to the former.).

   Finally, York and Central Air submit that the Adcocks were not bona fide purchasers for value because their corporation was a tenant of the property prior to December 10, 1990, when they contracted to buy it, and because they contracted to buy the property together with a building to be completed in accordance with agreed plans and specifications. Consequently, petitioners posit that the Adcocks were on notice of their work on the building and that they may not have been paid for their labor and material.  The short answer to this contention is that the trial court found as a fact that the Adcocks were not aware that York and Central Air had not been paid for the labor and materials they furnished in the construction of the building.  That finding was supported by substantial evidence and will not be disturbed on appeal.  Maryland Rule 8-131(c).  Even assuming, however, that the Adcocks had knowledge that York and Central Air had not been paid for their labor and materials, that knowledge, without more, would be insufficient to expose them to a lien established after equitable title to the property had passed to them.  Petitioners' [***19] contention to the contrary overlooks the curtailed remedy now provided laborers and material suppliers under the post-Barry Properties Mechanics' Lien Law. Since York and Central Air never established a lien, they were possessed of a mere chose in action when equitable [*170] title passed to the Adcocks. Thus, as in the case of a judgment rendered against the seller after equitable title to real estate passed to the buyer, notice of the claim on which that judgment was based would not prevent the buyer's equitable title from being insulated from any lien of the judgment.  Caltrider v. Caples, 160 Md. 392, 394, 153 A. [**45] 445, 446 (1931) (equitable interest of the buyer took precedence over judgment creditor of seller where that judgment was rendered after equitable title passed, notwithstanding the fact that buyer was aware of the claim against seller on which the judgment was grounded).  For all of the above reasons, the equitable interests of the Adcocks in the property they bona fide contracted to buy for a valuable consideration could not be encumbered by a mechanics' lien by York and Central Air because of Commerce Park's[***20] failure to pay them for the labor and materials they furnished as subcontractors.

   JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED; COSTS TO BE PAID BY PETITIONERS. 

The SOUTHLAND CORPORATION v. David GRIFFITH 
No. 33, September Term, 1993
 
COURT OF APPEALS OF MARYLAND
 
332 Md. 704; 633 A.2d 84; 1993 Md. LEXIS 159

 November  9, 1993, Decided    November  9, 1993, Filed

   SUBSEQUENT HISTORY: [***1] As Corrected November 15, 1993.

PRIOR HISTORY: Certiorari to the Court of Special Appeals (Circuit Court for  Anne Arundel  County). Martin A. Wolff, JUDGE

DISPOSITION: JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED FOR THE REASONS STATED HEREIN; CASE REMANDED TO THAT COURT WITH DIRECTIONS TO REMAND THE CASE TO THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.  COSTS IN THE COURT OF SPECIAL APPEALS AND IN THIS COURT TO BE PAID BY THE APPELLANT.

CORE TERMS:  fireman, duty, clerk, police officer, legal duty, invitee, police officers, matter of law, attendant, parking lot, customer, business visitor, summary judgment, teenagers, arrest, fight, restaurant, fighter, summon, owed, minutes, scene, food, Law of Torts, medical assistance, hidden danger, landowner, firemen, patron, owes

COUNSEL: Ronald H. Jarashow (William A. Franch and Robert R. Smith, Franch & Jarashow, P.A., on brief), Annapolis, for petitioner.

   Keith R. Siskind (Forman & Steinhardt, P.A., on brief), Glen Burnie, for respondent.

JUDGES: Murphy, C.J., and Eldridge, Rodowsky, McAuliffe, Chasanow, Karwacki, and Robert M. Bell, JJ.

OPINIONBY: MURPHY

OPINION: [*707] [**85] Our grant of certiorari in this case focuses upon the legal duty, if any, of a convenience store clerk to phone the police for emergency assistance when requested to do so on behalf of a business visitor who was being assaulted on the store-owned parking lot adjoining its store.

   I

   On May 15, 1988, David Griffith, an out of uniform off-duty police officer, his son, and several friends drove in a pickup[***2] truck to a 7-Eleven store in Ferndale, which was owned by the Southland Corporation.  After purchasing some carryout food, Griffith returned to his vehicle which was parked in Southland's parking lot adjoining its store.  As the occupants of the Griffith vehicle were eating the food, another vehicle carrying three teenagers entered the parking lot. These individuals, subsequently identified as Takovich, Palmer, and Haynie, began acting in a rowdy manner; they yelled obscenities at a young female in Griffith's vehicle and thereafter threw a beer can that struck Griffith's son on the shoulder.  Officer Griffith left the truck to speak with the teenagers at which time Takovich threw a beer can at him, striking him in the face.  Griffith then accosted and struggled with Takovich, identifying himself as a police officer, and informing Takovich [*708] that he was under arrest. Palmer and Haynie then came to Takovich's aid, and Griffith was hit with a tire iron in the face and collar bone.

   Griffith directed his son to enter the store and have the clerk call for police assistance; Griffith then fled to a nearby gas station to seek help.  The station attendant called the police but was[***3] also attacked by one of the teenagers. Thereafter, Griffith was punched and kicked in the gas station by the three teenagers. As a consequence of the altercation, Griffith was seriously injured. n1

n1 Griffith's three assailants were later apprehended by the police and charged with criminal assault and battery.

   Griffith filed a civil suit for money damages in the Circuit Court for Anne Arundel County against his three assailants for assault and battery and against Southland Corporation for negligence. n2 In his complaint, after reciting the events that resulted in his injuries, Griffith averred that Southland, through its employee, had a legal duty to aid or attempt to aid him while he was being assaulted by the teenagers and also had a duty to exercise reasonable care in protecting him from the assault.  Griffith alleged that Southland breached these legal duties, and in particular by refusing to call for police assistance after being requested to do so.

n2 Default judgments were entered against the three individuals.

[***4]

   Answering Griffith's complaint, Southland generally denied liability.  In answer to interrogatories propounded upon Griffith, the officer stated that his son had asked the clerk in the store to call the police for assistance on three separate occasions in the course of the melee, but that the clerk refused to take such action.

    Southland moved for summary judgment; it claimed that it was entitled to judgment as a matter of law because the so-called "fireman's rule," applicable as well to police officers, n3 [*709] precluded recovery in a negligence action against it by a police officer injured by a negligently created risk that was the very reason for the officer's presence on the scene. Southland's summary judgment motion also claimed that, as a matter of law, it had no legal duty to protect Griffith against injury which he sustained in attempting to effectuate the arrest on its parking lot.

n3 Although the rule is referred to as the fireman's rule, it also applies to police officers. See Flowers v. Rock Creek Terrace, 308 Md. 432, 442 n. 4, 520 A.2d 361 (1987) ("All courts addressing the issue have taken the position that the standard of care owed to firemen applies equally to policemen"); Sherman v. Suburban Trust Co., 282 Md. 238, 242, 384 A.2d 76 (1978).

[***5]

   Southland's motion was supported by an affidavit of the store clerk who stated that she was completely unaware of any fighting on the store parking lot until a boy, on one occasion only, told her to call the police and say, "Code 13." In her affidavit, the store clerk said that she immediately called the police, as directed.

   In opposition to Southland's motion, Griffith maintained that the fireman's rule was inapplicable as it did not apply to an off-duty police officer whose status was that of a volunteer.  Accompanying his opposition to the summary judgment motion was Griffith's own affidavit which recited that standard police procedure, which he followed, was to call for police assistance to quell the disorderly conduct of the teenagers; that it took the police ten minutes to arrive after they were called; but had they been contacted when first requested, the response would have been immediate and Griffith's injuries would not have been as severe.

   Griffith's fifteen-year-old son, also by affidavit, recounted that following Takovich's arrest, his father faced the 7-Eleven store and yelled, "call the police." The son stated in his affidavit that he then stuck his head through the [***6] doorway of the store and told the clerk to contact the police because a police officer needed help.  He said that he returned to the store thirty seconds later and again told the clerk to call the police and notify them that it was a Code 13 for ID # A-436 which was his father's ID number. n4 He also stated that the [*710] clerk ignored this request and laughed at him.  He said that he returned to the 7-Eleven store a third time, pulled the clerk over to the telephone, dialed 911, and told the clerk to give the operator the address of the store.  The son said that approximately two minutes after the 911 call was made, an Anne Arundel County Police Officer arrived on the scene. He concluded his affidavit, stating:

   "My initial request to contact the police was made simultaneously with the beginning of the struggle.  My second request to contact the police came about thirty seconds after the first request.  The third time I entered the store was approximately two or three minutes after the second request to contact the police was made."

n4 A Code 13 means that an officer needs assistance.

[***7]

   Upon this state of the pleadings, the court (Wolff, J.) concluded that Griffith ceased to be "off duty" when he undertook to make the arrest. It determined that the fireman's rule came into play as soon as Griffith announced that he was a police officer and consequently, as a matter of law, there was no liability on the part of Southland for any of the ensuing actions that contributed to Griffith's injuries.  The court thus granted summary judgment in Southland's favor.

   Griffith appealed.  The Court of Special Appeals, by a divided panel, reversed the summary judgment in Southland's favor and remanded the case for further proceedings.  Griffith v. Southland Corp., 94 Md.App. 242, 617 A.2d 598 (1992). In its opinion, the court discussed the rationale behind the fireman's rule, namely, that fire fighters and police officers generally cannot recover tort damages against a property owner if injured in the performance of duty by a risk negligently created upon the property.  It explained, however, that a police officer or fire fighter is not barred from recovery under the fireman's rule if the negligent actor has an opportunity to but fails[***8] to warn the safety officer of a known preexisting hidden danger. Under the circumstances of this case, the court concluded (accepting as true the allegations in Griffith's complaint) that the clerk's refusal to call 911 was "an event in the nature of a hidden danger." Id. at 253, 617 A.2d 598. Reasoning that the clerk's refusal to call the police could [*711] not have been anticipated by the officer and was thus an unforeseeable hidden danger, the court found that the fireman's rule did not protect Southland.  It held that "when a police officer is in danger during the performance of his or her duties protecting patrons on the premises of a business, and requests, directly or indirectly, that an employee of the business who is not in the path of the danger summon aid via the 911 system, then that employee has a legal obligation to do so promptly." Id. at 258-59, 617 A.2d 598.

   The court further stated that its holding did not impose a change in existing law; it said that: "there is no precedent which permits a bystander to refuse to call 911 when not exposed to imminent danger." Id. at 257, 617 A.2d 598 [***9](emphasis in original).  Rather, the court said that its opinion merely cultivated and improved an area of Maryland law that had previously been silent. n5 Consequently, the court rejected Southland's argument that, as a matter of law, Griffith could not recover because he was injured during the performance of his duty by a hazard which that duty required him to confront.

 n5 The court distinguished the circumstances in this case from the traditional situation where "'the law has persistently refused to impose on a stranger the moral obligation of common humanity to go to the aid of another human being who is in danger, even if the other is in danger of losing his life.'" Griffith, 94 Md.App. at 256, 617 A.2d 598 (quoting W. Page Keeton et. al., Prosser and Keeton on the Law of Torts § 56, at 375 (5th ed. 1984)).

   II

   Before us, Southland reasserts its view that the fireman's rule bars Griffith from recovering tort damages from it.  It also contends that imposition of liability[***10] for failure of the clerk to call 911 violates the traditional common law rule that a person has no legal duty to rescue or aid another person who is in peril.  Summary judgment in its favor was therefore proper, Southland maintains, and asks that we reinstate that judgment by reversing the Court of Special Appeals.

   [*712] A trial court may grant summary judgment when there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Md.Rule 2-501(e).  Under this rule, "a trial court determines issues of law; it makes rulings as a matter of law, resolving no disputed issues of fact." Beatty v. Trailmaster, 330 Md. 726, 737, 625 A.2d 1005 (1993). In reviewing a disposition by summary judgment, an appellate court resolves all inferences against the party making the motion.  Rosenberg v. Helinski, 328 Md. 664, 674, 616 A.2d 866 (1992). Because a trial court decides issues of law when granting a summary judgment, the standard of appellate review is whether the trial court was legally correct.  Beatty, 330 Md. at 737, 625 A.2d 1005; [***11]Rosenberg, 328 Md. at 674, 616 A.2d 866; Heat & Power v. Air Products , 320 Md. 584, 592, 578 A.2d 1202 (1990).

   To recover for negligence, a plaintiff must prove the existence of four elements: a duty owed to him, a breach of that duty, a causal connection between the breach and the injury, and damages.  Lamb v. Hopkins, 303 Md. 236, 241, 492 A.2d 1297 (1985); Scott v. Watson, 278 Md. 160, 165, 359 A.2d 548 (1976); Peroti v. Williams, 258 Md. 663, 669, 267 A.2d 114 (1970). Unless the plaintiff can establish that the defendant owes a tort duty to the plaintiff, there can be no liability in negligence and the defendant is entitled to judgment as a matter of law. Faya v. Almaraz, 329 Md. 435, 448, 620 A.2d 327 (1993); Village of Cross Keys v. U.S. Gypsum, 315 Md. 741, 751, 556 A.2d 1126 (1989); Jacques v. First Nat'l Bank, 307 Md. 527, 532, 515 A.2d 756 (1986);[***12] Ashburn v. Anne Arundel County, 306 Md. 617, 627, 510 A.2d 1078 (1986); W. Va. Central R. Co. v. Fuller, 96 Md. 652, 666, 54 A. 669 (1903).

   In Village of Cross Keys, supra, we said that "a tort duty 'is . . . an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection,' and that a tort duty is not necessarily coextensive with a moral duty." 315 Md. at 752, 556 A.2d 1126 (quoting in part Jacques, 307 Md. at 533-34, 515 A.2d 756 and W. Page Keeton et. al., Prosser and Keeton on the Law of Torts, §§ 53, [*713] 56, at 357, 375 (5th ed. 1984)).  In addition, we explained that among the factors to be considered in determining whether a tort duty should be recognized are
  
"'[t]he foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame[***13] attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost and prevalence of insurance for the risk involved.'"
 
Village of Cross Keys, 315 Md. at 752, 556 A.2d 1126 (quoting Tarasoff v. Regents of University of California, 17 Cal.3d 425, 131 Cal.Rptr. 14, 551 P.2d 334, 342 (1976)).

   It is with these principles in mind that we consider the question of duty in the instant case.  For purposes of our analysis, we accept the allegations of Officer Griffith's complaint as true.  Thus, we will assume that the 7-Eleven clerk refused to call the police when twice requested by Griffith's son, and did so only on the third occasion after the son dialed 911 and insisted that the clerk ask for assistance and give the store's address.

   III

   A. The Fireman's Rule

   Our cases hold that the doctrine known as the fireman's rule generally prevents fire fighters and police officers injured in the course of[***14] their duties from recovering tort damages from those whose negligence exposed them to the risk of injury.  See Flowers v. Rock Creek Terrace, 308 Md. 432, 520 A.2d 361 (1987); Sherman v. Suburban Trust Co., 282 Md. 238, 384 A.2d 76 (1978); Aravanis v. Eisenberg, 237 Md. 242, 206 A.2d 148 (1965); Steinwedel v. Hilbert, 149 Md. 121, 131 A. 44 (1925). Prior to 1987, the rationale behind the fireman's rule focused on the status of the safety officer on the landowner's premises. We generally held that fire fighters [*714] and police officers were licensees when they entered property in the performance of their duties; and consequently the landowner owed them no duty of reasonable care.

   In Flowers, a 1987 case involving the proper application of the fireman's rule, we departed from traditional principles of landowner's or premises liability in cases involving fire fighters or police officers, i.e., whether their status was that of a licensee or invitee. As to these individuals, we said, 308 Md. at 447-48, 520 A.2d 361,[***15] that the fireman's rule was "best explained by public policy"; that it is the nature of the safety officer's occupation that limits the officer's ability to recover in tort for work-related injuries.  We explained in Flowers, id. at 447-48, 520 A.2d 361:
 
"Instead of continuing to use a rationale based on the law of premises liability, we hold that, as a matter of public policy, firemen and police officers generally cannot recover for injuries attributable to the negligence that requires their assistance.  This public policy is based on a relationship between firemen and policemen and the public that calls on these safety officers specifically to confront certain hazards on behalf of the public.  A fireman or police officer may not recover if injured by the negligently created risk that was the very reason for his presence on the scene in his occupational capacity. Someone who negligently creates the need for a public safety officer will not be liable to a fireman or policeman for injuries caused by this negligence."

   The fireman's rule does not, as we said in Flowers, id. at 448, 520 A.2d 361, [***16] bar fire fighters from recovering tort damages for all improper conduct.  There, we said that under our cases, "[n]egligent acts not protected by the fireman's rule may include failure to warn the firemen of pre-existing hidden dangers where there was knowledge of the danger and an opportunity to warn." Id. We further noted that negligent acts not protected by the rule may also include "acts which occur subsequent to the safety officer's arrival on the scene and which are outside of his anticipated occupational hazards." Id. Citing Aravanis v. Eisenberg, 237 Md. 242, 206 A.2d 148 [*715] (1965), we reiterated in Flowers that the fireman's rule does not apply when a public safety officer sustains injuries after the initial period of his anticipated occupational risk, or from perils not reasonably foreseeable as part of that risk; in such situations, a fire fighter or police officer is owed a duty of due care.  In this regard, it is evident that if the act of negligence that causes the injury is something other than what necessitated the presence of the safety officer, then the fireman's rule does not apply.  See W. Page[***17] Keeton et al., Prosser and Keeton on the Law of Torts § 61, at 431 (5th ed. 1984) ("the fireman's rule has been held only to apply when the firefighter or police officer is injured from the very danger, created by the defendant's act of negligence, that required his professional assistance and presence at the scene in the first place, and the rule will not shield a defendant from liability for independent acts of misconduct which otherwise cause the injury").

   We cannot agree with the Court of Special Appeals that the clerk's failure to call 911 was an event in the nature of a hidden danger or an unanticipated risk rendering the fireman's rule inapplicable. n6 The danger incurred by Officer Griffith in attempting to make an arrest was not hidden; indeed, police officers are trained to confront these situations and are necessarily aware of the danger associated with arresting disorderly individuals.  Neither is refusal to summon assistance for a police officer in distress an unanticipated or unforeseeable occupational risk.

n6 The cases generally indicate that hidden dangers are typically physical conditions on the premises, such as property defects or the storage of hazardous chemicals.

[***18]

   The fireman's rule is not applicable, however, for other reasons.  The alleged negligence -- refusal to call the police to assist Griffith when timely requested -- was not what necessitated his presence on Southland's premises. Originally, he entered the store as a customer for the sole purpose of purchasing food. He was at that time, under our cases, a "business invitee" to whom the store owner owed a duty to use reasonable and ordinary care to keep the premises safe and to [*716] protect the invitee from injury caused by an unreasonable risk which the invitee, by exercising ordinary care for his own safety, will not discover.  See Sherman v. Suburban Trust Co., supra, 282 Md. at 242, 384 A.2d 76, and cases there cited.  That Southland's premises included its parking lot, upon which the assault occurred, does not lessen the extent of the duty owed by it to Griffith.  See Scott v. Watson, supra, 278 Md. at 163-66, 359 A.2d 548. As we see it, the only issue in the case is whether, under the circumstances, Southland had a legal duty to Griffith to come to his aid in a time of peril by promptly[***19] calling for police assistance when requested.

   B. Duty to Aid

   Absent statutes to the contrary, or the existence of a legally cognizable special relationship, the law is clear that a person has no legal duty to come to the aid of another in distress, even if the aid can be provided at no risk or cost to the other person.  See Lamb v. Hopkins, supra, 303 Md. at 242, 492 A.2d 1297; Keeton et al., supra, § 56, at 375; Harper et al., 3 The Law of Torts § 18.6, at 718-19 (2nd ed. 1986); Restatement (Second) of Torts § 314 (1965). Thus, "[t]he fact that the actor realizes or should realize that action on his part is necessary for another's aid or protection does not of itself impose upon him a duty to take such action." Restatement, supra, § 314. n7

n7 Comment c of § 314 states:

   "The rule stated in this Section is applicable irrespective of the gravity of the danger to which the other is subjected and the insignificance of the trouble, effort, or expense of giving him aid or protection.

   "The origin of the rule lay in the early common law distinction between action and inaction, or 'misfeasance' and 'non-feasance.' In the early law one who injured another by a positive affirmative act was held liable without any great regard even for his fault.  But the courts were far too much occupied with the more flagrant forms of misbehavior to be greatly concerned with one who merely did nothing, even though another might suffer serious harm because of his omission to act.  Hence liability for non-feasance was slow to receive any recognition in the law.  It appeared first in, and is still largely confined to, situations in which there was some special relation between the parties, on the basis of which the defendant was found to have a duty to take action for the aid or protection of the plaintiff."

[***20]

   [*717] Courts in some jurisdictions have created a number of narrowly drawn "special relationship" exceptions to this general common law rule which give rise to a duty to render aid; they include, inter alia, common carrier to passenger, innkeeper to guest, and shopkeeper to business visitor. See Keeton et al., supra, § 56, at 376-77.

   The only potential relevant exception to the general rule in the case before us is the shopkeeper-business visitor relationship.  Although no Maryland case has ever applied this exception, the authorities have stated that a shopkeeper owes a legal duty to render aid to an invitee when the shopkeeper knows that the invitee is ill or injured on the business premises.  See Keeton et al., supra, § 61, at 426 (A landowner must act reasonably to render aid or other care when he knows or should know that the invitee is ill or injured); Harper et al., supra, § 18.6, at 722-23 ("One who invites others on his premises has been held bound to take reasonable steps to rescue them from perils that his negligence played no part in creating"); Restatement, supra, § 314A (Possessor of land owes a duty to its invitees to render aid after[***21] the landholder knows or has reason to know that they are ill or injured).

   Decisions from other jurisdictions also follow the rule that a storekeeper owes a legal duty to aid its business invitees. In Drew v. LeJay's Sportsmen's Cafe, Inc., 806 P.2d 301 (Wyo. 1991), the Supreme Court of Wyoming held that a restaurant has a duty to summon medical assistance in a reasonable time for a choking victim, but has no duty to provide first aid to the victim.  In particular, the court found that the following jury instruction issued by the trial court was proper.

   "A restaurant whose employees are reasonably on notice that a customer is in distress and in need of emergency medical attention has a legal duty to come to the assistance of that customer. However, a restaurant does not have a duty to provide medical training to its food service personnel, or medical rescue services to its customers who become [*718] ill or injured through no act or [sic] omission of the restaurant or its employees.  A restaurant in these circumstances meets its legal duty to a customer in distress when it summons medical assistance within a reasonable time."
 
Drew, 806 P.2d at 304.[***22]

   Similar facts to the instant case existed in Jones v. Kwik Karol and Ginalco, Inc., 490 So.2d 664 (La.Ct.App.1986). In that case, the plaintiff was outside of a convenience store/gas station pumping gas into his car.  Two men began verbally harassing the plaintiff as he filled his tank and continued to torment him as he walked toward the store for a receipt.

   Sensing trouble, a female customer asked the attendant to call the police. Approximately four minutes later, one of the two men struck the plaintiff and a struggle ensued where the two men battered the plaintiff.  One witness stated that the store attendant simply stood inside the store and watched the fight. The attendant claimed that he called his supervisor after the fight began and that his supervisor advised him to call the police.  The fight was over, however, before he called the police.  The trial court found that the defendant store owner did not breach its duty to reduce the risk of harm to the plaintiff. 

   The Louisiana intermediate appellate court reversed the trial court and concluded that the store's employee breached its duty to exercise reasonable care for the protection and safety[***23] of its patrons. Also finding that this breach was a proximate cause of plaintiff's injuries, the court said:

   "[The attendant] knew that the two white men were acting suspiciously (trying to steal gas) before [plaintiff] walked into the store.  [The attendant] acknowledged that a white female told him to call the police three to five minutes before the altercation began.  Even though he could clearly see that a patron was being beaten, [the attendant] did not call police until after he telephoned his supervisor and apparently after [plaintiff] asked him to do so. 

   "[The attendant] could have easily reduced or removed the risk of harm to plaintiff by calling the police when [*719] requested to do so, first by [plaintiff] and then by others before the fight began.  He could have stepped outside to better see and hear what was going on.  He could have told the men he was going to call the police or ordered them to depart.  Instead, he dismissed every request to call the police and neglected to take any action until the fight was almost over."
 
Jones, 490 So.2d at 666.

   It is evident from the decisions in other jurisdictions and from the various authorities[***24] that a shopkeeper has a legal duty to come to the assistance of an endangered business visitor if there is no risk of harm to the proprietor or its employees.  In this regard, we adopt § 314A of the Restatement , and in particular embrace the proposition that an employee of a business has a legal duty to take affirmative action for the aid or protection of a business invitee who is in danger while on the business's premises, provided that the employee has knowledge of the injured invitee and the employee is not in the path of danger. n8

n8 The comments to § 314A of the Restatement further clarify the rule: Comment d states that "[t]he duty to give aid to one who is ill or injured extends to cases where the illness or injury is due to natural causes, to pure accident, to the acts of third persons, or to the negligence of the plaintiff himself . . . ." Comment f states that "[t]he defendant is not required to take any action until he knows or has reason to know that the plaintiff is endangered, or is ill or injured . . . .  In the case of an ill or injured person, he will seldom be required to do more than give such first aid as he reasonably can, and take reasonable steps to turn the sick man over to a physician, or to those who will look after him and see that medical assistance is obtained."

   In addition, Illustration 5 of § 314A cites a relevant example:
 
"A, a patron attending a play in B's theater, suffers a heart attack during the performance, and is disabled and unable to move.  He asks that a doctor be called.  B's employees do nothing to obtain medical assistance, or to remove A to a place where it can be obtained.  As a result, A's illness is aggravated in a manner which reasonable prompt medical attention would have avoided.  B is subject to liability to A for aggravation of his illness."

[***25]

   It is clear that, under the allegations of his complaint, taken as true, Griffith enjoyed the status of a business visitor when he entered the store and purchased food. The fact that [*720] he was an off-duty police officer did not alter that status, and he remained a business invitee while he sat in the truck on the store's parking lot and consumed the food. Nor did he cease to be a business visitor when, in responding to the attack upon him and his son, he confronted and attempted to arrest his assailants in the course of the fight.

   Because Officer Griffith was a business visitor, Southland, through its employee, owed him a legal duty to aid (call the police) when he requested assistance.  Clearly, a material factual dispute exists as to whether the employee called the police when requested to do so.  As earlier noted, the employee maintains that she immediately made the call; Griffith's son, in his affidavit, averred that she twice refused to summon assistance and only on the third occasion after the son dialed 911 did she assist by giving the operator the store's address.

   We therefore conclude that the entry of summary judgment in favor of Southland was inappropriate in this[***26] case because, under the facts alleged by Griffith, we cannot say, as a matter of law, that the store clerk had no legal duty to phone for emergency assistance.

   JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED FOR THE REASONS STATED HEREIN; CASE REMANDED TO THAT COURT WITH DIRECTIONS TO REMAND THE CASE TO THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.  COSTS IN THE COURT OF SPECIAL APPEALS AND IN THIS COURT TO BE PAID BY THE APPELLANT. 

Robert H. CAMPBELL v. MARYLAND REAL ESTATE APPRAISERSCOMMISSION 
No. 48, September Term, 1993
 
COURT OF APPEALS OF MARYLAND
 
332 Md. 477; 632 A.2d 162; 1993 Md. LEXIS 154

 October  29, 1993, Decided    October  29, 1993, Filed

   PRIOR HISTORY: [**1]  
Appeal from the Circuit Court for  Anne Arundel  County pursuant to certiorari to the Court of Special Appeals; Lawrence H. Rushworth, Judge.

DISPOSITION: JUDGMENT VACATED; CASE REMANDED TO THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY FOR FURTHER PROCEEDINGS; COSTS TO BE PAID BY THE APPELLEE.

COUNSEL: P. Tyson Bennett (Cohen, Bennett, Greene & Davis-Loomis, P.A., on brief), Annapolis, for appellant.

   Elizabeth Trimble, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., and Kenneth W. Long, Jr., Staff Atty., on brief), Baltimore, for appellee.

JUDGES: Murphy, C.J., and Eldridge, Rodowsky, McAuliffe, Chasanow, Karwacki and Robert M. Bell, JJ.

OPINIONBY: PER CURIAM

OPINION: [*478] Robert H. Campbell, the appellant, filed a Complaint for Declaratory Judgment and Injunctive Relief in the Circuit Court for Anne Arundel County against the Maryland Real Estate Appraisers Commission, the appellee. Appellee filed a preliminary motion on the ground of improper venue.  After a hearing on that motion, the court agreed with appellee.  An appeal was filed to the Court of Special Appeals, but before any consideration of the case by the intermediate appellate court, we issued a writ of certiorari on our own motion, 331 Md. 178, 626 A.2d 967.[**2]

   After oral argument of the appeal, the appellee conceded that the venue in the subject action or any other action filed by the appellant against the appellee lies in Anne Arundel County.  Accordingly, we shall vacate the judgment entered by the Circuit Court for Anne Arundel County on January 7, 1993, and remand the case for further proceedings.

   JUDGMENT VACATED; CASE REMANDED TO THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY FOR FURTHER PROCEEDINGS; COSTS TO BE PAID BY THE APPELLEE. 

Donald Warren JOHNSON v. STATE of Maryland 
No. 141, September Term, 1992
 
COURT OF APPEALS OF MARYLAND
 
332 Md. 456; 632 A.2d 152; 1993 Md. LEXIS 155

 October  29, 1993, Decided    October  29, 1993, Filed

   PRIOR HISTORY: [***1] Certiorari to Court of Special Appeals (Circuit Court for  Anne Arundel  County). Martin A. Wolff, JUDGE

DISPOSITION: JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED.  CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO REMAND TO THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY FOR A NEW TRIAL.  COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID BY THE ANNE ARUNDEL COUNTY.

CORE TERMS:  rape, cocaine, sexual conduct, sex, ulterior motive, probative value, freaking, admissible, relevance, shield, bias, motive, freaked, sexual relations, cross-examination, crack cocaine, probative, raped, inadmissible, distribute, inflammatory, prejudicial, chastity, night, co-defendant, outweighed, falsely, sexual, sexual activity, motive to lie

COUNSEL: Mark Colvin, Asst. Public Defender (Stephen E. Harris, Public Defender), Baltimore, on brief, for petitioner.

   David P. Kennedy, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., of Maryland), Baltimore, on brief, for respondent.

JUDGES: Murphy, C.J., and Eldridge, Rodowsky, McAuliffe, Chasanow, Karwacki and Robert M. Bell, JJ.

OPINIONBY: BELL

OPINION: [*458] [**153] The issue this case presents is whether, when the defense to a charge of rape is that the victim was exchanging sex for drugs, the rape victim's admission to having previously engaged in such conduct is inadmissible pursuant to Maryland Code (1957, 1992 Repl.Vol.), Art. 27, § 461A ("the rape shield statute"). n1 The Circuit Court for Anne Arundel County ruled that it is inadmissible and the Court of Special Appeals affirmed.  Johnson v. State, 93 Md.App. 522, 613 A.2d 450 (1992).[***2] For the reasons hereinafter stated, we shall reverse.

 n1 See discussion infra part III.

   [*459] I.

   The victim, who was addicted to crack cocaine, accused the petitioner and Robert Galloway, n2 inter alia, of raping her on the morning of March 9, 1991. According to the victim's testimony, her being raped was the culmination of an evening and night of drug use, which consumed all, or virtually all, of the victim's previous week's wages.  Indeed, according to the victim's testimony, the rape occurred while she was attempting to make yet another purchase of cocaine, with funds obtained from a friend.

n2 Robert Galloway was tried with and convicted of the same offenses as the petitioner; however, this appeal does not involve him since he has elected not to pursue an appeal.

   The petitioner's defense was that the sexual relations with the victim [***3]occurred while the victim was "freaking" for drugs, i.e. exchanging sex for drugs.  He testified that one William Jackson promised the victim crack cocaine if she would engage in sexual relations, that offer being explicitly made to apply to sexual relations with both the petitioner and his co-defendant, as well as Jackson.  The "sex in exchange for drugs agreement" was confirmed by co-defendant Galloway.  When Jackson did not "pay" the victim, she accused the petitioner and his co-defendant of rape. In corroboration of his defense, the petitioner proffered that the victim had freaked for drugs in the quite recent past.  He proposed to prove that fact through the cross-examination of the victim with regard to her prior sexual conduct. By filing a motion in limine, he sought a pretrial ruling as to the propriety of doing so.  See Rainville v. State, 328 Md. 398, 404-405, 614 A.2d 949, 952 (1992); Prout v. State, 311 Md. 348, 355-356, 535 A.2d 445, 448-449 (1988); Watson v. State, 311 Md. 370, 372, 535 A.2d 455 457 (1988); Thomas v. State, 301 Md. 294, 316, 483 A.2d 6, 17-18 (1984),[***4] cert. denied, 470 U.S. 1088, 105 S.Ct. 1856, 85 L.Ed.2d 153 (1985).

   At an in-camera hearing, held to resolve the issue, see Article 27, § 461A(b), n3 the petitioner elicited testimony from [*460] the victim that she had been freaking for crack cocaine for approximately six months, usually in Pioneer City, across the street from Meade Village, where the alleged rape occurred.  She had freaked for crack cocaine most recently, she said, one week prior to being raped. The victim explained that when she wanted to get high, she would engage in sex for crack cocaine at anytime of the day or night. She specifically denied freaking for cocaine on this occasion or having previously engaged in sexual relations with either the petitioner or his co-defendant.

 n3 Maryland Code (1957, 1992 Repl.Vol.) Article 27, § 461A(b) provides:

   (b) In camera hearing.  -- Any evidence [relating to specific instances of the victim's prior sexual conduct], may not be referred to in any statements to a jury nor introduced at trial without the court holding a prior in camera hearing to determine the admissibility of the evidence.  If new information is discovered during the course of the trial that may make the evidence . . . admissible, the court may order an in camera hearing to determine the admissibility of the proposed evidence . . . .

[***5]

   The trial court ruled that the rape shield statute rendered the evidence inadmissible. It reasoned:

   Then we're coming down that, three, that it supports a claim that the victim has an ulterior motive in accusing the Defendant; or four, it's offered for the purpose of impeachment.  And what we find here is the defense is consent, and the defense wishes to put in prior sexual conduct of exchanging sex for drugs. None of these have occurred with the Defendants.  So that rules them out on an issue of consent.

   Then we have to look then what is -- assuming that it's relevant -- which I'm not making that assumption yet, and assuming its material, we have to weigh its inflammatory versus prejudicial nature [sic].  The fact that she may have done it before -- well, cases say that if one is a prostitute, that does not go to the issue of consent.  Here just because she may have done it in the past, doesn't show me any ulterior motive or it's going to make it safe for her in the [*461] community. n[4] That I just do not accept.  I have to believe that the prejudicial factor is greater than any probative factor as to that.

   Now, what I was waiting for, curiously, if she would have denied[***6] this, and you had testimony to the fact to prove this, then it would have come in for impeachment purposes.  And that -- but she has admitted to it.  So once she's admitted to it, it's not in for impeachment purposes.  And based on that just to let it in that she may have done this on other occasions, that is exchange sex for drugs over a six month period, I think does not qualify to let it become admissible. So I am going to deny the motion.
 
The jury convicted the petitioner of first and second degree rape, first and second degree sexual offense, perverted practices and battery.  The court sentenced him to a total of twelve years imprisonment.

n4 The court was referring to a theory espoused by the defense that the victim may have been proceeding on the basis that, if a person did not pay for sex and if she accused that person of rape, no one else would dare try to rip her off again.

   Affirming, the Court of Special Appeals held that the trial court did not abuse its discretion in weighing the prejudicial impact[***7] of the proffered evidence against its probative value
 
in view of the great potential that the jury would have viewed the victim simply as a fallen woman and not focused on whether they believed her testimony that she was prepared to pay for the drugs as opposed to the testimony of appellant and Jackson that the understanding was that sex would be exchanged for drugs.
 
93 Md.App. at 538, 613 A.2d at 458. The court further opined:
 
Whether the jury may have been more inclined to believe that the victim had consented on this occasion if it had been provided with the evidence that she had exchanged sex for drugs in the past is problematic, n[5] since she made clear that [*462] she had never engaged in sexual relations for drugs with the participants in this case.  The net effect of admitting the evidence of prior sexual conduct would have been that the proceedings could have been refocused on an inquiry into prior sexual encounters with other partners.
 
Id. at 537-38, 613 A.2d at 458.

n5 The intermediate appellate court's concern that there could be "problems" with regard to whether, or not, the jurors would have believed the victim consented to sexual intercourse had they been advised of her prior "freaking" activities is not a reason to deny the defendant the opportunity fully to present his defense.

[***8]

   II.

   The petitioner asserts that the proffered testimony that the victim habitually freaked for crack cocaine is highly probative; it is relevant, and material, to whether, on the night in question, she actually was freaking for crack cocaine, but became angry when she did not receive the promised consideration.  This, he submits, "supports a claim that the victim had an ulterior motive in accusing the defendant of the crime." § 461A(a)(3). n6 The petitioner also posits that if, notwithstanding its relevance, materiality, and high probative value, the proffered testimony is nevertheless inadmissible because it does not fit within an enumerated exception, then the rape shield statute is unconstitutional as conflicting with his rights of confrontation, to present a defense, and to due process.

n6 The petitioner also maintains that the prosecutor put the victim's prior sexual conduct at issue, see § 461A(a)(4), by eliciting on direct examination her testimony that, when she was told to get down on her hands and knees, she said to the petitioner and his co-defendant that she was not there to freak for drugs, but she had the money to pay for them.  This kind of evidence, by itself, does not place the victim's past sexual activity at issue.  We believe that what is intended by that exception is that the State elicit affirmative evidence to characterize the victim's past sexual conduct. If, for example, the State had elicited evidence that, when raped the victim was a virgin, it may have placed the victim's prior sexual conduct at issue.  In that event, the defendant may then be able to rebut with evidence which tends to prove the contrary.  See Lowery v. State, 202 Md. 314, 319, 96 A.2d 20, 23 (1953).

[***9]

   Citing White v. State, 324 Md. 626, 598 A.2d 187 (1991), the State maintains that the trial court did not abuse its discretion when it decided that the evidence that the victim's past sexual [*463] activity was not sufficiently linked to the facts of the case to be relevant to the victim's alleged motive to falsify the rape charge.  Moreover, it asserts that the trial court exercised sound discretion in concluding that the prejudicial impact of the evidence of the victim's past sexual activity far outweighed its probative value. Finally, the State contends that the constitutional issue is not preserved for review. If preserved, however, the State says that the petitioner's argument is without merit because the proffered evidence is irrelevant; there is no constitutional right to the admission of irrelevant evidence.

   III.

   The rape shield statute provides, in pertinent part: (a) Evidence relating to victim's chastity.  -- Evidence relating to a victim's reputation for chastity and opinion evidence relating to a victim's chastity are not admissible in any prosecution for commission of a rape or sexual offense in the first or [***10]second degree.  Evidence of specific instances of the victim's prior sexual conduct may be admitted only if the judge finds the evidence is relevant and is material to a fact in issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value, and if the evidence is:

   (1) Evidence of the victim's past sexual conduct with the defendant; or

   (2) Evidence of specific instances of sexual activity showing the source or origin of semen, pregnancy, disease, or trauma; or

   (3) Evidence which supports a claim that the victim has an ulterior motive in accusing the defendant of the crime; or

   (4) Evidence offered for the purpose of impeachment when the prosecutor puts the victim's prior sexual conduct in issue.
 
Maryland Code (1957, 1992 Repl.Vol.) Article 27, § 461(a).  To be admissible, evidence of specific instances of a victim's past [*464] sexual conduct must fit within one of the enumerated exceptions and be found by the trial court to be relevant and material to a fact at issue in the case and to have probative value greater than its inflammatory or prejudicial nature.  Section 461A(a)(3), pertaining to a rape victim's ulterior motive for making[***11] a false accusation, is statutory recognition of the defendant's right to inquire into the bias or prejudice of the victim.  That right of inquiry is conditioned, as are the other exceptions, at the threshold, however, on the prior sexual conduct evidence having special relevance to a material issue in the case, and its probative value being greater than its prejudicial impact.  The latter requirement reflects the legislative intent to exclude evidence whose only relevance is to prove the victim's reputation for chastity. This is consistent with the purpose this Court has attributed to the weighing process required to be conducted when prior bad acts evidence is sought to be admitted against a defendant.  See Harris v. State, 324 Md. 490, 498, 597 A.2d 956, 960 (1991); Howard v. State, 324 Md. 505, 514, 597 A.2d 964, 968 (1991).

   A trial court's ruling on the admissibility of specific instances of a victim's past sexual conduct is subject to review on an abuse of discretion standard.  White, 324 Md. at 637, 598 A.2d at 192. See Thomas, 301 Md. at 317, 483 A.2d at 18.[***12] See also State v. Allewalt, 308 Md. 89, 101-02, 517 A.2d 741, 747 (1986).

   The rape shield statute was enacted in response to trial courts admitting, as a matter of course, in rape cases, evidence of the victim's chastity or lack of chastity whenever the defense of consent was raised.  See Giles v. State, 229 Md. 370, 397-80, 183 A.2d 359, 363 (1962), vacated and remanded on other grounds , 386 U.S. 66, 87 S.Ct. 793, 17 L.Ed.2d 737 (1967); Humphries v. State, 227 Md. 115, 121, 175 A.2d 777, 780 (1961). It was enacted, therefore,
 
"'to prevent defense counsel from putting the victim 'on trial,' from unfairly invading the victim's privacy, and from deflecting the jury's attention from the true issue.  The rule reflects recognition that the trial process at best is traumatic to the victim of sexual abuse.  If she had reason to [*465] believe that the most intimate details of her life are going to be bandied about the court room, many victims will decide that the game is not worth the [***13]candle and decline to file a complaint.'"
 
White, 324 Md. at 634, 598 A.2d at 634, quoting Goodson v. State, 566 So.2d 1142, 1149-50 (Miss.1990). Although anticipating an increase in the number of reported rapes, the legislative intention was not to prevent a defendant from being able to present a defense to a rape charge or to hamstring him or her unduly in his or her effort to do so:
 
"[The committee] took cognizance of the broad based support of the concept of limiting evidence relating to prior sexual conduct of a rape victim and that such a limitation would probably result in an increase in the percentage of rapes reported; that a statutory response to the inherent sensitivities of a traumatized victim could accommodate the constitutionally mandated rights and protections properly afforded a defendant in our criminal justice system; and that the weighing of inflammatory nature versus the probative value of specific instances of prior sexual conduct precludes possible admission of highly prejudicial evidence of limited probative value. Presently, it is the practice of some courts to admit [***14] evidence of any probative value irrespective of its inflammatory nature."
 
Report of Senate Judicial Proceedings Committee on Senate Bill No. 399 at 4; See also White, 324 Md. at 636, 598 A.2d at 192.

   IV.

   The petitioner seeks to prove that not only are the victim's prior "freaking" activities relevant, material and non-prejudicial, but that her rape allegation is but a vindictive response to not receiving drugs for the sexual relations she engaged in with the petitioner.  It is this frame of mind that the petitioner alleges supports his claim that she had an ulterior motive in falsely accusing him of rape. He posits that from proof that she was freaking for cocaine but was not "paid" the agreed consideration, a trier of fact could infer her frame of mind, [*466] from which it could then infer and, thus, conclude that the victim's testimony was infected with bias and prejudice against the defendants.

    Smallwood v. State, 320 Md. 300, 302, 577 A.2d 356, 356 (1990), involved the extent to which cross-examination to uncover a witness's prejudice and bias is permitted.  The defendant was[***15] charged with robbing a retail store, The Gap, by taking boxes of clothing.  Tracing the license tag of the car in which the robber effected his getaway led to the defendant's ex-girlfriend, who, on the day she spoke to the police, had broken up with the defendant and had filed assault charges against him.  Testifying for the State, she said that she regularly loaned her car to the defendant and that, on one particular Thursday in April, the defendant both failed to pick her up from work and gave her some clothing which bore price tags from The Gap.  Contending that it went to the witness's bias, interest, or motive to lie, the defendant sought to cross-examine his ex-girlfriend concerning the outcome of assault charges she had previously brought against him.  The court refused to allow it.  320 Md. at 302-03, 577 A.2d at 357. Urging that the ruling was prejudicial error, 320 Md. at 304, 577 A.2d at 357, the defendant argued that the witness' failure to obtain convictions in the previous cases was evidence of her vindictiveness, which he should have been allowed to demonstrate to the jury so that they [***16]would be able adequately to assess the witness' testimony.  Id.

   Having reviewed pertinent Supreme Court cases, e.g., Delaware v. Van Arsdall, 475 U.S. 673, 678-79, 106 S.Ct. 1431, 1435, 89 L.Ed.2d 674, 682-83 (1986); Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974) and Maryland appellate decisions, in particular, Cumberland and Western Port Transit Company v. Metz, 158 Md. 424, 149 A. 4, reargument denied, 158 Md. 424, 149 A. 565, appealed dismissed sub nom., American Oil Company v. Metz, 282 U.S. 801, 51 S.Ct. 40, 75 L.Ed. 720 (1930) (cross-examination should be allowed in order to determine the reasons for acts or statements referred to on direct examination), we concluded in Smallwood:
 
[*467] A judge must allow a defendant wide latitude to cross-examine a witness as to bias or prejudice, Bruce [v. State], 318 Md. [706], 727, 569 A.2d [1254], 1265[***17] [(1990)], but the questioning must not be allowed to stray into collateral matters which would obscure the trial issues and lead to the factfinder's confusion.  [State v.] Cox, 298 Md. [173,] 178, 468 A.2d [319,] 321 [(1983)].
 
320 Md. at 307-08, 577 A.2d at 359. We rejected the trial court's conclusion that the proffered evidence was irrelevant to the defendant's guilt or innocence and would have led to the jurors being confused about, or disregarding, what they were to decide.  Id. at 309, 577 Md. at 360. We also said:
 
[F]or purposes of cross-examination of a prosecution witness in order to show bias or motive, "[T]he crux of the inquiry insofar as its relevance is concerned, is the witness' state of mind.  What is essential to the preservation of the right to cross-examine is that the interrogator be permitted to probe into whether the witness is acting under a hope or belief of leniency or reward,"
 
or out of spite or vindictiveness.  (Emphasis in original).  Smallwood, 320 Md. at 309-310, 577 A.2d at 360,[***18] quoting with approval, Brown v. State, 74 Md.App. 414, 420-21, 538 A.2d 317, 320 (1988), quoting Fletcher v. State, 50 Md.App. 349, 359, 437 A.2d 901, 906 (1981). The inquiry sought to be made in Smallwood, we were convinced,
 
had substantial probative force and there was no indication that defense counsel was harassing the witness by asking an unfounded question or seeking primarily to embarrass the witness,
 
Id., 320 Md. at 310, 577 A.2d at 360-361, quoting Cox, 298 Md. at 184, 468 A.2d at 324, and "went to the 'very heart' of [the witness's] bias.'" Id.

   The Court of Special Appeals reached a similar result in a statutory rape case, decided prior to enactment of the rape shield statute.  In State v. DeLawder, 28 Md.App. 212, 344 A.2d 446 (1975), that court held that evidence of bias or motive to lie is relevant when the defendant denies having carnal [*468]knowledge of the victim and, therefore, is admissible pursuant to the constitutionally-based[***19] right of effective cross-examination. Id. at 226-27, 344 A.2d at 454-55, relying on Davis, 415 U.S. at 315-317, 320, 356, 94 S.Ct. at 1110, 1112, 39 L.Ed.2d at 353-354. In DeLawder, "the defense strategy [was] to discredit the prosecuting witness by revealing her possible biases, prejudices, or ulterior motives." Id., 28 Md.App. at 220, 344 A.2d at 451. He proposed to do so by proving that, when she accused him, the victim thought she was pregnant by someone else and, therefore, accused the defendant of raping her, "because she was afraid to tell her mother she voluntarily had sexual intercourse with others." Id. That strategy then required the defendant to establish the victim's prior acts of sexual intercourse as a predicate to establishing her ulterior motive. Id.

   The issue in White was quite different.  There, the defendants admitted that the rape victim had been in their van, but denied that they engaged in sexual relations with her.  They contended that the victim had falsely accused them of rape. In support[***20] of that defense, they proffered that a witness would testify that the victim had engaged in sex for drugs with him.  They also alleged that the false accusation was prompted by the victim's desire to avoid the certain wrath of her fiance were he to learn that she had been out smoking cocaine with two men.  324 Md. at 637, 598 A.2d at 193. The Court rejected both rationales, noting that the "[p]roffered evidence of past sexual conduct must contain a direct link to the facts at issue in a particular case before it can be admitted." Id. at 638, 598 A.2d at 193. We opined:

   The Whites proffered that Luther Moore's testimony would establish Nicole's motives to make a false complaint of rape. Their first contention is that Nicole may have falsely accused them of rape because she was angry that they had not obtained more cocaine for her.  Her anger was the result of their failure to procure drugs, not their failure to trade drugs for sex. Even adopting the Whites' contention, it was not their declining of Nicole's offer of sex that motivated the false charge; it was their declining her request [*469] [***21]for drugs.  Any prior sexual acts or prior sexual solicitations by Nicole could have little, if any, relevance to her alleged anger at the Whites. In addition, the fact that Nicole may have successfully offered or traded sex for drugs in the past does not tend to show that she would become enraged with the Whites for failing to supply her with drugs and declining her alleged sexual solicitation.  Luther Moore's testimony would have dubious relevance to establishing that Nicole had an ulterior motive to lie, whereas its prejudice to Nicole and the State would be extreme.

   The Whites also allege that Nicole might have fabricated a rape story so that her fiance would not get mad because she had been out smoking cocaine with two men.  Luther Moore's proffered testimony provides no support for this contention.  Whether Nicole may have smoked cocaine in the past is irrelevant to any alleged fear of her fiance's reaction if he ever found out that she had been smoking cocaine.
 
324 Md. at 637, 598 A.2d at 192-193. The White court was also concerned that the witness's testimony would
 
paint a picture of the victim as an immoral person who[***22] sells herself for illegal drugs.  In that manner, the Whites might refocus the trial on Nicole's character, one of the results that the rape shield statute is meant to guard against . . . .
 
White, 324 Md. at 638, 598 A.2d at 193.

   In the case sub judice, the parties agree, unlike in White, that sexual contact occurred.  The petitioner avers that the victim was freaking for cocaine, of which he was a beneficiary, but became angry when neither Jackson, Galloway, nor the petitioner gave her the drugs she had been promised.  On the other hand, although she has admitted freaking for drugs in the past, and as recently as within one week prior to the alleged rape, the victim, says that she was raped. This Court has to decide, therefore, whether the victim's admission has special relevance to this critical issue.  In the event that we conclude that it does, then the Court must determine whether [*470] the trial court abused its discretion when it determined that its probative value was outweighed by its prejudicial effect.

   It is well settled in Maryland that where intent is at issue, proof of a defendant's prior conduct may be admissible[***23] to prove the defendant's intent.  See Harris, 324 Md. at 502-03, 597 A.2d at 962-63; Harrison v. State, 276 Md. 122, 155, 345 A.2d 830, 849 (1975); Bryant v. State, 207 Md. 565, 586, 115 A.2d 502, 511 (1955). See also Huddleston v. United States, 485 U.S. 681, 685, 108 S.Ct. 1496, 1499, 99 L.Ed.2d 771, 780 (1988) ("Extrinsic acts evidence may be critical to the establishment of the truth as to a disputed issue, especially when that issue involves the actor's state of mind and the only means of ascertaining that mental state is by drawing inferences from conduct."). Such evidence is admissible, even if not directly concurrent, when the subject acts "are committed within such time, or show such relation to the main charge, as to make connection obvious," Bryant, 207 Md. at 586, 115 A.2d at 511, that is to say, they are "so linked in point of time or circumstances as to show intent or motive." Harrison, 276 Md. at 155, 345 A.2d at 849.[***24]

   In Harris, the issue was whether the defendant had the specific intent to distribute controlled dangerous substances.  To prove that he did, the State offered, and the trial court admitted, as substantive evidence in its case in chief, two of the defendant's prior convictions for possession of heroin with intent to distribute, both more than two years old.  We held that the convictions were inadmissible. What was missing was, we noted, "some real connection between the prior convictions and the offense on trial other than the allegation that the offenses have sprung from the same disposition." 324 Md. at 502, 598 A.2d at 962, quoting Berger v. State, 179 Md. 410, 414, 20 A.2d 146, 148 (1941). We explained:
 
It is true, of course, that proof of the prior offenses involved here may be more relevant than would have been evidence of previous convictions for larceny or assault, but that is only because these prior offenses tend to show a particular disposition that is at issue, as opposed to showing only that [*471]the defendant is a person of bad character or has a disposition toward criminal[***25] activity in general.  This increased relevance moves the case closer to the requisite special relevance, but under the facts of this case, not close enough.  This is not a case where the defendant either possesses the drugs accidentally or for the requisite criminal purpose.  Here, the possession could have been, as the defendant contended, for his own personal use.  Thus, it was not a question of intentional versus accidental possession. The specific intent to distribute was the critical issue.  Persons who distribute drugs may, and often do, make personal use of the same type of drugs. We are unable to say that proof of possession with intent to distribute two and one-half years before offers such strong probative evidence of the defendant's intent on this occasion that it should be received.
 
Id.

   By way of contrast, in Anaweck v. State, 63 Md.App. 239, 246, 492 A.2d 658, 662 (1985), the State sought to bolster its evidence that the defendant possessed cocaine with intent to distribute by offering evidence of events that occurred prior to his arrest.  That evidence was that two days before the defendant's premises were searched, [***26] an undercover police officer witnessed one of the defendants, in the presence of the other, sell cocaine to a neighbor and that, on the day before the search, another neighbor made a controlled buy of cocaine from the defendants, both sales occurring in the defendant's home.  In Harris, we agreed with the Court of Special Appeals that such evidence "had special relevance transcending mere criminal character." 324 Md. at 504, 598 A.2d at 963. See also Ross v. State, 276 Md. 664, 671-72, 350 A.2d 680, 685 (1976). Like intent, motive is a mental state, the proof of which necessarily requires inferences to be drawn from conduct or extrinsic acts.

   As we have seen, the critical issue in this case is whether, on this occasion, the victim was freaking for cocaine or was raped. And, because these are the only possible [*472] explanations for what occurred, evidence that she has freaked for cocaine in the past and, particularly, the very recent past, has special relevance n7 to that issue; such evidence transcends mere evidence of bad character or, in the context of this case, sexual promiscuity. [***27]In turn, it is relevant to, and probative of, the victim's motive. From a finding that on this occasion she was freaking for cocaine but did not receive the bargained for cocaine, the jury could then infer that the victim had an ulterior motive for making a false accusation of rape against the petitioner. 

n7 Evidence is relevant (and/or material) when it has a tendency to prove a proposition at issue in the case.  Dorsey v. State, 276 Md. 638, 643, 350 A.2d 665, 668-669 (1976); McEwen v. State, 194 Md. 492, 500-501, 71 A.2d 464, 468 (1950); Kennedy v. Crouch, 191 Md. 580, 585, 62 A.2d 582, 585 (1948) ("It is an elementary rule that evidence, to be admissible, must be relevant to the issues and must tend either to establish or disprove them, and evidence which does not tend to describe or explain the facts and circumstances of the case is inadmissible."); Pearson v. State, 182 Md. 1, 13, 31 A.2d 624, 629 (1943); Edward W. Cleary, et al., McCormick's Handbook of the Law of Evidence §§ 184, 185, at 433-434 (2nd ed. 1972).

[***28]

   When the petitioner cross-examined the victim concerning her previously having freaked for cocaine, his purpose was not to show that she was a person of bad character -- a sexually promiscuous person, see Smallwood, 320 Md. at 304, 577 A.2d at 357-58; rather, it was to show that she had the disposition, displayed at some earlier time, to engage in such conduct and from that conduct coupled with her not having been paid, that she falsely accused him of rape. Proof of that particular disposition is relevant and material to the threshold determination whether, on the occasion in question, the victim was, as the petitioner alleged, freaking for cocaine. How relevant and material depends upon the facts and circumstances of the case, including the strength of the disposition evidence, e.g., its closeness in point of time to the incident in question.  Her disposition to freak for cocaine was established when the victim admitted having engaged in the relevant behavior over a six-month period and as recently as within a week of the alleged rape. Her testimony also identified other relevant [*473] factors: she testified that her addiction[***29] for cocaine caused her to engage in sex for cocaine at any time of the day or night and she described her eight hours of drug use just prior to the alleged rape. When the victim's admissions, especially as to the proximity of the last act of freaking to the subject incident, and her testimony as to the effect of her addiction and of her activities that night are considered with the petitioner's testimony that the victim was not "paid," the evidence before the court certainly had the tendency to prove conduct on the part of the victim occurring within such time and under such circumstances as to make connection between the prior conduct and that which is the subject of the trial obvious," Harris, 324 Md. at 503, 597 A.2d at 963, and from which the victim's motive could be inferred.  To be sure, in White, this Court stated that the relationship between the prior sexual conduct evidence and the ulterior motive must be direct.  324 Md. at 638, 598 A.2d at 193. That does not mean, however, that the connection must be the most direct, such as to exclude any other possible interpretation of the [***30] evidence, or even that it be the most reasonable one.  See Lowery, 202 Md. at 318-19, 96 A.2d at 22. See also DeLawder , 28 Md.App. at 220, 344 A.2d at 448. Indeed, in White, the issue was not whether the victim had exchanged sex for drugs, but rather, whether she had been raped at all.  Under the circumstances, there could be no direct relationship between the proffered testimony of the witness who would have testified to the victim's having previously engaged in sex for drugs with him and the ulterior motives the defendant offered in defense.  That is not the case here.

   To be admissible, the inflammatory or prejudicial nature of the evidence must be outweighed by its probative value. The responsibility for conducting this balancing is entrusted in the first instance to the trial court.  In arriving at the proper balance, not only must the evidence's special relevance and potential for prejudice be considered, but its necessity, i.e., whether other means of proof are available, and other relevant factors must be assessed as well. Harris v. [*474] State, 324 Md. at 498-99, 597 A.2d at 959.[***31] This is best accomplished
 
if there is on the part of the trial judge a constant cognizance of the need for showing that the "evidence is probative of a material issue other than character," . . . coupled with an unremitting appreciation of the significant potential for unfair prejudice that is likely to accompany the admission of [specific acts of sexual conduct,] the necessary analysis and weighing functions are likely to produce an appropriate ruling.
 
Id. at 499-500, 597 A.2d at 961, quoting Huddleston v. United States, 485 U.S. at 786, 108 S.Ct. at 1499, 99 L.Ed.2d at 780 (1988).

   Evidence is probative if it tends to prove the proposition for which it is offered.  Dorsey, 276 Md. at 643, 350 A.2d at 668-669. The stronger the connection between the evidence and the proposition -- the greater the tendency of proof -- the more probative the evidence is.  Thus, evidence that the victim freaked for cocaine one week prior to the alleged rape does not have the same probative force -- in fact, it is weaker -- than evidence that she had freaked for cocaine [***32] the day before or an hour before.  On the other hand, it is more probative than that she had done so within the six months before the alleged rape. Hence, the probative value of the evidence is relative, depending upon the facts and circumstances of the particular case.  As was the case with proof of motive, the facts and circumstances include the effect of the victim's addiction, and her activities during the eight hours prior to the alleged rape and, thus, help to determine just how probative the sexual conduct evidence actually is.  On the other hand, it can not be gainsaid that evidence of the victim's prior sexual conduct is not prejudicial to the victim and the State.

   We hold, under the facts sub judice, that the trial court abused its discretion when it determined that the prejudicial effect of the evidence outweighed its probative value. First, there is a close connection between the sexual conduct evidence [*475] and the petitioner's defense; in order to establish that he was falsely accused because the victim did not get the cocaine she was promised, it was necessary for the petitioner to establish the basis of the bargain.  Moreover, viewed in light of the victim's[***33] activities during the hours preceding the alleged rape, and her addiction and its effect on her (causing her to have sex for cocaine at any time of the day or night when she wanted to get high), the evidence that she freaked for cocaine within a week of the alleged rape is highly probative. Furthermore, there is little danger that the evidence will be misused by the jury, that its attention will be diverted from the real issue in the case.  As we have seen, rather than offer extrinsic evidence of the fact to be proved, the petitioner elicited the admission from the victim herself; at the incamera hearing the court held on the subject, the victim made the admission the petitioner sought.  Thus, this is not a case in which the jury is required to credit testimony from an extrinsic source, in the face of denial by the victim.  Finally, the evidence is necessary to the petitioner's defense.  The central focus of this case is the very issue upon which the contested evidence relates: whether the victim, in fact, engaged in sex for drugs rather than being raped. Inasmuch as the petitioner's defense was clear, uncomplicated, and not inherently unbelievable, the probative value of the evidence[***34] to prove it outweighed, substantially, its potential for unfair prejudice.

   Cases from other jurisdictions reach the same result on confrontation grounds.  See State Ex Rel. Pope v. Mohave Superior Court, 113 Ariz. 22, 545 P.2d 946, 953 (1926) (evidence of victim's reputation as prostitute and prior acts of prostitution admissible to support defense of consent to act of prostitution); People v. Varona, 143 Cal.App.3d 566, 192 Cal. Rptr. 44, 46 (1983); Commonwealth v. Joyce, 382 Mass. 222, 415 N.E.2d 181, 186-87 (1981) (despite the fact that Massachusetts' rape shield statute does not contain an ulterior motive exception, evidence of prior instances of prostitution offered to prove victim's bias or motive to lie held admissible. "Where . . . facts are relevant to a showing of bias or motive to lie, the [*476] general evidentiary rule of exclusion must give way to the constitutionally based right of effective cross-examination."); People v. Slovinski, 166 Mich.App. 158, 420 N.W.2d 145, 153-56 (1988)[***35] (prior acts of the victim's prostitution admissible on issue of consent, to vindicate defendant's due process and confrontation rights); State v. Howard, 121 N.H. 53, 426 A.2d 457 (1981) (right of confrontation may require admission of specific acts of sexual conduct of statutory rape victim when defense is denial of contact); State v. Jalo, 27 Or.App. 845, 557 P.2d 1359 (1976) (rape shield statute which did not permit evidence of victim's ulterior motive infringed upon the defendant's confrontation right); State v. Herndon, n8 145 Wis.2d 91, 426 N.W.2d 347 (1988) (same); Commonwealth v. Black, 337 Pa.Super. 548, 487 A.2d 396 (1985) (same). See also People v. McNab, 144 Misc.2d 612, 544 N.Y.S.2d 930, 931 (S.Ct.1989) (evidence of prior exchanging of sex with another man admissible only on cross-examination of the victim).

n8 A portion of the Wisconsin rape shield statute was declared unconstitutional in Herndon.  However, two years later in State v. Pulizzano, 155 Wis.2d 633, 456 N.W.2d 325, 330 (1990), the Supreme Court of Wisconsin overruled that portion of the Herndon decision.

[***36]

   These cases are not inconsistent with the result we reach in this case.  The statutes they interpret contained no ulterior motive exception and, because the evidence was deemed highly probative, the right of confrontation is required to be used to admit it.  See also DeLawder, 28 Md.App. at 226-227, 344 A.2d at 454-455. Maryland's statute contains an ulterior motive exception, hence, resort to the right of confrontation was not required.  See Anderson v. State, 328 Md. 426, 614 A.2d 963 (1992) ("[C]onstruction of a statute which would cast doubt on its constitutional validity should be avoided.").

   Our decision today does not mean that prior sexual conduct evidence will always be admissible. We leave to future determination on a case-by-case basis, whether and when evidence of this nature, offered in a different factual context, will be admitted.

   [*477] JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED.  CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO REMAND TO THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY FOR A NEW TRIAL.  COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID[***37] BY THE ANNE ARUNDEL COUNTY. 

Eugene COLVIN-EL v. STATE of Maryland 
No. 104, September Term, 1992
 
COURT OF APPEALS OF MARYLAND
 
332 Md. 144; 630 A.2d 725; 1993 Md. LEXIS 143

 September  16, 1993, Decided    September  16, 1993, Filed

   PRIOR HISTORY: [***1]

   Death Penalty Appeal. (Circuit Court for  Anne Arundel  County). Robert H. Heller, Jr., JUDGE

DISPOSITION: JUDGMENT AFFIRMED.

CORE TERMS:  door, fingerprint, murder, basement, prosecutor, detective, robbery, resentencing, print, latent, opening, juror, defense counsel, cabinet, inside, cross-examination, glass, principalship, allocution, housebreaking, mistrial, lifer, ironing board, admissible, infraction, daytime, first degree murder, opened, sentence, murdered

COUNSEL: Michael R. Malloy and Michael R. Braudes, Asst. Public Defenders; (Stephen E. Harris, Public Defender), all on brief, Baltimore, for appellant.

   Gwynn X. Kinsey, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen.), on brief, Baltimore, for appellee.

JUDGES: Murphy, C.J., and Eldridge, Rodowsky, McAuliffe, Karwacki and Robert M. Bell and Charles E. Orth, Jr. (Retired, Specially Assigned), JJ.  Robert M. Bell, Judge, in part I. of which Eldridge, J. joins.  Eldridge J. concurs in all but part II. of this dissenting opinion.

OPINIONBY: RODOWSKY

OPINION: [*148] [**727] This case is a direct appeal from a death sentence imposed by a jury at a resentencing hearing.  We shall affirm.

   The appellant, Eugene Colvin-el, was convicted in the Circuit Court for Anne Arundel County, in a prosecution removed [*149] from Baltimore County, of first degree murder, robbery with a deadly weapon, and daytime housebreaking. That jury sentenced him to death.  The trial court did not impose sentence on the additional convictions.  Nor did the court consider enhanced punishment for multiple crimes of violence, although[***2] the State had notified Colvin-el, through counsel, that it was invoking those provisions as well.  We affirmed the judgment.  Colvin v. State, 299 Md. 88, 472 A.2d 953 (Colvin-el I), cert. denied, 469 U.S. 873, 105 S.Ct. 226, 83 L.Ed.2d 155 (1984).

   In post-conviction proceedings the trial court left the guilty verdicts unaffected, but vacated the death sentence. We affirmed because of Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988), and because, under Raiford v. State, 296 Md. 289, 462 A.2d 1192 (1983), the use of "juvenile" convictions against Colvin-el violated equal protection.  State v. Colvin, 314 Md. 1, 548 A.2d 506 (1988) (Colvin-el II).  Colvin-el brought a second petition for post-conviction relief that the circuit court denied after trial.  Colvin-el's application for leave to appeal from that denial was dismissed by this Court without hearing, and the circuit court judgment was vacated [***3] for lack of jurisdiction, because the Post-Conviction Procedure Act does not apply to one simply awaiting sentence. Resentencing pursuant to the mandate in Colvin-el II was held and resulted in a jury-imposed death sentence from which this appeal is taken.

   On September 9, 1980, between approximately 1:00 and 2:30 in the afternoon Lena Buchman, aged eighty-two, was murdered in her daughter's home at 6806 Cherokee Drive in the Pikesville area of Baltimore County.  Mrs. Buchman, a resident of Florida, had flown to Baltimore that morning to visit her daughter, Mrs. Marjorie Surell, n1 and her family.  When the murder occurred both Mr. and Mrs. Surell were at work.  Mrs. Buchman was last seen alive, alone in the house, by her [*150] granddaughter, Susan Rubin, nee Surell, (Mrs. Rubin), who left shortly after 1:00 p.m., following lunch.

n1 The transcript of the trial on guilt or innocence and of the original sentencing proceeding spelled the victim's daughter's name as "Sorrell." That spelling was used in Colvin-el I and Colvin-el II.  The transcript of the resentencing uses the spelling employed here.

[***4]

   [**728] Mrs. Buchman's body was found at approximately 2:30 p.m. by a neighbor who entered the house through the front doorway.  The inner wooden door was standing open and the outer screen door was unlocked.  Mrs. Buchman's body lay in a hallway that extended from the front door to the kitchen of the split level home.  The victim had been stabbed approximately twenty-eight times with a serrated knife ordinarily kept in the Surells' kitchen.

   At the subject resentencing hearing, the legal issues were whether Colvin-el was a principal in the first degree to the murder of Mrs. Buchman, whether that murder was committed while Colvin-el was committing or attempting to commit robbery, whether there were any mitigating circumstances found by any juror, and whether the aggravating circumstances outweighed the mitigating circumstances. Md.Code (1957, 1992 Repl.Vol.), Art. 27, § 413 and Maryland Rule 4-343.  The State's proof as to the first two issues basically presented the investigation of the crimes.

   The principal clues were latent fingerprints, particularly very clear fingerprints on pieces of glass from a broken pane in the door at the rear of the basement. The police concluded that that door[***5] was the point of entry.  These pieces of glass were found stacked on the steps of the stairwell leading to the rear basement door, which was partially below ground level.  The lock in the knob of the door was unlocked, and chain locks on the door frame were found unhooked and dangling.  The inference was that the intruder had picked the pieces of glass out of the window after breaking it and before reaching through to unlock the door. The door, which opened inwardly, was closed, but an ironing board that was kept leaning against the inside of the door was found flat on the floor.  The investigating officers' report observed that the basement door "'could be opened, but only approx. 4 inches as there was a white metal storage cabinet on the inside of the door. No [*151] other signs of forced entry could be found.'" Colvin-el II, 314 Md. at 9, 548 A.2d at 510.

   Excluding "elimination" fingerprints, i.e., those of family and friends, none of the latent prints found inside or outside of the Surell house initially were positively identified.  Although Colvin-el had multiple prior convictions in Maryland, the capacity was apparently [***6] then unavailable to compare specific, unidentified latent fingerprints against a database of identified fingerprints. Over the months following the murder, the investigating police officers requested the Baltimore County Police Department latent fingerprint examiners to compare the latent prints from the Surell home against copies of the fingerprints of dozens and dozens of known persons who were suspected in any way of being connected to housebreakings in the northwest Baltimore region. This approach had no success.  The Baltimore County fingerprint examiners were also routinely comparing the latent fingerprints from the Surell home with identified fingerprints with which they might be working in ordinary course. Further, many pieces of jewelry owned by the Surells were taken from their bedroom during the breaking and entering.  That jewelry had recently been appraised, and the appraisal descriptions were circulated to businesses where one or more items of the jewelry might be presented for sale.  That approach had no success.

   In order to increase the number of identified fingerprints to which the latent fingerprints from the Surell home could be compared, in October 1980 Detective[***7] Michael R. Parks of the Baltimore County police enlisted the cooperation of a fingerprint examiner with the Baltimore City Police Department, Sharon Talmadge (Talmadge).  Talmadge agreed to compare a photograph of the latent prints from the Surell home with identified prints with which she might be working in ordinary course.  After comparing the copy against the fingerprints of approximately 625 people, Talmadge, on January 13, 1981, matched the right thumb of the latent prints with an inked print submitted to her by Baltimore City Detective Martin Colleran.  The inked print bore the identification of Colvin-el.

   [*152] [**729] Detective Colleran had arrested Colvin-el on January 8, 1981. n2 At the time of arrest Colvin-el was carrying his age of majority card, ID No. C-415-237-765-777, in the name of Eugene Sherman Colvin, 615 Brice Street, Baltimore, Maryland 21217.  The card is a form of identification issued by the Maryland Motor Vehicle Administration to persons who are not licensed operators of motor vehicles.  It contains a face-on photograph of the head of the person identified.  Detective Colleran took custody of the card and also submitted Colvin-el's fingerprints for comparison[***8] by the Baltimore City Crime Lab.

 n2 The warrant under which Colvin-el was arrested charged a breaking and entering on December 2, 1980, in the Roland Park section of Baltimore City. Colvin-el II, 314 Md. at 11, 548 A.2d at 511.

   When Talmadge matched fingerprints identified to Colvin-el with the latent prints from the Buchman murder scene, she advised Detective Parks.  Colvin-el was arrested that day on the charge of murdering Mrs. Buchman, and he was processed by the Baltimore County Police Department.  Processing included taking a full set of fingerprints that were personally rolled by Detective Parks. Identification cards for each hand were prepared and signed by Colvin-el and by Detective Parks.  In addition to a full set of fingerprints and palm prints, the cards contain a description of Colvin-el, who is five foot seven inches in height.  He weighed 135 pounds when arrested.

   Thereafter Detective Parks, looking for Colvin-el's name, examined the daily transaction sheets[***9] submitted by pawnshop operators in Baltimore City to the Baltimore City Police Department.  This review led the investigators to Northwestern Loan Company at 1701 Pennsylvania Avenue in Baltimore City.  Ledger and pawn ticket records of Northwestern Loan Company record that two watches were pawned there on September 17, 1980, by Eugene Sherman Colvin-el of 615 Brice Street, Zone 17.  In transaction 14717, the object pawned was a man's pocket watch that was still in the possession of Northwestern Loan Company when the investigators [*153] presented themselves on January 27, 1981.  That watch, confiscated by the police, was one of the items taken from the Surell home.  The person who pawned the watch was an African-American male who presented age of majority card ID No. C-415-237-765-777.  The clerk who handled the transaction, Armand Kessler, testified that in every instance of a transaction in which a picture identification was presented he compared the picture to the person presenting the identification.  In transaction 14661, handled by a different clerk, Colvin-el pawned a man's wristwatch that was confiscated by the police and identified at trial as an item taken from the Surell[***10] home.

   In the defendant's case the trial court accorded considerable liberty in allowing evidence of sightings of persons considered by the beholders to be "suspicious." This evidence ranged well beyond the 6600 block of Cherokee Drive on the afternoon of September 9, 1980.  The defense also produced evidence relating to police activity in investigating persons suspected of, or arrested for, breaking and entering, whose identified fingerprints were furnished for comparison with the latent prints from the Surell home in the course of the investigation. n3

n3 No issue is presented on this appeal involving the exclusion by the trial court of any evidence in these categories.  Nevertheless, we remind circuit judges that the classification under Maryland Rule 4-343 of first degree principalship as a sentencing issue is not an invitation for a jury in a resentencing to redetermine guilt or innocence of murder in the first degree.

   In his allocution Colvin-el included the statement, "I did not go into the Surell's house, rob, [***11] hurt or kill Ms. Buchman." The testimony, exhibits, and the balance of Colvin-el's allocution concentrated on mitigating circumstances and the weighing process.

   The resentencing jury found that the State had proven that Colvin-el was a principal in the first degree to the murder and that it was committed while perpetrating [**730] robbery. No statutory mitigating factors were found. Under the "catch-all" [*154] question on the form for nonstatutory mitigating factors the jury unanimously found that the "[e]vidence persuades that the Defendant did not premeditate this murder." One or more, but fewer than all twelve, of the jurors also found the following:
 
"1. Evidence persuades that the Defendant is not likely to be a threat to others in prison society.
 
"2. Evidence persuades that the Defendant has some qualities that could be socially constructive and beneficial within the prison society."
 
The jury unanimously found that the State had proven by a preponderance of the evidence that the aggravating circumstance outweighed the mitigating circumstances, and the jury unanimously determined the sentence to be death.

   In this opinion we shall consider the issues raised in the order[***12] in which the events involved in the issues occurred at trial, as opposed to the order of presentation of issues in Colvin-el's brief.  The exception is Colvin-el's ninth issue, alleging insufficiency of the evidence to prove first degree principalship, which we consider immediately below.

   I

   The insufficiency argument made in the appellant's brief has two aspects: (A) Colvin-el's presence at the murder was not proved; or (B) even if Colvin-el's presence was proved, his being the actual killer was not proved.

   A

   In the opening statement for the defense, counsel agreed with the State that the evidence would show that Colvin-el's fingerprints were on the glass from the window in the rear basement door and that the evidence would show that Colvin-el pawned two of the seventeen items of jewelry taken from the Surells' home. Before us Colvin-el contends that "there was no direct evidence linking Appellant to the crime scene at or around the time the offense was perpetrated." Brief of Appellant at 45.  This argument overlooks the direct evidence [*155] from Mrs. Rubin that the downstairs of the Surell home was in normal condition when she went there after lunching with Mrs. Buchman and [***13]before leaving at about 1:10 p.m. The jury properly could infer that, if the breaking and entry had occurred on an earlier occasion than the murder, Mrs. Rubin would have noticed the ironing board lying flat on the floor as opposed to its normal position, upright against the inside of the basement door, or would have noticed the broken pane in the door.

   Further, in Colvin-el I, we rejected the argument that the evidence was insufficient to show Colvin-el's criminal agency in the murder and robbery. Based on a review of the evidence, 299 Md. at 111, 472 A.2d at 964, we concluded "that the circumstances surrounding the fingerprints found on the glass broken from the basement door tend to exclude the hypothesis that the print was impressed at a time other than that of the crime." Id. In Colvin-el II, we said that the fingerprint evidence made it "fanciful to suggest" that an adequate defense counsel would have created a reasonable doubt based on Colvin-el's being either a finder of lost property or a receiver of stolen goods.  314 Md. at 14, 548 A.2d at 512.

   B

   Alternatively Colvin-el points[***14] to evidence "suggesting the participation of someone other than Appellant." Brief of Appellant at 45.  A few, non-elimination, latent fingerprints that were obtained within the house could not be matched with those of Colvin-el or any other identified person.  Of these, one fingerprint could also be excluded as definitely not that of Colvin-el.  That fingerprint was on a single piece of paper that was recovered by the police from a small notepad that was in Mrs. Buchman's large, canvas handbag which was found on the counter in the Surells' kitchen.  The police found the handbag open.  On the top of the inside of the handbag was an open wallet.  Attached as [**731] part of the outside of the wallet was an open change purse.  The only money in the wallet consisted of a few coins in the change purse.

   [*156] The piece of paper, measuring approximately three and one-half inches by six inches, has writing on one side, divisible into three categories. The top section is a shopping list reading, "Tegrin, Mylanta, Kaopectate [and] tape." The second section is a note saying in part, "give to Alberta," with the balance not decipherable but possibly reading, "promise cat paid." Mrs. Surell identified[***15] the handwriting on these two portions of the note as that of her mother, Mrs. Buchman, who had a friend in Florida named Alberta.  The third section of the note was a name, Edith Kellerman.  That handwriting was not the handwriting of Mrs. Buchman, and Mrs. Surell did not know who Edith Kellerman was.

   Colvin-el's argument to the jury was that the unidentified fingerprint indicates the presence of some other person in the kitchen where the knife was obtained with which Mrs. Buchman was murdered. That argument failed with the jury, and it also fails to render the State's evidence legally insufficient as to first degree principalship. A reasonable juror could conclude that the unidentified fingerprint was left by the person who wrote the name Edith Kellerman.  In any event, the jury was not compelled to find that, either before or after killing Mrs. Buchman, the person who opened the handbag, wallet, and change purse also went through her notebook and was sufficiently fascinated with the medicines that Mrs. Buchman took that that person impressed a clear fingerprint on the slip of paper while reading it.

    Because the jury could find that no one was in the house at the time of the murder[***16] other than the victim and Colvin-el, the jury could reasonably conclude that the murder of Mrs. Buchman by Colvin-el, as previously established, was committed by him as a principal in the first degree.

   C

   The dissent in this case takes a somewhat different tack from that of defense counsel. In addition to emphasizing the absence of physical evidence demonstrating Colvin-el's presence inside of the Surells' home, the dissent marshals the [*157] arguments made by defense counsel to the jury for rejecting the investigating officer's conclusion as to the point of entry.  From this the dissent pronounces the evidence legally insufficient to establish that Colvin-el was a principal in the first degree.  Whether the police correctly reconstructed the means of entry was relevant for the jury's general assessment of the reliability of the police investigation, but that debate does not foreclose the jury from finding that Colvin-el was the first degree principal. There is no dispute that entry was gained and that Mrs. Buchman was murdered in the course of the robbery inside of the house.  Rejecting the conclusion drawn by the police as to the point of entry does nothing to place one or [***17] more persons, other than Colvin-el, in the home.

   From the standpoint of inferring the ultimate fact of first degree principalship, this case is not substantially distinguishable from Wiggins v. State, 324 Md. 551, 597 A.2d 1359 (1991), cert. denied,    U.S.   , 112 S.Ct. 1765, 118 L.Ed.2d 427 (1992). In that case the murder victim was a seventy-seven year old woman who lived alone in an apartment house unit.  She was last seen alive late on Thursday afternoon.  Her body was found sometime after 2:00 p.m. on Saturday afternoon in the bathtub of her apartment.  She had been murdered by drowning.  The medical examiner could not opine on the maximum length of time that the victim had been dead.  The defendant had been employed as a day laborer for a contractor who was working on the apartment house.  A child, age twelve at the time of trial, the victim, and the defendant were together in the hall outside of the victim's apartment at approximately 4:30 or 5:00 p.m. on the Thursday afternoon, attempting to lock the door to the apartment where the child lived.  At approximately 5:00 or 5:30 p.m. that[***18] Thursday the same child heard the victim and the defendant converse briefly, apparently while they were in the hall.  This witness's [**732] identification of the defendant was made at a pretrial photographic array, but the witness was unable to identify the defendant at trial.

   The contractor testified that he had released the defendant from work between 4:00 and 4:45 p.m. that Thursday and that [*158] he saw the defendant outside of the apartment house approximately twenty-five to thirty-five minutes later.  The defendant explained that he had been performing a task -- one that the contractor considered could have been done in two minutes.

   The evidence also disclosed that on that Thursday evening, at about 7:45 p.m., the defendant drove the victim's automobile to the home of the defendant's girlfriend, and that they went shopping using the victim's credit cards.  Use of the car and credit cards was repeated the next day, and on Saturday the defendant pawned an item of jewelry belonging to the victim.

   In Wiggins there was no evidence directly placing the defendant in the victim's apartment. n4 We held that the trier of fact could conclude that the defendant was the principal in the[***19] first degree, despite the circumstantial nature of much of the evidence, and despite the testimony of a friend of the victim who said that she spoke to the victim by telephone on Friday morning.  Here, in the absence of any evidence clearly pointing to participation in the murder and robbery by some other person or persons, in addition to Colvin-el, the proof is sufficient to support a jury finding that Colvin-el alone murdered and robbed Mrs. Buchman.

n4 Wiggins was tried to the court, and the trial judge made specific findings of fact.  Two witnesses for the State were persons who were confined with the defendant.  Each of them testified to a separate occasion on which the defendant admitted the murder and robbery. The trial judge found that this testimony was not credible.  Thus, these admissions were excluded from the legal sufficiency calculus.

   II

   In its opening statement the State told the jury that certain evidence about Colvin-el's prior convictions would be introduced, including the fact that, when Colvin-el[***20] murdered Mrs. Buchman, he had been out on parole for about one year.  The prosecutor said that the confinement from which Colvin-el was paroled was "for committing a very similar crime where he did not injure a woman." The defense objected, invoking Scott v. State, 297 Md. 235, 465 A.2d 1126 (1983), which [*159] interpreted Art. 27, § 413(c)(1)(iii).  That statute includes among evidence admissible in a capital sentencing proceeding "[e]vidence of any prior criminal convictions, pleas of guilty or nolo contendere, or the absence of such prior convictions or pleas, to the same extent admissible in other sentencing procedures." Scott interpreted § 413(c)(1)(iii) to preclude "inflammatory detailed evidence of the underlying facts and circumstances surrounding unrelated crimes." 297 Md. at 247, 465 A.2d at 1133.

   The prosecutor's statement at issue here is not detailed.  Nor is it inflammatory.  It could hardly be inflammatory when Colvin-el, while testifying at the original sentencing proceeding, invoked the same comparison, with details, to show that he was not a violent person.  He said: [***21] 

   "In 1972 they speak of the robbery with a deadly weapon.  I didn't hurt the lady.  My intention was not to hurt her and I told her this."

   He further testified:
 
"I've never harmed anyone.  She said I throwed her on the floor and tied her up. I did not throw her on the floor.  I told her to get on the floor and she got on the floor.  I said, 'Miss, I will not harm you.  I just want to keep you from calling the police.' I did not have to explain this to her.  I am not violent!"

    There was no error.

   III

   In the State's case in chief Mrs. Rubin testified as a fact witness for the State and was cross-examined.  When the trial judge inquired if the State would examine on redirect, the prosecutor replied:

   [**733] "Nothing further, Judge.  I would just put on the record that I've spoken to Miss . . . Mrs. Rubin, and she has indicated that she doesn't feel capable of presenting . . . victim impact testimony.  That's why we haven't done it."

   [*160] Defense counsel objected to the prosecutor's testifying.  At a bench conference the prosecutor apologized for an "inappropriate" statement. The defense argued for a mistrial, but the motion was denied.  In response to the trial court's[***22] invitation, the defense requested an instruction directing the jury to disregard the statement.  After debating whether Mrs. Rubin could remain in the courtroom, the bench conference ended.  The court then directed the jurors that they were "to disregard" the prosecutor's "final comments."

   The prosecutor's statement was clearly improper, as the trial court ruled, but the court did not abuse its discretion in denying the motion for mistrial.
 
"Where the motion [for mistrial] is denied and the trial judge gives a curative instruction, we must determine whether the evidence was so prejudicial that it denied the defendant a fair trial; that is, whether the damage in the form of prejudice to the defendant transcended the curative effect of the instruction."
 
Medical Mut. Liab. Ins. Soc'y v. Evans, 330 Md. 1, 19, 622 A.2d 103, 112 (1993) (quotations omitted); see also Rainville v. State, 328 Md. 398, 408, 614 A.2d 949, 953-54 (1992); State v. Hawkins, 326 Md. 270, 277, 604 A.2d 489, 493 (1992).

   Here, the effect of Mrs. Buchman's death on Mrs. Rubin[***23] was not admissible through the prosecutor, but it was admissible through Mrs. Rubin who could have been cross-examined, assuming defense counsel considered cross-examination tactically advisable.  If the State had put a proper question to Mrs. Rubin seeking to elicit that effect, a response that she was too distressed to discuss her feelings would have been admissible. See Payne v. Tennessee,    U.S.   ,    , 111 S.Ct. 2597, 2609, 115 L.Ed.2d 720, 736 (1991). Further, in evaluating any prejudice and the efficacy of the curative instruction, the trial court could consider that the jury had already heard victim impact testimony from Mrs. Surell.  That testimony included the statement: "I can't eat honeydew melon because that was the last thing that . . . my daughter came to visit my mother, and they had honeydew melon that [*161]day.  And that was the knife probably that was used to kill her." Under these circumstances we see no abuse of discretion in denying the motion for mistrial.

   IV

   During the State's presentation in chief, Colvin-el objected to testimony from fingerprint examiner Talmadge of Baltimore City that the copy of the [***24]latent fingerprints left with her by Baltimore County Detective Parks matched the fingerprints furnished to her by Baltimore City Detective Colleran on a fingerprint card for Colvin-el.  The ground was that it would be hearsay for Talmadge to say that the latent prints were those of Colvin-el, because Talmadge had no personal knowledge whether the fingerprints on the card bearing Colvin-el's name actually were those of Colvin-el.  The State disclaimed any attempt to prove through Talmadge that the latent prints from the Surell home were those of Colvin-el, but the State asserted that the purpose of the proof was to explain how the investigation focused on Colvin-el, so that the name on the fingerprint card was admissible through Talmadge for that purpose.  The court overruled the objection and offered to give the jury a limiting instruction, if the defense so requested, but no express request was made.

   The evidence was admissible for the limited purpose indicated by the State, and the defense waived any right to a limiting instruction.

   Further, even if there were error, it was harmless beyond a reasonable doubt. The latent fingerprints found at the Surell home were identified at [***25] trial to be those of Colvin-el by James Simms (Simms), formerly a latent print examiner for the Baltimore County Police Department and currently the instructor in the use of the statewide, [**734] computerized, fingerprint identification system.  Simms compared the latent fingerprints to a set of inked fingerprints, rolled from the fingers of Colvin-el by Detective Parks, who testified in person to having done so.

   [*162] Colvin-el nevertheless contends that the error in admitting Talmadge's testimony improperly bolstered the evidence given by Simms, so that there is prejudice.  The argument cannot be a general proposition of law; otherwise erroneously admitted evidence could never be considered simply cumulative to a fact properly proven by other evidence.  See Tichnell v. State, 287 Md. 695, 716, 415 A.2d 830, 841 (1980). Nor is there prejudice under the particular circumstances here, where defense counsel acknowledged in opening statement that the evidence would show that Colvin-el's fingerprints were on the broken glass.

   V

   At the conclusion of the State's case in chief it introduced documentary evidence consisting of the presentence investigation[***26] report (PSI) and certified copies of court records evidencing Colvin-el's prior convictions for crimes of violence and other offenses.  Included among these exhibits was a copy of a portion of the docket sheet from the file in the subject prosecution reflecting the jury verdict in Colvin-el's original guilt or innocence trial for the murder of Mrs. Buchman.  The exhibit read, in relevant part: "Finding: Guilty 1st degree Murder; Guilty Felony Murder; Guilty Robbery with a deadly weapon; Guilty Daytime Breaking and Entering." The PSI, which had been updated to May 1992, included the same information.

   During the trial court's orientation instructions to the jury and again when the exhibits were offered, defense counsel took the position that the jury should not be advised of any guilty verdicts in the instant prosecution, other than for first degree murder, because the State had the obligation at a resentencing hearing to prove again that there was an aggravating factor to the murder. The objection is correct as a legal proposition.  See Hunt v. State, 321 Md. 387, 445-46, 583 A.2d 218, 246-47 (1990), cert. denied,    U.S.   , 112 S.Ct. 117, 116 L.Ed.2d 86 (1991);[***27] Colvin-el II, 314 Md. at 18-19, 548 A.2d at 513-14; cf. Tichnell v. State, 290 Md. 43, 63, 427 A.2d 991, 1001 (1981). In practical operation under the circumstances [*163] here, however, the error is harmless beyond a reasonable doubt.

   In Part I hereof we explained why there was legally sufficient evidence to find that Colvin-el was the principal in the first degree to the murder of Mrs. Buchman, and how the defense argument to the jury sought to put a second person in the house through the unidentified fingerprint on the slip of paper from the notepad that was in the handbag of Mrs. Buchman.  Even if the jury had accepted Colvin-el's argument that he was not the actual killer, it would not have had any effect on the overwhelming evidence that Colvin-el was, at least, an aider and abettor in the robbery.

   Under all of the evidence the murder and robbery were part of one criminal episode that occurred between 1:10 p.m. and 2:30 p.m. on September 9, 1980.  At the resentencing Colvin-el stood guilty of first degree murder, a fact of which the jury was necessarily advised.  Thus the resentencing[***28] jury knew that a prior jury had already found that Colvin-el was at the scene of the murder and robbery at the time of the murder and robbery. The only disputed factual issue that the resentencing jury had to decide, bearing on the offenses within the criminal episode, was whether Colvin-el acted alone or whether he aided and abetted another in the murder. The trial court instructed the jury to consider first the issue of first degree principalship in the murder, and the jury found that Colvin-el was the first degree principal.  But, even if the jury had found that someone else had actually killed Mrs. Buchman, that would not have disturbed the verdict that Colvin-el was guilty of murder, at least as an aider and abettor, and therefore guilty, at least as an aider and abettor, in the contemporaneous robbery.

   [**735] Clearly there was no factual dispute about the robbery. In summing up and after arguing that Colvin-el was not a principal in the first degree to murder, defense counsel acknowledged to the jury that the aggravating factor of robbery was proven.  Defense counsel said:
 
[*164] "At some point on September the 9th and either with or without a weapon, there was some property[***29] taken from Ms. Buchman by force or threat of force.  And that does constitute robbery. I believe the State has fairly generated the evidence and proved to you beyond a reasonable doubt that a robbery did, in fact, occur.  And I believe that you should mark the aggravating factor [of robbery] as 'proven.'"

   VI

   When the PSI was introduced as State's Exhibit 46, Colvin-el objected to the portion of the section headed "MENTAL HEALTH" referring to a 1975 report by Dr. Neulander describing Colvin-el as "prone to lying." The entire paragraph containing the challenged portion of the report is set forth below as it appears in State's Exhibit 46 (ellipsis in original).

   "MENTAL HEALTH:

    "During his last incarceration, Colvin received psychological evaluation on at least two occasions.  A report dated June 11, 1975 by Dr. Neulander describe[s] Colvin as being a 'very guarded and evasive person who is fearful of revealing his true characteristics and is prone to lying . . . in order to present the best impression of himself.' The defendant was also examined by Robert D. Matthews, Psychologist, in July, 1978.  Dr. Matthews found the defendant to be a very passive aggressive person at times. [***30] He also notes that Colvin 'can develop some paranoid posture' when pressured and can be unpredictable at times.  Dr. Matthews concludes that the defendant was in need of proper controls and needed to be closely monitored.  If this was not done, Dr. Matthews relates that the defendant's behavior may easily regress."

   Lack of relevance was specified as the ground for the objection, in the sense that the proffered evidence did not bear on any issue in the hearing.  In this respect Colvin-el cites Bohnert v. State, 312 Md. 266, 539 A.2d 657 (1988), for the proposition that, even if Dr. Neulander had been called as a witness, he could not opine upon the truthfulness of an account [*165] by another witness.  Colvin-el also submits to this Court that the reference to Dr. Neulander's report is too remote to be relevant at the resentencing in May 1992. n5

n5 Colvin-el further suggests to this Court that the prosecutor "deleted a key phrase in order to render the passage [from Dr. Neulander's original report] more prejudicial to Appellant." Brief of Appellant at 37.  This squabble involves the ellipsis in the paragraph from State Exhibit 46, quoted in the text above.

   State Exhibit 46 consists of an initial presentence investigation and its updates.  The original PSI was completed February 20, 1981, for the District Court of Maryland in Baltimore City in a prosecution in which Colvin-el was charged with unauthorized use of an automobile.  It is that portion of the PSI exhibit which includes the section on "MENTAL HEALTH." The basic report was updated April 3, 1981, for the Criminal Court of Baltimore for sentencing on the daytime housebreaking charge that had led to Colvin-el's arrest by Detective Colleran on January 8, 1981.  The second update was completed May 19, 1992, for the subject resentencing.

   In the defendant's case Colvin-el called an expert on adjustment to prison life, Dr. Robert Johnson.  In cross-examining Dr. Johnson the prosecutor, without reading that section aloud, referred the witness to the excerpt from Dr. Neulander's report in the PSI.  Following an objection, a bench conference ensued at which the trial judge apparently found "the psychological evaluation inside the file dated 6/11/75." The trial judge then read part of that evaluation into the record, but out of the hearing of the jury.  The sentence in controversy, in part, reads that Colvin-el "'is prone to lying or at least giving himself the benefit of the doubt in order to present the best impression of himself.'"

   After noting that the Neulander excerpt continued to be part of the PSI in evidence, the trial court would not require Dr. Johnson to read that segment of the report aloud to the jury as the State had requested.  Defense counsel did not seek to have State's Exhibit 46 modified to insert the words omitted and indicated by the ellipsis in the PSI as introduced.

   Thus, when the prosecutor read from the PSI in the State's summation, the prosecutor did not delete a key phrase from the exhibit in evidence.

[***31]

   [**736] A PSI, excluding any recommendation as to sentence, is presumptively admissible under Art. 27, § 413(c)(1)(iv).  Hunt v. State, 321 Md. at 431-32, 583 A.2d at 239, explained the presumption:
 
"[R]eliable information contained in a presentence investigation report, which is of probative value and relevant to sentencing, ordinarily is admissible provided the defendant is accorded a fair opportunity to rebut any statements."

   [*166] Although this Court has not addressed directly the admissibility of the mental health portion of a PSI, we have frequently upheld the admission of PSI information over an objection that the information was not relevant. See, e.g., id. at 430-32, 583 A.2d at 239 (holding admissible reports of prison infractions in the PSI); Collins v. State, 318 Md. 269, 294-95, 568 A.2d 1, 13-14 (holding admissible juvenile record and prison infraction report in PSI), cert. denied, 497 U.S. 1032, 110 S.Ct. 3296, 111 L.Ed.2d 805 (1990); Grandison v. State, 305 Md. 685, 757-58, 506 A.2d 580, 616-17[***32] (holding admissible explanatory statements in PSI about the defendant's federal convictions), cert. denied, 479 U.S. 873, 107 S.Ct. 38, 93 L.Ed.2d 174 (1986); Huffington v. State, 304 Md. 559, 577-78, 500 A.2d 272, 281 (1985) (holding admissible reports of prison infractions in the PSI), cert. denied, 478 U.S. 1023, 106 S.Ct. 3315, 92 L.Ed.2d 745 (1986). The mental health report on Colvin-el, including the statement by Dr. Neulander, was similarly relevant and probative with regard to the sentencing decision.  Quoting Bartholomey v. State, 267 Md. 175, 193-94, 297 A.2d 696, 706 (1972), Huffington discussed the admissibility of information in a PSI, stating:
 
"'[T]o aid the sentencing [body] in fairly and intelligently exercising the discretion vested in [it], the procedural policy of the State encourages [the] consider[ation of] information concerning the convicted person's reputation, past offenses, health, habits, mental and moral propensities, social background [***33]and any other matters that a [sentencing body] ought to have before [it] in determining the sentence that should be imposed.'"
 
304 Md. at 577, 500 A.2d at 281 (emphasis added).  Given the importance that the convicted person's mental and physical health and mental and moral propensities play in the sentencing determination, the mental health report contained in the PSI was germane.

   Nor was the contested portion of the "MENTAL HEALTH" section of the PSI too remote.  Dr. Robert Johnson, an expert called by the defense, opined that Colvin-el "is highly unlikely to pose a danger to others in the prison [*167]community." In addition to interviews with Colvin-el, that opinion was based upon Dr. Johnson's review of Colvin-el's file "in some detail," and upon an analysis of "his interviews and what others said about him and what his file revealed to the general body of knowledge that exists on lifers." Dr. Neulander's report was one of the records that Dr. Johnson considered, but he said that it did not alter his opinion.  Dr. Johnson explained the extent of the significance that he attributed to the Neulander report.
 
"[T]hat sort of assertion[***34] is fairly common in institutional files and it has to do with the lack of trust that exists between inmates and the larger institution, particularly in a testing situation.  I think it simply cautions you that you have to establish some trust and you also have to verify when possible.  And I view that as just a caveat of any good interviewer.  Any good interviewer goes into the situation knowing that you have to first of all establish a situation of trust, and then secondly you've gotta let people speak openly, then you have to follow up and verify when you can."

   Thus, Dr. Johnson gave the excerpt from Dr. Neulander contemporaneous relevance to the issues in this case, and Dr. Johnson also explained why the excerpt was included in the "MENTAL HEALTH" segment of the PSI in the first instance.

   VII

   Three issues presented by Colvin-el involve evidentiary rulings during the testimony of Dr. Johnson, the defense's expert on prisoner behavior.  Dr. Johnson holds a [**737] Ph.D. in criminal justice.  He studies the behavior of incarcerated individuals, particularly "lifers." On direct examination, Dr. Johnson testified that, over time, lifers adjust to prison life.  They consider their cells their[***35] homes and their cellblocks their neighborhoods. Lifers get involved in work and education.  Specifically, Dr. Johnson testified that Colvin-el conformed to that pattern.  The witness noted the absence of violent infractions during the past eleven years and explained, as situational, [*168] recent infractions involving drugs, including hard drugs.  It was the stress of the then forthcoming resentencing hearing, Dr. Johnson said, that caused Colvin-el to seek an escape through drugs.

   A

   Dr. Johnson concluded his testimony on direct by opining that Colvin-el "is highly unlikely to pose a danger to others in the prison community.  He has not in the past and I see no reason why he will in the future."

   On cross-examination the prosecutor established that Dr. Johnson had reviewed Colvin-el's entire base file.  The colloquy set out below followed.
 
"[Prosecutor] You indicated that the defendant had no infractions for violence. Correct?
 
"[Dr. Johnson] Correct.
 
"Q That, I take it, doesn't mean the same thing as having an infraction for possession of a weapon?
 
"A No --
 
"[Defense Counsel] Objection, your Honor."

    A bench conference ensued.  Defense counsel said that twenty years[***36] earlier, while Colvin-el was incarcerated on another offense, prison officials had found a penknife in his cell.  The ground specified for the objection was that the inquiry was beyond the scope of the direct.  The prosecution countered that Dr. Johnson had used the base file, in which the knife infraction was listed, when rendering his opinion.  The court overruled the objection and the following ensued:
 
"[Prosecutor] . . .  So an inmate merely in possession of a weapon would not by you necessarily be considered violen[t].  Is that correct?
 
"[Dr. Johnson] Would not necessarily be considered violen[t], but I should stress that . . . during his eleven years in this penitentiary he had no such incident.  That's an incident from a prior confinement.
 
"Q Oh, you were aware of that?
 
[*169] "A I was aware of that."

   Dr. Johnson said that the incident, as reported in the file, "was rather ambiguously described and it was unclear what the weapon was.  It appears to have been something on the order of a penknife which Mr. Colvin-el claimed he used to clip his nails." Dr. Johnson explained that he gave the infraction little weight in evaluating Colvin-el's adjustment as a "lifer," [***37] because Colvin-el had no similar infractions during his current confinement.

   Appellate review of an evidentiary ruling, when a specific objection was made, is limited to the ground assigned.  Calhoun v. State, 297 Md. 563, 601, 468 A.2d 45, 62 (1983), cert. denied, 466 U.S. 993, 104 S.Ct. 2374, 80 L.Ed.2d 846 (1984). The rule invoked by the objection is that "cross-examination ordinarily may only be used to explore the subject matter covered by the witness in his direct examination and for impeachment purposes." Thomas v. State, 301 Md. 294, 308, 483 A.2d 6, 13 (1984), cert. denied, 470 U.S. 1088, 105 S.Ct. 1856, 85 L.Ed.2d 153 (1985). Here the State was entitled to explore the basis for Dr. Johnson's opinion, and the State was entitled to suggest through its examination that Dr. Johnson was selective in what the witness considered to be important in the base file.  "Wide latitude must be given a cross-examiner in exploring a witness' bias or motivation in testifying." [***38] Bruce v. State, 318 Md. 706, 727, 569 A.2d 1254, 1265 (1990). What Dr. Johnson considered to be relevant in forming his opinion does not define the scope of legal relevance.  In evaluating Dr. Johnson's opinion the jury was entitled to consider the persuasiveness [**738] of his reasons for giving little or no weight to the knife incident, as well as to the drug incidents.

   In this Court the emphasis in Colvin-el's argument in support of the objection is on remoteness.  The evidence was not remote, for the reasons given above and given in Part VI hereof concerning the admission of the mental health history in the PSI.

   [*170] B

   During the cross-examination of Dr. Johnson, Colvinel unsuccessfully made and renewed a motion for mistrial. The circumstances are set out below.

    On direct examination Dr. Johnson had recognized that "[s]ometimes people say to themselves, if you give a man life in prison he has nothing to lose." Dr. Johnson's studies, and his description of the studies by others, concerning "lifers" contradicted that impression held by some people.  On cross-examination the State elicited that Dr. Johnson had been a researcher in a major[***39] study spanning four years and involving hundreds of inmates, of whom "lifers" were one subsample.  When asked how "lifers" were defined for that study, Dr. Johnson said they were "people serving twenty or more years as a reasonable expectation [and l]ong-termers were those serving ten or more years as a reasonable expectation." The cross-examination continued as follows:

   "Q Okay.  So someone serving twenty years know[s] they're gonna get out sooner or later, right, unless they get killed in jail?

   "A Uh-huh.

   "Q All right.  Someone serving life knows they're gonna get out probably?

   "[DEFENSE COUNSEL]: Objection."

   At the ensuing bench conference Colvin-el moved for a mistrial, contending that the State was conveying the impression that Colvin-el would be released. It appears that, at that stage of the resentencing, the trial court had not yet advised counsel how it would instruct the jury with respect to Colvin-el's eligibility, based on qualifying convictions already in evidence, for life imprisonment without parole pursuant to Art. 27, § 643B(b).  The State maintained that, having just learned that "lifers" meant twenty years or more, it was entitled to find out what Dr. Johnson's[***40] "parameters" were. The court sustained the objection, deferred advising what the jury instruction would be, and reserved ruling on the motion for mistrial.

   [*171] In renewed cross-examination the State developed that "lifer" is a term that varies to some extent by state, but "a fair cutting point that is used in the general field is twenty years." When asked whether one sentenced to twenty years would behave as the typical "lifer" previously described by Dr. Johnson, the witness said:

   "It depends in part on the sentencing structure.  If you think you'll be paroled in six years then you may not react that way."
 
A few questions later the prosecutor began a question, "So when you talk about twenty years or more . . . that inmate knows without a doubt . . . ." The defense again objected and moved for mistrial. In colloquy at the bench the trial court commented to defense counsel, "I think you've created -- at least in my mind you've created part of the box that you're fighting against now." The trial court again deferred ruling on the instruction to the jury and reserved on the motion for mistrial. Later, when denying a motion for new trial, the court also denied the motion[***41] for mistrial.

   In this Court Colvin-el recognizes that the way in which "lifer" was defined for purposes of studies reinforcing Dr. Johnson's opinion was a proper subject of cross-examination. Colvin-el emphasizes, however, the question, "Someone serving life knows they're gonna get out probably?".  In context, the question simply borrowed the definition of "lifer" furnished by Dr. Johnson.
 
   Colvin-el contends that the prejudice lies in the possibility that the jury interpreted the comment to apply to the life sentence that the jury had the option to impose at the resentencing hearing.  There can be no prejudice because the trial court, at the [**739] close of the evidence, instructed the jury that the trial court would impose life without parole if the jury returned a verdict of life imprisonment. n6

n6 The relevant part of the instruction is set forth below:
 
"If your determination is that Mr. Colvin-el is to be sentenced to life imprisonment, he shall spend the balance of his natural life in a penal institution.

   "However, if you impose a life sentence in this case, I shall tell you that there is evidence that has been presented, which would permit me to require that the life sentence would be served without the possibility of parole.  Life imprisonment without the possibility of parole means that the imprisonment would be for the natural life of Mr. Colvin-el, and that he would not be eligible for parole consideration, and that he cannot be granted parole at any time during his natural life.

   "I instruct you that if you return a sentence of life imprisonment, that I intend to impose that life sentence without the possibility of parole."

[***42]

   [*172] C

   On redirect examination of Dr. Johnson one of the four questions put to him by defense counsel was the following:

   "Q When this period of crisis is over, can you predict how many infractions [Colvin-el] will have following the period of crisis?"
 
The State lodged a general objection which the court sustained.  Defense counsel made no proffer of proof.  The question is bad in form.  Obviously, no one can predict "how many" infractions Colvin-el would have.  There was no error in sustaining the objection.

   At oral argument in this Court counsel for Colvin-el admitted that "it would be absurd to suggest that [Dr. Johnson] was going to say 7.2 or 15 or 5.  What he was going to say . . . most likely was, 'Not many.'" The argument confirms that the question was bad in form.  Even if we were to accept the appellate proffer, the error, if any, would be harmless.  The appellate proffer reiterates the substance of Dr. Johnson's previous testimony.

   VIII

   Colvin-el also argues two exceptions taken to the jury instructions, one relating to allocution and the other to the length of jury deliberations.

   A

   Set forth below is the instruction on Colvin-el's right of allocution.

   [*173] [***43] "In a sentencing proceeding such as this, Mr. Colvin-el will have a right, which we call a right of allocution, which means that he will have an opportunity to address you . . . .

   "In making your decision on whether the appropriate sentence is life imprisonment or death, you must consider the testimony from the various witnesses who have appeared and testified from the witness stand, the physical evidence and exhibits which have been admitted into evidence and which will be available to you during your deliberations, the stipulations which the attorneys have entered into and which are evidence for your consideration, as well as Mr. Colvin-el's statements and allocution to you in mitigation of punishment.

   "The truthfulness and accuracy of the matters which Mr. Colvin-el may relate to you and the weight you give to his statements are for your determination and your decision.  But you may not disregard his statements in allocution merely because they are not under oath and he will not be subject to the penalties of perjury or cross-examination by the State's prosecutor as have been other witnesses."
 
(Emphasis added).  Relying on Harris v. State, 312 Md. 225, 539 A.2d 637 (1988), [***44] Colvin-el argues that the italicized language rendered his allocution a "second-class form of proof." Brief of Appellant at 34.

   In Harris we reaffirmed that it is permissible for a prosecutor to contrast testimony with allocution and to urge rejection of the allocution in part based on the absence of an oath and of cross-examination. 312 Md. at 254, 539 A.2d at 651; see also [**740] Booth v. State, 306 Md. 172, 199, 507 A.2d 1098, 1112 (1986), vacated on other grounds, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987). The error in Harris, which is not present here, was that the court had told the jury "to decide the case only on . . . evidence," but then had instructed that the defendant's "statement in allocution is not evidence or testimony." 312 Md. at 254, 539 A.2d at 651.

   We said in Harris:
 
[*174] "Booth makes it plain that the credibility of what is said at allocution may be questioned, but Booth makes it equally plain that statements made at allocution may not be[***45] disregarded merely because they are not under oath."
 
Id. at 254-55, 539 A.2d at 651.

   The instruction given in this case was proper.  See Hunt v. State, 321 Md. at 439-41, 583 A.2d at 241-42.

   B

   Colvin-el proposed, and the trial court refused to give, the following instruction:
 
"If for any reason you are unable within a reasonable degree of time to reach a unanimous judgment as to the balancing required by Section IV of the form, I will sentence Eugene Colvin-el to life without parole."

   In Bruce v. State, 328 Md. 594, 621-22, 616 A.2d 392, 406 (1992), we again rejected the notion that this instruction must be given.  See also Oken v. State , 327 Md. 628, 642-43, 612 A.2d 258, 265 (1992), cert. denied,    U.S.   , 113 S.Ct. 1312, 122 L.Ed.2d 700 (1993); Booth v. State, 327 Md. 142, 153-54, 608 A.2d 162, 167, cert. denied,    U.S.   , 113 S.Ct. 500, 121 L.Ed.2d 437 (1992); [***46]Grandison v. State, 305 Md. at 771, 506 A.2d at 623; Calhoun v. State , 297 Md. at 593-95, 468 A.2d at 58-60. We again reject it.

   IX

   The State's closing argument to the jury has generated two issues.

   A

   The first of the disputed statements is the following:

   "[Prosecutor]: I think that most people would stand up here and say, you know, the Surells and the Buchmans have a right to demand revenge.  And if we were living a hundred years ago and they demanded it, they would probably get it, ladies and gentlemen, but our system of justice [*175] doesn't work that way.  They can't have it.  But you know what, ladies and gentlemen, they don't want it.  They don't want revenge, and they have never wanted revenge.

   "All they're asking --

   "[Defense Counsel]: Your Honor, that's not in evidence.  It's not arguable.

   "Court: Move on to the next area."
 
After the argument, Colvin-el unsuccessfully moved for a mistrial, based on the foregoing.

   Colvin-el argues that this statement was calculated to inflame the jury by invoking a revenge motive for a death sentence and that the comment contains matter not[***47] in evidence -- none of the victim's family testified to a lack of desire for retribution.

   Colvin-el refers to Hunt v. State, 321 Md. at 435, 583 A.2d at 241, for the proposition that the prosecutor should not "make remarks calculated to inflame the jury and prejudice the defendant." Brief of Appellant at 30.  In Hunt the prosecutor, referring to the defendant's allocution, had stated "'it is worthless, it is trash, it is an attempt to manipulate you . . ., it is insulting, it is demeaning, . . . written by God knows who . . . .'" 321 Md. at 434, 583 A.2d at 241. We held in Hunt that the argument there came close to, but did not cross, the line between the wide latitude allowed in presenting closing argument and the impermissible.  Id. at 435-36, 583 A.2d at 241-42. From the standpoint of the words used to communicate the idea presented in this case, the argument here is not presented in an inflammatory manner.
 
   Further, if any juror at the resentencing accepted as fact the matter not in evidence, [**741] it could hardly be prejudicial to Colvin-el. [***48] Under that assumption the credulous juror would believe that no one in Mrs. Buchman's family wanted her death avenged.

   Colvin-el's basic argument is that improper prejudice lies in injecting indirectly into the argument an appeal to the jurors to give the victim's family revenge.  But a prosecutor is not [*176] prohibited from doing indirectly that which might be done directly.  One of the social policies underlying the enactment and continuation of the death penalty is vengeance or retribution. Whether a particular jury should be reminded of that policy is a tactical decision for the State.  If the policy is injected into the State's argument, the State runs the risk that the argument, if improperly handled, will result in a mistrial for prosecutorial misconduct, or in the vacating of a sentence. Here, the prosecutor gave the jury a somewhat subtle and certainly low key reminder of one of the reasons why they faced the duty of applying a death penalty law. Simply to mention the policy is not inflammatory in the mistrial-inducing sense of the term.

   In Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), [***49]the opinion announcing judgment explained that retribution and deterrence underlie the death penalty, saying:

   "In part, capital punishment is an expression of society's moral outrage at particularly offensive conduct.  This function may be unappealing to many, but it is essential in an ordered society that asks its citizens to rely on legal processes rather than self-help to vindicate their wrongs.
 
"'The instinct for retribution is part of the nature of man, and channeling that instinct in the administration of criminal justice serves an important purpose in promoting the stability of a society governed by law.  When people begin to believe that organized society is unwilling or unable to impose upon criminal offenders the punishment they "deserve," then there are sown the seeds of anarchy -- of self-help, vigilante justice, and lynch law.' Furman v. Georgia, 408 U.S. [238,] 308, 92 S.Ct. [2726], 2761[, 33 L.Ed.2d 346, 389 (1972)] (Stewart, J., concurring).
 
"'Retribution is no longer the dominant objective of the criminal law,' Williams v. New York, 337 U.S. 241, 248, 69 S.Ct. 1079, 1084, 93 L.Ed. 1337[***50] [, 1343] (1949), but neither is it a forbidden objective nor one inconsistent with our respect for the dignity of men.  Furman v. Georgia, 408 U.S. at 394-395, 92 S.Ct. at 2806-2807[, 33 L.Ed.2d at 438-39] [*177] (Burger, C.J., dissenting); id. at 452-454, 92 S.Ct. at 2835-2836[, 33 L.Ed.2d at 472-74] (Powell, J., dissenting); Powell v. Texas, 392 U.S. [514,] 531, 535-536, 88 S.Ct. [2145,] 2153, 2155-2156[, 20 L.Ed.2d 1254, 1266-67, 1269-70 (1968)] (plurality opinion)."
 
Id. at 183-84, 96 S.Ct. at 2930, 49 L.Ed.2d at 880 (footnote omitted).

   In Trimble v. State, 300 Md. 387, 425, 478 A.2d 1143, 1162-63 (1984), cert. denied, 469 U.S. 1230, 105 S.Ct. 1231, 84 L.Ed.2d 368 (1985), this Court quoted approvingly the passage from Gregg set forth above, thereby recognizing that retribution and deterrence underlie the Maryland death penalty statute. Trimble considered a challenge on cruel and unusual punishment grounds to imposition of the death[***51] penalty for a rape-murder committed by a person four months shy of his eighteenth birthday.  Rejecting the challenge under the facts in that case, Judge Cole, speaking for the Court, concluded the operative principle to be that "[i]n extreme cases, the benign goals of the juvenile system are subordinated to the more broad-based and immediate interest in retribution." Id. at 427, 478 A.2d at 1163.

   Retribution is not a per se unmentionable in a death penalty case.  The manner in which the subject was handled in the case before us was not impermissible.

   B

   In the rebuttal portion of the State's closing argument, the prosecutor commented on the testimony of Detective Sturgeon, one of the investigators at the [**742] murder scene, who placed the point of entry at the rear basement door.

   "[Prosecutor]: Number one, do you think that Detective Sturgeon, a seasoned investigator, . . . would have said the door only opened four inches?  To this day, he's sorry he ever used that term.  I guarantee you.

   "[Defense Counsel]: Objection, Your Honor.

   "[Prosecutor]: Because he said to you --

   [*178] "[Defense Counsel]: That's not in evidence.

   "Court: This[***52] is argument.

   "[Prosecutor]: Because he said to you he didn't measure it."

   Colvin-el argues that a key issue was whether he was the first degree principal, and that it was important how far the door could open.  Construing the comment as the prosecutor's personal guarantee that Sturgeon "had not meant to say in his original report that the door opened only about four inches," Brief of Appellant at 33, Colvin-el concludes that the comment was prejudicial.

   Colvin-el misconstrues the remark which, against the background of this case, simply infers Sturgeon's great annoyance with himself for having failed to measure the opening.

   In the original written report of investigation, Sturgeon said that the basement door could open "approx." four inches.  No point was made of this at the original trial or in the Colvin-el I appeal.  On the appeal from post-conviction proceedings we noted that one of the arguments advanced to support the alleged ineffectiveness of Colvin-el's original defense counsel was that "Det[ective] Sturgeon was not cross-examined concerning the apparent impossibility that the basement door was the point of entry." Colvin-el II, 314 Md. at 13, 548 A.2d at 512.[***53] n7

n7 Colvin-el II divorced the point of entry argument from the issue of guilt for first degree murder. We said:

   "The information developed at the post conviction hearing does not generate any reasonable probability that Colvin-[e]l was not at least an accomplice in the murder. If the basement door was only a point of attempted entry, and not a point of actual entry as Det[ective] Sturgeon testified, the discrepancy does not undermine the fact that someone entered the house, murdered Mrs. Buchman and stole jewelry and other property.  There is no reasonable probability that [defense counsel] could have done anything to alter the fundamental fact that Colvin-[e]l was present and at least aiding and abetting the daytime housebreaking and robbery."
 
314 Md. at 15-16, 548 A.2d at 513.

   The argument made in Colvin-el II that was relevant to the first degree principalship issue pointed to evidence "of the use of [a neighbor's] bike and of the presence of unknown black males in the 6800 block of Cherokee Drive . . . when the murder occurred." Id. at 13, 548 A.2d at 512.

[***54]

   [*179] When the subject resentencing was conducted, and Detective Sturgeon testified, he had retired from employment with the Baltimore County Police Department.  His direct testimony at the resentencing conformed to his original report.  Not unexpectedly, the cross-examination was vigorous. Sturgeon pointed out that the distance was "approximately" four inches, that he had not measured it, and that "[i]t could have been a little more." Although Sturgeon said that he could not fit through the opening, he said that some people could have squeezed in, despite the small opening.

   The resentencing jury also knew that, when arrested on January 13, 1981, Colvin-el weighed 135 pounds on a five foot seven inch frame.

   Defense counsel's closing argument at the resentencing presented to the jury the following suggested explanation of the facts:

   "[W]hat difference does the point of entry make?  It makes -- I mean, somebody got into the house and killed Ms. Buchman.  It makes a difference because if Mr. Colvin-el did not go in through the basement door, there is absolutely no evidence whatsoever to suggest that he ever went in the house. Circumstantial or otherwise then.  That's why it makes[***55] a difference.

   [**743] "And if that's so, the State's theory of this case goes up in a four inch wide puff of smoke.  Then how did the people get in if all the doors, including the front, were locked, as the witnesses have said?  The only possible explanation is that Ms. Buchman let them in.  And I say them, because it appears to me that the facts suggest that one person could not have done this."

   After three trials (with jurisdiction) and two appeals, the best that the defense could do on the first degree principalship issue with the approximately four inch opening was to argue [*180] contrary to the twice-affirmed murder verdict, or to suggest that Mrs. Buchman let "them" in. n8 Thus, when the prosecutor told the jury in rebuttal that he "guaranteed" that "[t]o this day [Detective Sturgeon is] sorry the he ever used the term [i.e., four inches]," the prosecutor was emphasizing how Sturgeon must be chastising himself over the prolonged expense and aggravation caused by his failure precisely to measure the opening. The trial court's ruling that this was permissible argument was proper.

n8 In Part I hereof we held that the evidence was legally sufficient to permit a finding that Colvin-el acted alone.

[***56]

   X

   Batching under the label, "prosecutorial overreaching," the arguments considered in Parts II, III, VII-B, IX-A, and IX-B of this opinion, Colvin-el submits that the cumulative effect of the prosecutor's alleged misconduct produces a reversal.  But we have not agreed with Colvin-el's assertions that there was improper conduct on the part of the prosecutor, other than in Part III, dealing with Mrs. Rubin's emotional inability to give victim impact testimony.  There we also held that a mistrial was not required.  Under these circumstances, there is no merit in Colvin-el's contention that the whole exceeds the sum of its parts.

   XI

   Following argument, the jury began its deliberations at approximately 3:45 p.m. The court furnished the jury with a verdict sheet, per Maryland Rule 4-343. The portions of the verdict sheet relevant to the issues in this appeal read as follows:

   "Section IV

   "Each individual juror shall weigh the aggravating circumstances found unanimously to exist against any mitigating circumstances found unanimously to exist, as well as against any mitigating circumstance found by that individual juror to exist.

   [*181] "We unanimously find that the State has proven[***57] by A PREPONDERANCE OF THE EVIDENCE that the aggravating circumstances marked 'proven' in Section II outweigh the mitigating circumstances in Section III.

   --- ---

   yes no

   "Section V

    "Enter the determination of sentence either 'Life Imprisonment' or 'Death' according to the following instructions:

   . . . .

   "4. If Section IV was completed and marked 'no', enter 'Life Imprisonment'.

   "5. If Section IV was completed and marked 'yes', enter 'Death'.

   "We unanimously determine the sentence to be ___."

   The jury deliberated until approximately 9:07 p.m. on the first calendar day of deliberations.  The next morning, the jury resumed deliberating at approximately 9:00 a.m. At 3:00 p.m. the jurors sent the following note:

   "To the Judge[:]

   "IF in Section IV pg 8 we are not unanimous[,] does this default to 'NO'[?]

   "IF it does default to 'NO[,]' how can we answer the question on page 9 (after # 5) 'Unanimously[?]'"
 
In colloquy with counsel the court indicated that it would advise the jury to answer [**744] "no" to Section IV if the jury could not unanimously agree that the aggravating factor outweighed the mitigating circumstances, and that the jury should then proceed to Section V where they would[***58] insert "Life Imprisonment."

   During that colloquy defense counsel moved that the jury be dismissed and that the court enter a sentence of life imprisonment.  The court ruled that it would not "dismiss the jury at this point," noting that it had deliberated approximately eleven and one-half hours.

   [*182] Colvin-el's argument rests on Art. 27, § 413(k)(2) which provides that "[i]f the jury, within a reasonable time, is not able to agree as to whether a sentence of death shall be imposed, the court may not impose a sentence of death."

   In Booth v. State, 327 Md. 142, 154, 608 A.2d 162, 167, cert. denied,    U.S.    , 113 S.Ct. 500, 121 L.Ed.2d 437 (1992), we held that it was "the court's function to determine whether the jury's total deliberations have extended beyond a reasonable time." In the case before us voir dire and the argument of jury challenges had required four days.  Opening statements, testimony, final argument, and instructions consumed five days.  There were twelve witnesses for the State, and seventeen witnesses for the defendant.  That degree of investment of time, effort, and[***59] resources by all concerned certainly weighed heavily, and properly so, in the trial court's decision.

   Further, in Booth, there was also a note sent from the jury after that jury had deliberated approximately the same length of time as had the jury in the instant matter before the above-described note was sent.  In Booth, the note advised, "'We are unable to come to an agreement'" on whether Booth was a first degree principal.  Booth, 327 Md. at 151, 608 A.2d at 166. Unlike the note in Booth, there was no categorical statement of inability to agree in the instant matter.  In addition, in Booth, unlike the instant matter, the trial court then gave a modified Allen instruction.  We found there was no abuse of discretion in Booth, where the jury came in with a death verdict in the middle of the afternoon of the third calendar day of deliberations.  In the instant matter the jury returned its verdict some time later on the second calendar day of deliberations.

   That verdict answered Section IV "yes," and inserted in the blank in Section V, "Death."

   XII

   Colvin-el further submits that the verdict at the resentencing must [***60]be set aside because it is inconsistent with the verdict at the original trial on guilt or innocence.  The initial [*183] jury found Colvin-el guilty of murder in the first degree and specified that the finding was based both upon premeditation and upon felony murder. Colvin-el II, 314 Md. at 13, 548 A.2d at 511-12. The jury at the resentencing unanimously found as a nonstatutory mitigating circumstance that "the Defendant did not premeditate this murder." The point was not raised in Colvin-el's motion for a new trial filed in the circuit court.  Colvin-el asks that we extend the holding in Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988), and hold as a matter of law that "confidence in the reliability of the judgment [on resentencing] was fatally undermined when the sentencer made a finding of fact which effectively negated an element of the offense." Brief of Appellant at 41.

   As a matter of law, the issue of guilt or innocence of murder in the first degree, whether premeditated or felony murder, was not before the resentencing jury.  That jury had[***61] no power to alter the guilty verdict, affirmed as part of the judgment in Colvin-el I and left undisturbed by Colvin-el II. Because premeditation, as used to distinguish one type of first degree murder in the law of homicide, was no part of the resentencing, the resentencing jury was not instructed on the law of premeditation.  The jury at the trial on guilt or innocence of murder was so instructed.  The earlier jury's finding represents an application of the law to the facts.  The resentencing jury's use of the term, "premeditation," [**745] necessarily represents a legally uninformed, layperson's use of the term.  There is no evidence that Colvin-el went to the Surell home in order to kill Mrs. Buchman.  The evidence compels the inference that he seized the knife from the kitchen as a weapon of opportunity, most probably when he was surprised by his victim in a house that he thought was unoccupied.  That represents a lay impression of a lack of premeditation.  In law, twenty-eight stab wounds is sufficient evidence to find premeditation.

   XIII

   At the argument on the motion for new trial the prosecutor, while discussing the note set forth in Part XI, supra, recounted [*184] [***62] that one of the jurors telephoned the prosecutor after the case had concluded, indicated that that juror was telephoning defense counsel as well, and asked some questions.  The prosecutor then said:
 
"My point is I was curious.  I certainly was curious about that note.  And I asked him specifically.  And his response was, 'Oh, no, we didn't have any problem with section four, we had unanimously found beyond a reasonable doubt' . . . excuse me, 'to a preponderance of the evidence that the aggravating factors outweighed the mitigating factors.' He said, 'The problem came when we went to section five.' He said, 'Because there were some of us who still didn't want to give him the death penalty.' Told me two things; number one, the form works, the form works."

   Defense counsel made no point of the prosecutor's comments to the circuit court.  On this appeal Colvin-el interprets the prosecutor's description to mean that "some of the jurors clearly believed the death penalty inappropriate but nevertheless felt compelled to vote for it because of the operation of the form." Brief of Appellant at 42.  Citing, inter alia, Mills v. Maryland, 486 U.S. at 376-77, 108 S.Ct. at 1866-67, 100 L.Ed.2d at 394-96,[***63] Colvin-el contends that "the necessary degree of certainty and reliability was undermined by the possibility that the jurors (or some of them) believed that they were compelled to vote for death by the operation of the form, thus rendering the statute mandatory in its application to this case." Brief of Appellant at 42-43.

   The well-settled Maryland rule is that jurors cannot be heard to impeach their verdict.  Wernsing v. General Motors Corp., 298 Md. 406, 411-12, 470 A.2d 802, 804-05 (1984) (collecting cases); Oxtoby v. McGowan, 294 Md. 83, 101, 447 A.2d 860, 870 (1982). A fortiori, a verdict may not be impeached by hearsay attributed to a juror declarant.

   In any event, the description related by the prosecutor does not indicate that any juror was compelled by the form, or otherwise, to impose a death penalty.  Consistent with the prosecutor's description is that there was a further discussion [*185] after "yes" had been answered to Section IV and before "death" was inserted in Section V.  One effect of the Maryland form is that the jury's knowledge that a "yes" answer in Section IV[***64] results in the imposition of a sentence of death is reinforced when Section V is completed by the entry of the sentence.

   We know from the verdict sheet that one or more, but less than all, of the jurors had found two nonstatutory mitigating factors.  The trial court had instructed the jury that "[e]ach one of you should individually consider each [mitigating] circumstance." The court further instructed "that the burden of proof operates with respect to each juror individually, and you must not surrender your honest conviction as to the existence or non-existence of a mitigating circumstance solely because of the opinion of your fellow jurors." Whether one or more of the jurors took longer than others to join in the unanimous verdict is quite immaterial.  Each juror signed the verdict sheet. The jury was individually polled in open court, and each juror confirmed the verdict.

   We shall not disturb the verdict.

   XIV

   We have also considered the factors enumerated in Art. 27, § 414(e) and determined: [**746] (1) that the sentence of death was not imposed under the influence of passion, prejudice, or any other arbitrary factor; (2) that the evidence supports the jury's finding of the statutory [***65] aggravating circumstance that the murder was committed in the course of committing robbery; and (3) that the evidence supports the jury's finding that the aggravating circumstance outweighs the mitigating circumstances.

   JUDGMENT AFFIRMED.

DISSENTBY: BELL

DISSENT: ROBERT M. BELL, Judge, in part I. of which ELDRIDGE, J. joins.

   I respectfully dissent from the affirmation of the death penalty in the case sub judice.  I do so for two reasons: (1) [*186] the evidence was wholly insufficient to establish the petitioner's principalship in the first degree and (2) the trial court erred when it refused to dismiss the jury after it had deliberated for a reasonable amount of time.

   I.

   A.

   This is the third time this case has reached this Court for review.  On the first occasion, see Colvin v. State, 299 Md. 88, 472 A.2d 953 (1984) (Colvin-el I), the petitioner's convictions and death sentence were affirmed.  Pertinent to the issues sub judice, the majority in that case held that the evidence that the petitioner's fingerprints were on broken glass from the basement door, the supposed point of entry, and the petitioner pawned two items taken in the daytime [***66] housebreaking and robbery sufficiently proved the petitioner's criminal agency.  299 Md. at 110-112, 472 A.2d at 964. As to the former, relying on, among others, the facts that the premises were a private residence not generally accessible to the public and the basement was located in the back of the house, the Court concluded "that the circumstances surrounding the fingerprints found on the glass broken on the basement door tend to exclude the hypothesis that the print was impressed at a time other than that of the crime." Id. at 111, 472 A.2d at 964.

   The petitioner filed post conviction proceedings, alleging the incompetency of his counsel.  The hearing court granted him a new sentencing hearing but denied relief as to the convictions.  We reviewed those proceedings at the instance of the State.  State v. Colvin, 314 Md. 1, 548 A.2d 506 (1988). (Colvin-el II) We affirmed.

   The Court was not impressed insofar as the petitioner's incompetency of counsel claim was directed to the petitioner's convictions.  It noted:
 
None of the foregoing demonstrates[***67] the reasonable probability that Colvin-El would have been found innocent of first [*187] degree murder and of the underlying felonies if Payne [the petitioner's counsel] had utilized the specified information for cross-examination or as evidence in a defense case. First, none of the Monday morning quarterbacking casts any doubt on the fact that Colvin-El was present at the basement door of the Sorrell home after Ms. Susan Sorrell had left and before Mrs. Buchman's body was found.

   * * *
 
Thus, it is fanciful to suggest, as Colvin-El does, that Payne should have caused the jury to be uncertain whether Colvin-El was the thief because he might have found the jewelry or might have received it from the true thief sometime after the crime.  That does not explain away the fingerprints.
 
314 Md. at 14, 548 A.2d at 512 (footnote omitted).  Moreover, the Court observed:
 
The information developed at the post conviction hearing does not generate any reasonable probability that Colvin-El was not at least an accomplice in the murder. If the basement door was only a point attempted entry, and not a point of actual entry as Detective Sturgeon [***68] testified, the discrepancy does not undermine the fact that someone entered the house, murdered Mrs. Buchman and stole jewelry and other property.  There is no reasonable probability that Payne could have done anything to alter the fundamental fact that Colvin-El was [**747] present and at least aiding and abetting the daytime housebreaking and robbery.
 
Id. at 15-16, 548 A.2d at 513.

   As regards the sentencing phase of the proceedings, the Court assumed that counsel's ineffectiveness may have resulted in the jury not concluding that there was more than one person involved in the murder and that, but for that ineffectiveness, counsel would have been able to adduce sufficient evidence to generate a reasonable doubt as to whether the petitioner was the actual killer. To the extent that the petitioner was prejudiced by that there was prejudice, "if any," Id. at 16, 548 A.2d at 513. Curiously, while mentioning, [*188] as relevant to resentencing, the presence of strangers in the neighborhood and the movement of the bicycle from the neighbor's yard, the Court did not specify that the jury should also[***69] consider, when deciding the first degree principalship issue, whether the petitioner entered the premises through the basement door.

   B.

   To be eligible for the death penalty, a defendant must have been a principal in the first degree; he or she must be shown to have been the actual perpetrator of the murder. Maryland Code (1957, 1992 Repl.Vol.) Art. 27 § 413(e)(1); Maryland Rule 4-343(e); Wiggins v. State, 324 Md. 551, 584, 597 A.2d 1359, 1375 (1991), cert. denied,    U.S.   , 112 S.Ct. 1765, 118 L.Ed.2d 427 (1992); Johnson v. State, 303 Md. 487, 510, 495 A.2d 1, 12 (1985), cert. denied, 474 U.S. 1093, 106 S.Ct. 868, 88 L.Ed.2d 907, (1986); Stebbing v. State, 299 Md. 331, 371, 473 A.2d 903, 923, cert. denied, 469 U.S. 900, 105 S.Ct. 276, 83 L.Ed.2d 212 (1984). n1 It is of no consequence that, in Colvin-el I, we affirmed the petitioner's conviction of first degree murder and, in[***70] Colvin-el II, declined to upset it on the basis of the record developed at the post conviction proceeding.  Those cases demonstrate only that the evidence has been found to be sufficient to convict the defendant of being at least a principal in the second degree; they do not relieve the trier of fact in the sentencing proceeding of its obligation of determining, as a prerequisite to imposing the death penalty, whether the petitioner, in fact, committed the murder by his own hand.  See Art. 27 § 413(e)(1).

n1 The only exception to this Rule, not applicable here, is when the defendant employs another to commit murder. See Maryland Code (1957, 1992 Repl.Vol.) Art. 27 § 413(d)(7) and § 413(e)(1).

   In reviewing the sufficiency of the evidence of the petitioner's principalship in the first degree, we apply the test enunciated in Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979): "Whether, after viewing the evidence[***71] in the light most favorable to the prosecution, [*189] any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." See Wiggins, 324 Md. at 566-67, 597 A.2d at 1366; Tichnell v. State, 287 Md. 695, 717, 415 A.2d 830, 842 (1980). Furthermore, the death penalty is qualitatively different from other sentences. Consequently, greater certainty is required in finding that the jury's conclusion that the petitioner was the principal in the first degree was correct and rested on proper grounds.  See Mills v. Maryland, 486 U.S. 367, 376-77, 108 S.Ct. 1860, 1866-67, 100 L.Ed.2d 384, 395-96 (1988); Lockett v. Ohio , 438 U.S. 586, 604, 98 S.Ct. 2954, 2964, 57 L.Ed.2d 973, 989 (1978). Moreover, because the evidence upon which the finding that the petitioner was the principal in the first degree is premised is entirely circumstantial, that finding "is not to be sustained unless the circumstances are inconsistent with any reasonable[***72] hypothesis of innocence." West v. State, 312 Md. 197, 211-212, 539 A.2d 231, 238 (1988). See also Hebron v. State, 331 Md. 219, 224, 627 A.2d 1029, 1030-31 (1993); Wilson v. State, 319 Md. 530, 536-37, 573 A.2d 831, 834 (1990). Whether or not the matter is tried to a jury, the question whether the circumstances are inconsistent with a reasonable hypothesis of innocence is addressed to the trial court; it must be decided initially by the trial court, for if there are no such circumstances, then there is no basis for a [**748] jury decision on the matter.  Hebron, 331 Md. at 233-34, 627 A.2d at 1036.

   C.

   The majority rejected the petitioner's argument that the State did not sufficiently prove that he was a principal in the first degree on two grounds. First, relying on the testimony of the victim's granddaughter, it held that it was established that the petitioner's fingerprints were impressed on the basement door glass at the time of the crime.  Then, reasoning from the nature of the document and its location, [***73] the majority opines that the jury could logically have determined that the fingerprint on the notebook page had nothing to do with the [*190] murder. In reaching these conclusions, it all but ignores the other fingerprint evidence and the petitioner's point of entry argument. n2

n2 In connection with the petitioner's improper closing argument contentions, the majority alludes to how it treated the point of entry issue in State v. Colvin, 314 Md. 1, 14, 548 A.2d 506, 512 (1988). In that case, the argument was divorced from the issue of the petitioner's guilt of first degree murder, the Court noting that whether or not the petitioner entered the house through the basement door, someone entered the house and murdered Mrs. Buchman.  The Court concluded that, at the very least, the petitioner was present as an aider and abettor of daytime housebreaking and robbery. 314 Md. at 15-16, 548 A.2d at 513. From the Court's recitation of the particulars in which the petitioner alleged that his counsel was ineffective, 314 Md. at 13-14, 548 A.2d at 512, it may be assumed that the petitioner did not raise, in the post conviction proceedings, the point of entry argument as it related to sentencing.  Be that as it may, at the resentencing in this case, the petitioner did vigorously challenge the State's theory that he entered the premises through the basement door. And, since that was the State's only theory of how entry was gained, it was critical that the evidence presented at the resentencing hearing support it. As I will demonstrate, it does not.

[***74]

   It is not disputed that the petitioner possessed within eight days of the murder, two items which were among the pieces of jewelry taken from the Surell home.  Nor is it disputed that the petitioner's fingerprints were impressed on pieces of glass from the basement door window.  From this, the State theorizes that the petitioner broke the glass in the door, placed it on the steps, reached into the house and undid the security locks, opened the door, and entered the Surell home.  While in the home, it continues, he was surprised by the victim. Grabbing a knife from the kitchen, he stabbed her 28 times, causing her death. Then, the petitioner took the money from the victim's handbag and wallet and went into the master bedroom and took the jewelry.  Thus, critical to the State's theory of the case is that the petitioner entered the house through the basement door.

   During the resentencing proceeding, the issue whether the petitioner could have gained entry through the basement door was hotly contested.  Unlike at his original trial and sentencing, n3 [*191] Detective Sturgeon was cross-examined extensively on whether, given the limited extent that the door could open, it was possible[***75] for the basement door to be the point of entry.  Sturgeon testified that he could find no point of forced entry other than the basement door and, so, that the basement door had to be the point of entry.  The petitioner's counsel's observation that, "Even though the door could only be opened four inches," was met only with the response, "Approximately four inches." Sturgeon later volunteered that "It looked wide enough for somebody to get . . . no, not me."

n3 Despite Detective Sturgeon's report containing the comment that "the door could be opened, but only approx. four inches," the petitioner's counsel conducted no cross-examination on whether it was possible for the petitioner to pass through an opening approximately four inches.  This was one of the bases for the petitioner's allegation, in the post conviction proceedings, that he received ineffective assistance of counsel.

   Detective Sturgeon's testimony revealed the reason the door could not be fully opened -- a white metal storage cabinet was up against the door. [***76]A photograph of that area of the basement confirms Detective Sturgeon's observation with regard to the white metal storage cabinet. n4 Indeed, in Colvin-el II, 314 Md. at 10, 548 A.2d at 510, [**749] the Court described that photograph as showing
 
a white metal storage cabinet in front of the hinged side of the door standing to a height slightly above that of the door knob.  The back of the cabinet is flush against a wall which is perpendicular to the exterior wall in which the door is set.  The front of the metal cabinet extends beyond the hinged edge of the door to a point approximately half way across the width of the door. On the opposite side of the door from the storage cabinet and extending perpendicularly from the exterior wall were a clothes dryer and a clothes washer. n[5] The distance between those two machines and [*192] the storage cabinet is only several inches more than the width of the ironing board. n[6]
 
The Court also assessed the conclusions that the jury could properly have drawn from the testimony and photograph,
 
A fact finder could find that one attempting to open the basement door from the outside would not[***77] see the storage cabinet because of the curtain over the windows of the door. Furthermore, even if all of the locks on the door had been unlocked, a fact finder could conclude that the door would not open more than the four inches described in Det. Sturgeon's report because the door would strike the cabinet and the cabinet would not move because it butts against the wall.  A fact finder could also believe that, had the folded ironing board been leaning against the knob side of the door in its described, customary position, anyone attempting to enter the basement by opening the door would knock the folded ironing board to the floor.
 
Id.

n4 Not only does that picture reveal a metal cabinet, but that it was piled high with other items.

n5 The washer and dryer extended to within a few inches of the door frame and, thus, were very close to the door on the knob side.  That constricted the space into which one entering that door would have to pass.

n6 There was testimony that an ironing board was usually stored leaning against the basement door. In the photograph the ironing board was lying on the floor in front of the door.

[***78]

   Although Detective Sturgeon testified initially that he could not tell if the cabinet had been moved, when pressed, he indicated that he did not find any evidence that it had been.  Moreover, Detective Sturgeon also acknowledged under cross-examination that, while the ironing board was lying on the floor in front of the door, the ironing board cover did not appear to have been disturbed, i.e. , there were no footprints on it.  Sturgeon was not able to testify that the items on top of the washer and dryer, which were within a very few inches of the door frame and, thus, very close to the knob side of the door, had been disturbed.  The only explanation for Detective Sturgeon's conclusion that the basement door was the point of entry is his testimony that: "I could not find any other way into the house.  The . . . I said approximately four inches.  It [*193]could have been a little more." Aside from indicating that the opening looked large enough for some human beings to get through, the detective very pointedly noted that he could not and he did not venture to characterize just how much more than four inches the door could open.

   Four inches is an extremely small space through[***79] which to pass. The petitioner at the time of the offense was 5'7" and weighed 135 lbs.  It is inconceivable that a man of that size could pass through an opening of only four inches.  There was no testimony in the record that the petitioner was unusually thin or adept at passing through small spaces.  But even if there were, an opening of four inches, or in Detective Sturgeon's words, "a little more," will not accommodate a man's head.  As the petitioner's counsel argued in closing argument, perhaps Gumby, given the flexibility of its body, including its head, could have passed through such a small opening, but no adult could.

   The State apparently concedes that it would be impossible for an adult man to pass through a four inch opening. It relies, however, on Detective Sturgeon's conclusion that the opening was wide enough for a man, not him, but presumably the petitioner, to pass through.  The State is [**750] obviously of the view that Detective Sturgeon, an experienced police officer and lab technician, is more adept at determining whether an opening will accommodate a man than in characterizing, in inches, the width of a particular opening. But there is simply no basis for that conclusion. [***80] Presumably, the detective utilized his concededly vast police and lab technician experience when he estimated how far the door would open.  Indeed, the fact that the metal cabinet extended to the middle of the door, at a height higher than the door knob, is corroborative of Detective Sturgeon's estimate as to how far the door would open.  Logic teaches that a door so obstructed could not open very far. Moreover, the detective's testimony that the metal storage cabinet had not been moved is even more corroborative.

   [*194] Detective Sturgeon said that, by characterizing the opening as approximately four inches, he meant to indicate that the door could open a little more than four inches.  At no time, however, did he say how much more. And, at no time, did the State produce evidence to show just how much more the door would open, or just how wide the opening needed to be to allow access by an adult male.  Six inches is a "little more" than four inches.  Nevertheless, it seems just as impossible that an adult male, 5'7" tall and 135 lbs, could pass through an opening that size.  Again, the head cannot contract, it is not flexible enough to make adjustments necessary to accommodate[***81] a small space.

   Without a predicate more substantial than, "it opened wide enough for a man to pass through," there simply was no basis for any rational trier of fact to find that the opening was sufficiently wide to allow the petitioner to pass through.  The jury could only have adopted the State's theory that the petitioner entered the house through the basement door by crediting Detective Sturgeon's conclusion that the door opened wide enough to admit an adult man. That, in turn, required the jury to reject both Detective Sturgeon's initial conclusion and the objectively verifiable evidence bearing on the issue, upon which, by the way, Detective Sturgeon relied for both opinions.  Permitting a jury to make a factual finding on the basis of conclusions for which the record offers no support cannot be justified or countenanced.

   The state's point of entry evidence was insufficient for another reason.  The area immediately in front of the basement door showed no signs of entry. Detective Sturgeon testified that there were no footprints on the ironing board and the items on the washer/dryer "didn't look disturbed." This is important because the ironing board took up all[***82] but a couple of inches of the walking surface immediately in front of the door, presenting no room for one entering through that door to proceed except by walking over the ironing board or climbing over the washer and dryer, thereby disturbing the material that was on top of the washer and dryer.

   [*195] D.

   Like the point of entry, the fingerprint evidence bears significantly on the question whether the State produced sufficient circumstantial evidence of the petitioner's criminal agency to exclude a reasonable hypothesis that he was not the actual murderer.  That the State's case against the petitioner was purely circumstantial cannot be doubted.  There was no direct evidence of the petitioner's involvement in the murder, only inferences to be drawn from his fingerprints being on the broken glass from the basement door and his possession of property taken during the daytime housebreaking and robbery. The petitioner denied that he committed the murder. To support that contention and his further contention that someone else did, the petitioner relied on the State's inability to match his fingerprints with those latent non-elimination fingerprints, of comparison value, lifted from[***83] various places inside the house.

   A number of latent prints was lifted from various locations in the house. With the exception of the fingerprints lifted from the broken glass from the basement door, none of them could be matched with the petitioner's prints. As to most of them, [**751] and, in particular, the palm print lifted from the refrigerator, the fingerprint lifted from kitchen door frame, and the fingerprints and partial palm print lifted from the lawn chair, Mr. Simms, formerly the supervisor of the latent print section of Baltimore County Crime Lab and the fingerprint expert, testified that this meant that it could not definitively be said either that they were the petitioner's or that they were not.  There simply were not enough points of comparison to permit a positive identification with known prints with which they were compared, he said.  In other words, failure to obtain a match did not eliminate either petitioner or any other person who did not belong in the house, including those suspects with whose prints the latent prints were compared, as the source of the prints.

    One fingerprint, that lifted from a page in the victim's notebook, found in the victim's handbag, was definitely[***84] determined [*196] not to have been made by the petitioner or by any of the victim's family.  Mr. Simms so testified.  Indeed, he indicated that given the very different patterns of the two prints, only a cursory examination of that latent print and the petitioner's fingerprints was sufficient to exclude the petitioner as its source.

   Notwithstanding the State's theory, apparently adopted by the jury, that the fingerprint on the notebook page was most probably that of the person whose name appeared on that page and, consequently, had no relevance to the murder, the mere presence of that fingerprint and its lack of connection with petitioner, as well as the presence of other non-elimination, comparison value prints also found inside the house, support the petitioner's argument that he did not commit the murder, i.e., that he was not a principal in the first degree. n7 That evidence, taken together, also supports the hypothesis that someone other than the petitioner was in the house and that that someone committed the murder. In that regard the fingerprint on the notebook page is particularly important. From it could be inferred that the murderer left his or her fingerprint when, [***85]in the course of looking for money, he or she ransacked the victim's handbag and its contents.  Notwithstanding, and perhaps because of its inconclusiveness, the other fingerprint evidence is also important.  Because the source of those prints could not be definitively established, they cannot be the basis for the jury finding that the petitioner was inside the house.  Therefore, unless there is evidence that otherwise places the petitioner inside the house, this evidence is an insufficient predicate from which to infer that the petitioner committed the murder. In other words, inconclusive fingerprint evidence does not become sufficient simply [*197] because the defendant is placed in the area of the crime at or about the time it was committed.  Thus, viewed by itself, the fingerprint evidence is, at best, consistent with the petitioner being, as this Court theorized in Colvin-el II, 314 Md. at 16, 548 A.2d at 513, an aider and abettor of the crimes of daytime housebreaking and robbery.

n7 The majority takes the position that the jury could have found that the murderer would not have taken the time to go through the victim's notebook after having ransacked the handbag and found her money.  Curiously, however, it was the police who saw fit to take latent prints from that notebook.  This is consistent, of course, with its theory that the murderer robbed the victim and that in the process of looking for her money, handled and looked through the notebook, possibly leaving his or her fingerprints on one of its pages.

[***86]

   Because the fingerprint and other evidence developed inside the house do not link the petitioner to the murder, his death sentence can be sustained only if the evidence that does link him to the crime is sufficient to place him inside the house.  While in the context of the guilt-innocence phase of a trial, it may be, ordinarily, appropriate to be less concerned with the petitioner's actual entry into the house, it being unnecessary in that proceeding to prove that he actually killed the victim, that is not true in the context of this capital sentencing proceeding.  The recognition and proof that "someone entered the house, murdered [the victim], and stole jewelry and other property," Colvin-el II, 314 Md. at 15-16, 548 A.2d at 513, does not [**752] establish, for sentencing purposes, who the first degree principal was; thus, it does not help the State.  The critical issue that leaves unanswered is who that someone was that murdered the victim.  Consequently, unless the State's evidence permitted a rational jury to find that the petitioner actually entered the house through the basement door, that being its only theory of entry, the issue [***87] of the petitioner's criminal agency as a first degree principal should not have been submitted to the jury.  The jury is required to resolve issues presented to it on the basis of evidence, not speculation.

   The majority does not address the petitioner's point of entry argument in the context of the petitioner's challenge to the sufficiency of the evidence; rather, it touches on the issue only in connection with the petitioner's claim that the State engaged in improper jury argument.  But that issue is extremely critical to the propriety of the death sentence imposed in this case.

   As the petitioner argued in closing argument, unless, given the State's theory, he can be placed in the house through the [*198] approximately four inch opening in the basement door, there simply is no evidence that he committed the murder. The State's only theory was that the petitioner, acting alone, entered the house through the basement door, and committed the murder when he was surprised by the victim.  That theory works only if the petitioner is placed inside the house, in the manner alleged by the State.  As I have demonstrated, the testimony of Detective Sturgeon, which the State offered in support [***88]of its theory, was wholly insufficient in that regard.  Accordingly, it is appropriate to repeat that, in the context of proving first degree principalship, it is not enough to surmise, as the Court did in Colvin-el II, that someone entered the house and killed the victim.  The critical inquiry is who that someone was.  Surmise simply is not acceptable as proof.

   The inferences to be drawn from the circumstantial evidence connecting the petitioner to the crimes may suffice to sustain the petitioner's guilt of first degree murder. Given the fingerprint evidence, they clearly do not suffice to prove the petitioner's first degree principalship. Indeed, on that issue, the best that can be said is that the case is exceedingly weak.  Moreover, the evidence as to the point of entry, indicating as it does that the point the State identifies could only be a point of attempted entry, further exposes the weakness of the State's circumstantial case against the petitioner as the actual perpetrator of the murder. It becomes weaker still when the evidence of other suspects, combined with the neighbors' testimony concerning the presence in the area, at about the time the crimes occurred, of[***89] other persons who could possibly have committed the offenses, are considered.

   Merely because the petitioner's first degree murder conviction has twice been affirmed does not mean the jury finding that he was a principal in the first degree must be upheld.  The proof necessary to establish these two propositions may be, and, in this case, is, quite different.  To sustain the former, proof that the petitioner aided and abetted the daytime housebreaking and the robbery is enough; the State need not prove, in other words, that the petitioner was a principal in [*199] the first degree.  See Colvin-el II, 314 Md. at 16, 548 A.2d at 513. On the other hand, the finding that the petitioner was the principal in the first degree may only be upheld on evidence that the petitioner committed the murder by his own hand.  When the issue is the petitioner's first degree principalship, and there are indications that the petitioner may not have acted alone, it is not enough merely to prove the petitioner's presence at the time of the murder or even his possession of the fruits of the crime; it must also be shown that the petitioner actually committed[***90] the murder. Of necessity, therefore, this requires the State to establish that the petitioner was in the house, rather than at the basement door, when the murder occurred.  The State failed utterly in its proof in this regard.  In the first place, it did not prove that it was possible for the petitioner to have gained entry at the alleged [**753] point of entry. Second, while possession of the fruits of a recent daytime housebreaking and robbery will support an inference that the possessor is the thief, that is true, ordinarily, only when there is no evidence "undermining the inference from the evidence that the defendant was guilty." Hebron, 331 Md. at 231, 627 A.2d at 1035. In the case sub judice, the State's failure to prove entry, the fingerprint found not to be that of the petitioner, and the inconclusive fingerprint evidence constitute evidence undermining the inference that the petitioner was the principal in the first degree.  Moreover, given that evidence, there is "no basis upon which a rational finder of fact could [find that the petitioner was the principal in the first degree] without speculating as to which of the two versions[***91] is the correct version." Id. at 234, 627 A.2d at 1036. Thus, while, as we have already held, placing the petitioner at the basement door when the murder, daytime housebreaking, and robbery occurred and, eight days thereafter, in possession of some of the fruits of those crimes, may be enough to find the petitioner guilty of first degree murder, it falls well short of being sufficient to establish that he committed the murder.

   To reiterate, tending to prove that the petitioner was a principal in the first degree in the victim's murder are the petitioner's fingerprints found on broken glass taken from the [*200] basement door and the petitioner's pawning, eight days after the murder, two items taken in the daytime housebreaking. On the other hand, the facts that the basement door would only open "approximately" four inches, that the petitioner's fingerprints were not matched with any of the latent prints lifted from the interior of the house, that the fingerprint on a page of the victim's notebook, found in the victim's handbag, was definitely not the petitioner's and that there were other persons in the area at about the time of the[***92] crimes who could have committed them all tend to disprove that proposition.  What we have, therefore, is a weak circumstantial case, made weaker by evidence, tending to negate the petitioner's first degree principalship, that the petitioner could not gain entry as the State alleged.  I agree with Judge Eldridge, speaking in dissent in Wiggins v. State, 324 Md. at 587, 597 A.2d at 1376, while, viewed in isolation, that evidence may not support a reasonable hypothesis that another person was present when the crime was committed; however, "[w]hen this evidence is added to an already weak circumstantial case, . . . the combination leads to the conclusion that the evidence at the sentencing hearing was not sufficient to establish, beyond a reasonable doubt, that [the petitioner] was the principal in the first degree."

   II.

   For the reasons I stated in my dissents in Bruce v. State, 328 Md. 594, 632, 616 A.2d 392, 411 (1992), cert. denied,    U.S.   , 113 S.Ct. 2936, 124 L.Ed.2d 686 (1993); Oken v. State, 327 Md. 628, 683-89, 612 A.2d 258, 285-88 (1992),[***93] and Booth v. State, 327 Md. 142, 203-17, 608 A.2d 162, 192-99, cert. denied,    U.S.   , 113 S.Ct. 500, 121 L.Ed.2d 437 (1992) I also dissent from Part XI of the majority opinion.  It is a perfectly acceptable outcome for the jury not to agree, see Maryland Code (1957, 1992 Repl.Vol.) Art. 27, § 413(k)(2), and I continue to believe that the jury should be told and, thus, know, that. 

STATE of New Jersey ex rel. Sandra LENNON v. GlennSTRAZZELLA 
No. 146, September Term, 1992
 
COURT OF APPEALS OF MARYLAND
 
331 Md. 270; 627 A.2d 1055; 1993 Md. LEXIS 105

 July  22, 1993    July  22, 1993, Filed

   PRIOR HISTORY: [***1]  Appeal from the Circuit Court for  Anne Arundel  County. (Pursuant to certiorari to Court of Special Appeals). James C. Cawood, Jr. JUDGE

DISPOSITION: JUDGMENT REVERSED; CASE REMANDED TO THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY WITH DIRECTIONS TO REINSTATE THE ACTION FILED BY STATE OF NEW JERSEY; COSTS TO BE PAID BY THE APPELLEE.

CORE TERMS:  notice, voluntary dismissal, child support, summary judgment, paternity, voluntarily dismissed, order of dismissal, blood test, counterclaim, pleaded, motion to dismiss, adverse party, recipient, assign, real party in interest, counter claim, deems proper, effected, Reorganization Rule, plain language, participating, unilateral, departure, patterned, embodied, specify, Family Law Article, right to receive, court order, et seq

COUNSEL: Areta L. Kupchyk, Asst. Atty. Gen., (J. Joseph Curran, Jr., Atty. Gen., both on brief), Baltimore, for appellant.

   Charles J. Muskin, Glen Burnie, for appellee.

JUDGES: Murphy, C.J., and Eldridge, Rodowsky, McAuliffe, Chasanow, Karwacki and Robert M. Bell, JJ.

OPINIONBY: BELL

OPINION: [*272] [**1056] In 1983, upon receiving Aid to Families with Dependent Children (AFDC), Sandra Lennon assigned her right to receive child support from Glenn Strazzella, the appellee, to the State of Delaware, which then filed a paternity and child support action against the appellee. n1 The appellee requested a blood test and Ms. Lennon refused to cooperate.  As a result, the State of Delaware terminated Ms. Lennon's assistance and the court dismissed the action without prejudice.

 n1 Federal law requires a recipient of federal assistance to assign support rights to the state providing the benefits.  See 42 U.S.C. § 602(a)(26)(A) (1985 & 1993 Cum.Supp.); 45 C.F.R. § 232.11(a)(1) (1992).  There is a similar requirement under Maryland law.  See Md.Code (1957, 1990 Repl.Vol.) Art. 88A, § 48.

[***2]

   In 1990, Ms. Lennon, then living in New Jersey, applied for AFDC benefits, assigning her rights to receive child support to the State of New Jersey, the appellant.  The appellant filed on behalf of Ms. Lennon, see Md.Code (1984, 1991 Repl.Vol.) § 10-301 et seq. of the Family Law Article, the Maryland Uniform Reciprocal Enforcement of Support Act (URESA), a paternity and child support action against the appellee, a resident of Maryland, in the Circuit Court for Anne Arundel County.  The appellee again requested a blood test, again Ms. Lennon refused to cooperate, and again the case was dismissed without prejudice. The court ordered the case dismissed in response to a motion to dismiss filed by the appellant.

   The appellant filed another paternity and child support action against the appellee in 1991. n2 The appellee moved to dismiss, arguing that Ms. Lennon had voluntarily dismissed [*273] two prior paternity and support actions.  The Circuit Court for Anne Arundel County granted the motion.  We issued a writ of certiorari prior to consideration, by the Court of Special Appeals, or the appellant's appeal of that judgment.  329 Md. 338, 619 A.2d 547.[***3] We address the proper construction of Rule 2-506, specifically, whether the two dismissal rule embodied in Rule 2-506(c) applies to a dismissal by the court, even one prompted by a motion to dismiss filed by the plaintiff.

n2 Ms. Lennon has since taken the blood test.

   I.

   The appellant posits that it, not Ms. Lennon, is the "real party in interest" in this case.  It points out that Ms. Lennon, an AFDC recipient, is required by law, see N.J.Stat.Ann. § 44:10-2 (1940 & 1992 Cum.Supp.), to assign her right to receive child support to the State of New Jersey; thus, it asserts, it, rather than Ms. Lennon, has the right to enforce the appellee's support obligation.  Additionally, the appellant, contending that the lower court incorrectly concluded that Ms. Lennon voluntarily dismissed two prior paternity actions, notes that neither Ms. Lennon, nor the State of New Jersey has ever filed a notice of dismissal in either of the prior actions; consequently, it argues Rule 2-506(c) does not apply.  Lastly, the appellant insists[***4] that a dismissal pursuant to Rule 2-506(c) is inconsistent with the Paternity Statute, see Md. Code (1984, 1991 Repl.Vol.) § 5-1001 et seq. of the Family Law Article and, thus, is barred as a matter of law.

    As the appellee sees it, on the other hand, the appellant is not the real party in interest, either in the current action or in [**1057] the previous one it filed.  Although he concedes that both federal and state law require a recipient of AFDC to assign to the state his or her rights to receive child support payments, the appellee posits that, because Ms. Lennon lost her right to proceed against him when appellant's action was dismissed as a result of her refusal to take a blood test, the second time that had occurred, the appellant, her assignee, lost its right as well.  In addition, the appellee contends that the law has been clear for over a century that an order dismissing an action bars another action for the same cause.  The real issue, he [*274] opines, is the effect of an order of dismissal which does not state whether it is with or without prejudice.  He suggests, notwithstanding Rule 2-506(c), that when the order of dismissal is silent, the only logical[***5] effect which should flow from the order is that consistent with the basic "notice of dismissal."

   II.

   We begin our analysis, as we must, with Rule 2-506(c).  It provides:

   (c) Effect.  -- Unless otherwise specified in the notice of dismissal, stipulation, or order of court, a dismissal is without prejudice, except that a notice of dismissal operates as an adjudication upon the merits when filed by a party who has previously dismissed in a court of any state or in any court of the United States an action based on or including the same claim.
 
To interpret rules of procedure, we use the same canons and principles of construction used to interpret statutes.  Hartless v. State, 327 Md. 558, 563, 611 A.2d 581, 583 (1992); State v. Romulus, 315 Md. 526, 533, 555 A.2d 494, 496 (1989); O'Donnell v. McGann, 310 Md. 342, 350, 529 A.2d 372, 376 (1987); In re Leslie M., 305 Md. 477, 481, 505 A.2d 504, 507 (1986); Pappas v. Pappas, 287 Md. 455, 465, 413 A.2d 549, 553 (1980).[***6] In our effort to discern the meaning of a rule, we look first to the words of the rule.  When the words are clear and unambiguous, ordinarily we need not go any further.  Mustafa v. State, 323 Md. 65, 73, 591 A.2d 481, 485 (1991); G. Heileman Brewing Co. v. Stroh Brewery Co., 308 Md. 746, 755, 521 A.2d 1225, 1230 (1987); In re Criminal Investigation No. 1-162, 307 Md. 674, 685, 516 A.2d 976, 982 (1986); Comptroller of Treasury v. Fairchild Industries, Inc., 303 Md. 280, 284, 493 A.2d 341, 343 (1985). Only when the language of the rule is ambiguous is it necessary that we look elsewhere to ascertain legislative intent.  State Comm'n on Human Relations v. Mayor and City Council of Baltimore, 280 Md. 35, 41, 371 A.2d 645, 648 (1977). We are also to give effect to the entire rule, neither adding, nor deleting, words in order to give it a [*275] meaning not otherwise evident by the words actually used.  Bd. of Educ. of Garrett County v. Lendo, 295 Md. 55, 63, 453 A.2d 1185, 1189 (1982);[***7] Smelser v. Criterion Ins. Co., 293 Md. 384, 389, 444 A.2d 1024, 1027 (1982); Pappas v. Pappas, 287 Md. 455, 465, 413 A.2d 549, 553 (1980). Finally, we seek to give the rule a reasonable interpretation, not one that is illogical or incompatible with common sense.  D & Y, Inc. v. Winston, 320 Md. 534, 538, 578 A.2d 1177, 1179 (1990); Blandon v. State, 304 Md. 316, 319, 498 A.2d 1195, 1196 (1985); Erwin and Shafer, Inc. v. Pabst Brewing Co., 304 Md. 302, 315, 498 A.2d 1188, 1194 (1985).

   Rule 2-506(c) is clear; a dismissal is deemed to be without prejudice unless a contrary intention is shown in the instrument effecting the dismissal.  The issue we must decide is the meaning of the proviso, "except that a notice of dismissal operates as an adjudication upon the merits when filed by a party who has previously dismissed in any court of any state or in any court of the United States an action based on or including the same claim." (emphasis supplied) The other[***8] portions of the rule provide some guidance:

   (a) By Notice of Dismissal or Stipulation.  -- Except as otherwise provided in these rules or by statute, a plaintiff may dismiss an action without leave of court (1) by filing a notice of dismissal at any time before the adverse party files an [**1058] answer or a motion for summary judgment or (2) by filing a stipulation of dismissal signed by all parties who have appeared in the action.

   (b) By Order of Court.  -- Except as provided in section (a) of this Rule, a plaintiff may dismiss an action only by order of court and upon such terms and conditions as the court deems proper. If a counterclaim has been pleaded prior to the filing of the plaintiff's motion for the voluntary dismissal, the action shall not be dismissed over the objection of the party who pleaded the counterclaim unless the counterclaim can remain pending for independent adjudication by the court.

   An action may be voluntarily dismissed in three ways: by notice of dismissal; by stipulation of dismissal; see 2-506(a); [*276] or by order of court. Rule 2-506(b).  Only in the case of a notice of dismissal, if done "before the adverse party files an answer[***9] or a motion for summary judgment," may a plaintiff act completely unilaterally.  The issue then is whether, when there has been a prior voluntary dismissal, n3 however effected -- by notice of dismissal, stipulation of dismissal, or order of court -- a subsequent voluntary dismissal by means other than notice of dismissal, "operates as adjudication upon the merits."

n3 From the context, it may be inferred that "previously dismissed" in Rule 2-506(c) refers to a voluntary dismissal. Since, however, as we have seen, voluntary dismissal may be effected by order of court, on motion of a party, or by a stipulation of the parties, it is not at all clear whether the two dismissal rule contemplates, as the predicate for its application, a prior notice of dismissal or simply a prior voluntary dismissal. We need not address that issue on this record.  But see Poloron Products, Inc. v. Lybrand & Ross Bros. & Montgomery, 534 F.2d 1012 (7th Cir.1976) (FRCP 41 does not apply when a notice of dismissal follows a stipulation of dismissal because "[t]he danger of . . . abuse [that Rule 41 was designed to prevent] diminishes where the first dismissal was by stipulation.  Dismissal by stipulation is not a unilateral act on the part of the plaintiff, but rather a mutual agreement by all the parties.").

[***10]

   By using the term "notice of dismissal", Rule 2-506(c) makes clear that it is that form of voluntary dismissal that, following "a previous dismissal," operates as an adjudication of the merits.  In this case, therefore, assuming the Delaware action was voluntarily dismissed, n4 the initial Anne Arundel County action, because effected by court order, albeit on motion of the appellant, and not by notice of dismissal, did not operate as an adjudication of the merits.  To be an adjudication of the merits, a dismissal by court order, even one granting the plaintiff's motion to dismiss, or based on stipulation must state that the dismissal is with prejudice.

n4 As a matter of fact, the record is clear that the Delaware action was dismissed by order of court, which stated that the dismissal was without prejudice.  The record does not indicate whether the State of Delaware moved to dismiss.

   Our reading of the rule is confirmed by its history.  In the interest of completeness, we may look at the purpose of the [*277] [***11] rule and compare the result obtained when we consider its plain language in light of that purpose.  Sabatier v. State Farm Mutual Auto Insurance Company, 323 Md. 232, 250, 592 A.2d 1098, 1107 (1991); Mustafa, 323 Md. at 73, 591 A.2d at 485; Baltimore County Coalition v. Unfair Taxes v. Baltimore County, 321 Md. 184, 203, 582 A.2d 510, 519 (1990); Cunningham v. State, 318 Md. 182, 185, 567 A.2d 126, 127 (1989); Kaczorowski v. Mayor and City Council of Baltimore, 309 Md. 505, 514-15, 525 A.2d 628, 632-33 (1987).

   Rule 2-506 was adopted by the Court of Appeals on April 6, 1984, effective July 1, 1984.  It was patterned after proposed Reorganization Rule 2-538, n5 which in turn [**1059] was based on Federal Rule of Civil Procedure (FRCP) 41(a) n6 and former [*278] Maryland Rule 541. n7 Former Rule 541 permitted a law action to be dismissed unilaterally by the plaintiff at any time before evidence was introduced at trial, thus, "giving the plaintiff control[***12] over the court's trial docket and over the judge and jury before whom the case was tried." Paul V. Niemeyer and Linda M. Schuett, Maryland Rules Commentary, 351 (2nd ed. 1992).  By amending former Rule 541, the Court sought to prevent the unilateral dismissal of cases in which the defendant had acquired a right to affirmative relief.  Id. Rule 2-506 permits a plaintiff voluntarily to dismiss only when the defendant has not filed an answer or a motion for summary judgment. Rule 2-506(a); Scheve v. Shudder, 328 Md. 363, 377, 614 A.2d 582, 589-90 (1992).

n5 As proposed, see Minutes, Court of Appeals Standing Committee on Rules of Practice & Procedure, May 22-23, 1981, that rule provided:
 
Rule 2-538.  Voluntary dismissal
(a) By notice of dismissal; by stipulation.

   Except otherwise provided in these Rules or by statute, a plaintiff may dismiss an action without leave of court either by filing a notice of dismissal at anytime before the adverse party files an answer or a motion for summary judgment whichever occurs first, or by filing a stipulation of dismissal signed by all parties who have appeared in the action.
(b) By order of court

   Except as provided in section (a) of this Rule, a plaintiff may not dismiss an action without leave of court.  If a counter claim has been pleaded prior to the filing of plaintiff's motion for voluntary dismissal, the action shall not be dismissed over the objection of the party who pleaded the counter claim unless the counter claim can remain pending for independent adjudication by the court.  When the court grants leave to dismiss, the order may include those terms and conditions of dismissal which the court deems proper.
(c) Effect

   Unless otherwise specified in the notice of dismissal, stipulation, or order of court, a dismissal is without prejudice, except that a notice of dismissal operates as an adjudication upon the merits but filed by a party who has previously dismissed in any court of any state or any court of the United States an action based on or including the same claim.
[***13] 

n6 Federal Rule of Civil Procedure 41(a) provided then, as now:
 
(a) Voluntary Dismissal: Effect Thereof.

   (1) By Plaintiff: by Stipulation.  Subject to the provisions of Rule 23(e) of Rule 66, and of any statute of the United States, an action may be dismissed by the plaintiff without order of court (i) by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs, or (ii) by filing a stipulation of dismissal signed by all parties who have appeared in the action.  Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice, except that a notice of dismissal operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in any court of the United States or of any state an action based on or including the same claim.

   (2) By Order of Court.  Except as provided in paragraph (1) of this subdivision of this rule, an action shall not be dismissed at the plaintiff's instance save upon order of the court and upon such terms and conditions as the court deems proper. If a counterclaim has been pleaded by a defendant prior to the service upon the defendant of the plaintiff's motion to dismiss, the action shall not be dismissed against the defendant's objection unless the counterclaim can remain pending for independent adjudication by the court.  Unless otherwise specified in the order, a dismissal under this paragraph is without prejudice.
[***14] 

n7 Other jurisdictions have a similar rule patterned after FRCP 41.  See e.g. Delaware Superior Court Rule 41(a)(1); District of Columbia Superior Court Rule 41(a)(1); Florida Rule of Civil Procedure 1.420(a)(1); Minnesota Rule of Civil Procedure 41.01; Missouri Rule of Civil Procedure 67.01; New Jersey Civil Practice Rule 4:37-1(a); North Carolina Rule of Civil Procedure 41(a)(1); South Carolina Rule of Civil Procedure 41(a)(1).

   The two dismissal rule, embodied in Reorganization Rule 2-538(c), was discussed at the Rules Committee meeting of May 22, 1981.  It was approved and referred to the Style Committee with the understanding that "the two dismissal rule does [*279] not apply to stipulations of dismissal or dismissals granted with leave of court.  A 'notice of dismissal' operates as an adjudication upon the merits only when the plaintiff has previously dismissed an action based on or including the same claim." Minutes at 48-49.  The style committee was instructed by the chairman to ensure that that point was clear. Id.

   As indicated, Rule 2-506 is largely derived from FRCP 41, and [***15] more specifically, subsection (c) is largely derived from FRCP 41(a)(1).  The interpretation of that rule by the federal courts further buttresses the interpretation we have given Rule 2-506(c).  See Harris v. State, 331 Md. 137, 156-57, 626 A.2d 946, 956 (1993); Faulk v. State's Attorney, 299 Md. 493, 506, 474 A.2d 880, 887 (1984); Metropolitan Mortgage Fund, Inc. v. Basiliko, 288 Md. 25, 27, 415 A.2d 582, 583 (1980). See also Atlantic Sea-Con v. Robert Dann Co., 321 Md. 275, 282, 582 A.2d 981, 984 (1990).

   Construing FRCP 41(a)(1), the Court of Appeals for the Fourth Circuit has held [**1060] that the "two dismissal rule applies when the second dismissal is by notice, but not when the defendant is dismissed by motion or by stipulation." Manning v. South Carolina Department of Highway & Public Safety, 914 F.2d 44, 47 n. 3 (4th Cir.1990), citing 9 Charles A. Wright & Arthur Miller, Federal Practice & Procedure § 2368, at 188 (1971).  See Lake at Las Vegas Investors v. Pacific Malibu Dev., 933 F.2d 724, 726-27 (9th Cir.1991), [***16]cert. denied,    U.S.   , 112 S.Ct. 1295, 117 L.Ed.2d 518 (1992) (Two dismissal rule operated as an adjudication on the merits where the plaintiff had previously voluntarily dismissed, by notice of dismissal, two actions against the defendant); Sutton Place Dev. Co. v. Abacus Mortgage Investment Company, 826 F.2d 637, 640 (7th Cir.1987) (Two dismissal rule inapplicable where second dismissal was by court order, on motion of plaintiff, rather than by notice); Poloron Product, Inc. v. Lybrand & Ross Bros. & Montgomery, 534 F.2d 1012, 1017 (7th Cir.1976) ("Filing of a notice of dismissal preceded by a dismissal by stipulation knowingly consented to by all parties did not activate the 'two dismissal' bar against bringing an action based on or including the same action."); American [*280] Cyanamid v. McGhee, 317 F.2d 295, 297 (5th Cir.1963) ("A voluntary dismissal of action by order of court after initial voluntary dismissal of same suit by notice in other court did not operate as an 'adjudication on the merits and did not bar the filing of third[***17] suit in federal court'"); Island Stevedoring, Inc. v. Barge CCBI, 129 F.R.D. 430, 432 (D.Puerto Rico 1990) (Two prior dismissals did not preclude plaintiff's filing of third complaint where the second dismissal was by court order, which was subsequently amended to specify that dismissal was without prejudice).

   States with "two dismissal" rules have rendered a similar interpretation. See e.g. Variety Children's Hospital v. Mt. Sinai Hospital of Greater Miami, Inc., 448 So.2d 546 (Fla.Dist.Ct.App.1984) ("Voluntary dismissals of two prior actions, one seeking indemnity and contribution and the other seeking declaratory relief to establish insurance coverage, barred third lawsuit arising out of same factual background under the two dismissal rule"); Hershiser v. BOS Corp., 69 Ohio App.3d 186, 590 N.E.2d 323 (1990) ("Dismissal by stipulation, with all counsel participating, did not operate to invoke 'two dismissal'; rule, even if the dismissed declaratory judgment and personal injury actions were based on or included the same claim"); State, County of St. Louis v. Marchand, 401 N.W.2d 449 (Minn.App.1987)[***18] (A third paternity action in which the children's mother was a beneficially interested plaintiff was not subject to being dismissed with prejudice on motion of the defendant, the alleged father, under the "two dismissal" rule, where neither the state, the county, nor the children had dismissed the action more than once, and the mother, though participating in the first action as a plaintiff in her own right, purported to serve only as a representative of the children in the second.); City of Raleigh v. College Campus Apartments, Inc., 94 N.C.App. 280, 380 S.E.2d 163 (1989), aff'd, 326 N.C. 360, 388 S.E.2d 768 (1990) ("Plaintiff's second voluntary dismissal operated as an adjudication on the merits, and summary judgment was properly granted for defendant where both of plaintiff's dismissals were obtained by plaintiff filing [*281] notice of dismissal pursuant to N.C.G.S. § 1A-1, Rule 41(a)(1)(i) and were not by stipulation or order of court . . . .").

   Citing Royston v. Horner, 75 Md. 557, 24 A. 25 (1892), the appellee contends that an order dismissing[***19] an action bars another action for the same cause.  In Royston, we held that when the trial court has determined that the complainant has no rights to the relief prayed in the bill, a decree of dismissal operates as a bar to another cause of action seeking the same relief. 75 Md. at 565, 24 A. at 27. The Circuit Court for Anne Arundel County did not find that the State of New Jersey had no right to the relief it sought, i.e. child support payments; rather, it dismissed the action because Ms. Lennon refused to take a blood test. Therefore, the court's order settled no rights, nor was it intended to be a final adjudication, on the merits.

   [**1061] The appellee also argues that when the order of dismissal is silent the only logical effect which should flow from the order are [sic] those consistent with the basic "'notice of dismissal.'" That point is also without merit.  Rule 2-506(c) is clear and, thus, dispositive.  A dismissal pursuant to an order of dismissal which does not otherwise specify its effect is without prejudice.  See Scheve, 328 Md. at 377, 614 A.2d at 589.

   Prior to the[***20] present proceedings being filed, there had been two prior proceedings involving the appellee's paternity of Ms. Lennon's child and his responsibility to provide support.  Neither was terminated by notice of dismissal.  Both were dismissed by order of court, albeit, the order of dismissal in the first Anne Arundel County action issued on motion of the appellant.  Because neither of the prior actions, including the appellant's, was dismissed by notice of dismissal, Rule 2-506(c) simply does not apply.  To constitute an adjudication of the merits, Rule 2-506(c) requires that a notice of dismissal be filed by a plaintiff "who has previously dismissed . . . an action based on or including the same claim." Consequently, it makes no difference whether, as the appellee argues, Ms. Lennon is the real party in interest or not.  The terms of Rule [*282] 2-506(c) simply have not been met so as to justify a holding that there has been an adjudication of the merits.

   The appellee in effect asks this Court to change the meaning of Rule 2-506 and, as changed, to apply it to the case sub judice.  We have recently rejected a similar request.  See WSSC v. CAE-Link, 330 Md. 115, 140, 622 A.2d 745, 757 (1993).[***21] "[W]hen a party contends that a court should disregard the express language of a carefully-drawn rule of procedure, that party bears a heavy burden of showing that departure from the plain language is justified." Sutton Place Dev. Co., 826 F.2d at 640. Furthermore, "[t]hat burden is especially heavy in the case of the 'two dismissal' rule because, by disregarding the plain wording of the rule, the court also disregards the over-arching policy concern . . . in favor of a decision on the merits." Id. The appellee has failed to point to any authority for abandoning the application of Rule 2-506(c) or presented any reasonable alternative interpretation of the rule; thus, he has failed to carry the burden of showing that departure from the language of the rule is justified.

   JUDGMENT REVERSED; CASE REMANDED TO THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY WITH DIRECTIONS TO REINSTATE THE ACTION FILED BY STATE OF NEW JERSEY; COSTS TO BE PAID BY THE APPELLEE. 

Winfield M. KELLY, Jr., Secretary of State et al. v. VOTEKNOW COALITION OF MARYLAND, INC. et al. 
No. 54, September Term, 1992
 
COURT OF APPEALS OF MARYLAND
 
331 Md. 164; 626 A.2d 959; 1993 Md. LEXIS 98

 June  28, 1993, Decided

   SUBSEQUENT HISTORY: Original Opinion of August 19, 1992, Reported at: 1992 Md. LEXIS 134.

PRIOR HISTORY: [***1]

   Appeal from the Circuit Court for  Anne Arundel  County pursuant to certiorari to Court of Special Appeals. Bruce C. Williams, JUDGE

CORE TERMS:  ballot, abortion, voter, misleading, notification, parental, referendum, general election, referral, repeal, woman, declaratory judgment, pregnancy, rezoning, clarity, understandable language, understandable, immunity, certify, fetus, charter, constitutional amendment, condensed, intelligently, accurately, petitioned, summarize, unmarried, concisely, exceeded

COUNSEL: Ralph S. Tyler, Deputy Atty. Gen., Baltimore, for petitioners.

   Joseph A. Schwartz, III, Baltimore, for respondents.

JUDGES: Murphy, C.J., and Eldridge, Rodowsky, McAuliffe, Chasanow, Karwacki and Robert M. Bell, JJ.

OPINIONBY: ELDRIDGE

OPINION: [*165] [**961] ORDER

   Ch. 1 of the Acts of 1991, which was Senate Bill 162 of the 1991 legislative session, addressed the subject of abortion and revised statutory provisions relating to abortion. Ch. 1 was petitioned to referendum and is to be submitted to the voters of Maryland at the November 1992 general election, pursuant to Art. XVI of the Constitution of Maryland and Maryland Code (1957, 1990 Repl. Vol.), Art. 33, § 16-6.

   The Circuit Court for Anne Arundel County, by order of August 12, 1992, declared that the ballot title language of Ch. [*166] 1, certified by the Secretary of State of Maryland, was misleading because it did not provide "a concise, intelligible and understandable summary of the principal features of SB 162 . . . ." The circuit court's August 12, 1992, order also enjoined the defendants from using the certified[***2] ballot language at the November 1992 general election and directed the defendant Secretary of State of Maryland to certify new ballot language.

   For reasons to be stated in an opinion later to be filed, it is this 19th day of August 1992,

   ORDERED, by the Court of Appeals of Maryland, that the declaratory judgment and injunctive order of the Circuit Court for Anne Arundel County is reversed; and it is further

   ORDERED by the Court of Appeals of Maryland, that the case is remanded to the Circuit Court for Anne Arundel County with directions to enter the following declaratory judgment:
 
"The ballot title of Ch. 1 of the Acts of 1991, certified by the Secretary of State, is not misleading and does not violate either Art. XVI, § 5, of the Constitution of Maryland or Code (1957, 1990 Repl.Vol.), Art. 33, § 16-6.  The defendants are entitled to utilize the ballot title certified by the Secretary of State at the November 1992 general election."
 
And it is further

   ORDERED, by the Court of Appeals of Maryland, that the Circuit Court for Anne Arundel County shall enter an order denying the plaintiffs' request for an injunction.

   Costs to be paid by the plaintiffs.  Mandate to issue forthwith. [***3]

   ELDRIDGE, Judge.

   An enactment of the General Assembly, signed by the Governor as Ch. 1 of the Acts of 1991, was petitioned to [*167] referendum and scheduled to be submitted to the voters of the State in the November 1992 general election. The issue presented by this case is whether the ballot title language summarizing Ch. 1 of the Acts of 1991 was misleading. The Act addressed the subject of abortion and revised statutory provisions relating to abortion. Prior to the November 1992 general election, this Court issued an order which, inter alia, directed the Circuit Court for Anne Arundel County to enter the following declaratory judgment:
 
"The ballot title of Ch. 1 of the Acts of 1991, certified by the Secretary of State, is not misleading and does not violate either Art. XVI, § 5 of the Constitution of Maryland or Code (1957, 1990 Repl.Vol.), Art 33, § 16-6.  The defendants are entitled to utilize the ballot title certified by the Secretary of State at the November 1992 general election."
 
This opinion sets forth our reasons for so ordering.

   During the 1991 legislative session, the General Assembly passed and the Governor signed Senate Bill 162, which became Ch. [***4] 1 and which substantially revised Maryland statutes regarding abortion. The members of the Vote kNOw Coalition and others, pursuant to Art. XVI, § 1, of the Constitution of Maryland, exercised their right to petition Ch. 1 to referendum. n1

n1 Article XVI, § 1 provides:
 
"Reservation of power of referendum in people; article self-executing; additional legislation.

   (a) The people reserve to themselves power known as The Referendum, by petition to have submitted to the registered voters of the State, to approve or reject at the polls, any Act, or part of any Act of the General Assembly, if approved by the Governor, or, if passed by the General Assembly over the veto of the Governor;

   (b) The provisions of this Article shall be self-executing; provided that additional legislation in furtherance thereof and not in conflict therewith may be enacted."

   Article XVI of the Maryland Constitution and Maryland Code (1957, 1990 Repl.Vol.), Art. 33, § 16-6, set forth the procedures governing the referendum. Section 5(b) [***5] of Art. XVI provides in part as follows:
 
[*168] "All laws referred under the provisions of this Article shall be submitted separately on the ballots to the voters of the people, but if containing more than two hundred words, the full text shall not be printed on the official ballots, but the Secretary of State shall prepare and submit a ballot title of each such measure in such form as to present the purpose of said measure concisely and intelligently. The ballot title may be distinct from the legislative title, but in any case the legislative title shall be sufficient."
 
The Election Code, Art. 33, § 16-6(a), provides:
 
"Condensed statement and descriptive title.  -- The ballots shall contain a condensed statement in understandable language of every constitutional amendment or other question to be submitted to the vote of the people at any election.  It is sufficient in any case to print the legislative title, a brief summary of the contents or purpose of the proposed amendment or referendum unless the act proposing the constitutional amendment or other question specifically provides the title to be used.  The Secretary of State shall prepare and certify the form [***6] in which a constitutional amendment or question shall appear . . . . In the event the title of the bill, ordinance or resolution, as the case may be, is one hundred words or less, the title shall be sufficient.  In the event the title exceeds one hundred words, a summary of the title containing not in excess of one hundred [**962] words shall be prepared and certified to the boards."
 
The referred legislation exceeded 200 words, precluding the full text from being placed on the ballot. Art. XVI, § 5(b).  In addition, the legislative title exceeded 100 words, precluding its use.  Art. 33, § 16-6.  Consequently, the Secretary of State was required to summarize the legislation in 100 words or less.  Pursuant to his constitutional and statutory duty, the Secretary submitted the following 100 word ballot title:

   "Abortion Law Revision
 
"Revises Maryland's abortion law to prohibit state interference with woman's abortion decision before fetus is viable, or, under certain conditions, at any time and to provide [*169] certain exceptions to the requirement that a physician notify an unmarried minor's parent or guardian prior to minor's abortion; repeals pre-abortion information[***7] requirements about abortion alternatives; repeals some, and clarifies other, provisions related to abortion referrals; requires that abortions be performed by licensed physicians; provides good faith immunity under certain conditions to physicians performing abortions; authorizes state to adopt abortion regulations; repeals certain penalty and disciplinary provisions related to the performance of abortions."

   The plaintiffs in this case, the Vote kNOw Coalition and three women who signed the referendum petition, challenged this language in a complaint filed in the Circuit Court for Anne Arundel County on July 27, 1992.  The plaintiffs named as defendants Winfield M. Kelly, Jr., the Secretary of State, and Gene M. Raynor, Administrator of the State Administrative Board of Election Laws.  The plaintiffs charged that the language of the ballot title "miscasts and misrepresents the true nature and purpose of the referred law by reordering the elements of Senate Bill 162 in a manner which will have an undeniable psychological effect on the average voter and suggest a voting outcome from language which is neither neutral nor accurate . . . [and that] it uses vague, ambiguous and obtuse[***8] generalizations such as 'certain conditions' and 'certain exceptions' to obscure the actual scope and effect of Senate Bill 162 and disguise crucial elements of the referred legislation . . . ."

   The plaintiffs sought a declaration that the proposed language violated the constitutional and statutory standards.  They also sought an order enjoining the Administrator from placing the language on the ballot and directing the Secretary of State to reformulate the language to reflect the "order of the elements of the legislative title" and to make use of "objectively neutral and not politically charged language."

   The plaintiffs and the defendants filed cross motions for summary judgment. The defendants argued that the certified language "fairly and accurately conveys to Maryland voters [*170] the purpose of the legislation upon which they will be voting." The defendants noted that it was irrelevant whether the plaintiffs or any other person could produce a "better" ballot summary, stating that
 
"a hundred persons, whether lawyers or nonlawyers or Secretaries of State, could perhaps draft a hundred different ballot summaries, all of which might be meaningful and nonmisleading.  That[***9] possibility is, however, legally irrelevant for the constitutional responsibility for that task in this State rests with the Secretary of State."
 
Rather, according to the defendants, the trial court was required to determine whether the ballot language certified by the Secretary of State "'set forth, in understandable language the contents and purpose of the proposed referendum with that clarity and objectivity required to permit an average voter, in a meaningful manner, to exercise an intelligent choice.' Anne Arundel County v. McDonough, 277 Md. 271, 300[, 354 A.2d 788, 805] (1976)." The defendants urged the trial court to uphold the ballot summary in this case because it complied with the constitutional and statutory standards and was "comprehensive, accurate and understandable."

   The plaintiffs complained that the Secretary of State should not have rearranged [**963] the order of the elements of the legislation but should have tracked the order in which they appeared in the legislative title.  The only deviation from the order of the legislative title was the decision to move the summary of the portion of the legislation which[***10] essentially codified the Supreme Court's decision in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), from the middle to the beginning of the ballot title.  The plaintiffs also asserted that the "use of vague and ambiguous generalities . . . make it literally impossible for the average voter to discern the true nature, scope and effect of the referred measure." As examples of the latter, the plaintiffs pointed to the summary of the parental notification provision and objected to the fact that the specific exceptions to that provision were not articulated in the ballot title.  The plaintiffs claimed that the description of the changes made to the law relating to abortion referrals was too [*171] general.  The plaintiffs argued that the ballot language fell short of the constitutional and statutory standards and was misleading.

   On August 12, 1992, the circuit court declared that the ballot title language certified by the Secretary of State was misleading because it did not provide "a concise, intelligible and understandable summary of the principal features of SB 162 . . . ." The circuit court's order also[***11] enjoined the defendants from using the certified ballot language at the November 1992 general election and directed the defendant Secretary of State to certify new ballot language. In his statements from the bench, the circuit judge specified that the Secretary should follow the order in which the elements appeared in the legislative title and should articulate the exceptions to the parental notification provision. That day, the defendants noted an appeal to the Court of Special Appeals as well as an appeal to this Court.  They also filed a petition for a writ of certiorari which we granted. n2 As indicated at the beginning of this opinion, in an order dated August 19, 1992, we reversed the declaratory judgment and injunctive orders of the Circuit Court for Anne Arundel County and directed the circuit court to enter a new declaratory judgment upholding the validity of the ballot title. n3

n2 The defendants took a direct appeal to this Court based upon the provisions of Maryland Code (1957, 1990 Repl.Vol.), Art. 33, §§ 19-1 through 19-5.  These sections establish a statutory procedure governing certain cases relating to elections, and include a provision for an appeal to be directly taken to the Court of Appeals.  § 19-4(3)(i).  The defendants, unsure of whether the case was subject to direct appeal under these provisions, also filed a notice of appeal to the Court of Special Appeals and a certiorari petition in this Court, requesting that this Court assert jurisdiction in accordance with Code (1974, 1989 Repl.Vol.), §§ 12-201 through 12-203 of the Courts and Judicial Proceedings Article.  Because the defendants proceeded in a timely fashion under both procedures, and because we have jurisdiction under one or the other procedure, we need not decide which route was appropriate.

[***12] 

n3 We note that the referred measure was approved by the voters in the November 1992 general election.

   The standards to be applied to this case are clearly set forth in the Constitution and statutes.  The Secretary of State, [*172] when drafting a ballot title which is "a condensed statement in understandable language" of the referred measure, Art. 33, § 16-6, is required "to present the purpose of said measure concisely and intelligently," Art. XVI, § 5(b).  This Court in several cases has reviewed the applicable standards.  See Surratt v. Prince George's County, 320 Md. 439, 578 A.2d 745 (1990); Anne Arundel County v. McDonough, supra, 277 Md. 271, 354 A.2d 788; Morris v. Governor, 263 Md. 20, 281 A.2d 216 (1971); Lexington Park v. Robidoux, 218 Md. 195, 146 A.2d 184 (1958); Carr v. Hyattsville, 115 Md. 545, 81 A. 8 (1911). In Anne Arundel County v. McDonough, supra, 277 Md. at 296, 354 A.2d at 802-803,[***13] we stated:
 
"Where . . . the ballot question used is not the legislative title but a brief summary of the contents or purpose of the proposed act, the standard by which the question's validity will be judged, as with a legislative title, is whether the question posed, accurately and in a non-misleading manner, apprises the voters of the true [**964] nature of the legislation upon which they are voting."
 
The Secretary of State must certify language with the "clarity and objectivity required to permit an average voter, in a meaningful manner, to exercise an intelligent choice." McDonough, 277 Md. at 300, 354 A.2d at 805.

   The plaintiffs rely on both Surratt v. Prince George's County, supra, and Anne Arundel County v. McDonough, supra. In each case, this Court struck down ballot title language on the ground that it was misleading. Each case is readily distinguishable.

   In Surratt v. Prince George's County, supra, the ballot question presented to the voters of Prince George's County was whether [***14] they approved of a Charter amendment which would "provide that in all pending and future claims the County will only waive its immunity in those instances where its officers and employees are liable." 320 Md. at 448, 578 A.2d at 749. The Charter of Prince George's County, however, already provided that the County had waived its immunity "in actions sounding in tort for which its officers, agents and [*173]employees may be liable." Ibid. The real purpose of the charter amendment was "to effect a total repeal of the waiver of governmental immunity" in the event the Court of Appeals held invalid the County's attempt to limit its waiver to cases in which a county officer did not possess public official or any other sort of individual immunity, Surratt v. Prince George's County, supra, 320 Md. at 448, 444, 578 A.2d at 749, 747. Cf., Prince George's County v. Fitzhugh, 308 Md. 384, 519 A.2d 1285 (1987). In holding that the provision of the County charter was invalidly adopted, we stated that the ballot title "was misleading, and it was calculated[***15] to suggest to the voter that the charter amendment would have virtually no effect -- and certainly not the repeal of the waiver of immunity." Surratt, 320 Md. at 449, 578 A.2d at 750.

   The ballot title language at issue in this case does not attempt to deceive the voters about the true nature of the bill.  The ballot language clearly sets forth the primary purpose of the legislation, namely to prohibit State interference with a woman's right to terminate a pregnancy in most instances. It then summarizes in "understandable language" and with "reasonable clarity" the "actual scope and effect of the measure." Surratt, 320 Md. at 447, 578 A.2d at 749.

   Similarly, our decision to strike down the results of a referendum in Anne Arundel County v. McDonough, supra, does not support the plaintiffs' argument with respect to the ballot language at issue in this case.  In McDonough, the voters of Anne Arundel County were presented with Question D which asked them to vote for or against a referendum
 
"[t]o rezone certain parcels of land in the median strip, [***16] the west side of the southbound lane and the east side of the northbound lane of Route 3; and to rezone one parcel of land on the west side of Brockridge Road near Ellen Street; all parcels of which are in the Fourth Assessment District and which were rezoned by virtue of amendments to Bill No. 59-73." 277 Md. at 278, 354 A.2d at 792-793.
 
The "rezoning" sought to be accomplished by the referred measure, which was actually forty-one different amendments [*174] to a comprehensive county rezoning, was not disclosed by the ballot title language.  Although the County Board of Elections had certified that the voters should vote "for the amendments to the bill" or "against the amendments to the bill," the ballot question was followed only by two words "for" or "against." McDonough, 277 Md. at 278, 354 A.2d at 792-793. Consequently, the voters were asked to vote for or against the rezoning rather than for or against the amendments to the rezoning. Added to this confusion was the fact that the amendments would have accomplished numerous changes, none of which were even alluded to in the ballot [***17] language. Given this combination we concluded that the ballot language "did not present a clear, unambiguous and understandable statement of the full and complete nature of the issues. [**965] " McDonough, 277 Md. at 300, 354 A.2d at 805.

   The ballot language certified by the Secretary of State in this case is not obtuse and clearly conveys the purpose of the referred measure.  The language does not on its face generate any confusion about whether the entire bill enacted by the General Assembly or some portion thereof was petitioned to referendum. Within the constraints of a 100 word summary it gives considerable detail about the nature of the issues addressed by the measure.  It is neither deceptive, as was the case in Surratt v. Prince George's County, supra, nor vague as was the case in Anne Arundel County v. McDonough, supra.

   It should be emphasized that judicial review of the ballot title is limited to discerning whether the language certified "convey[s] with reasonable clarity the actual scope and effect of the measure." Surratt v. Prince George's County, supra, 320 Md. at 447, 578 A.2d at 749.[***18] We are not concerned with the question of whether this Court, the trial court, or any of the numerous advocates on either side of this issue, are capable of drafting better ballot language.  See Matter of Proposed Constitutional Amendment Under the Designation "Pregnancy," 757 P.2d 132, 137 (Colo.1988) ("[I]t is not the function of this court to rephrase the language of the summary and title to achieve the best possible statement of the intent of the amendment.  If the chosen language fairly [*175] summarizes the intent and the meaning of the proposed amendment, without arguing for or against its adoption, it is sufficient.")

   Turning to the plaintiffs' three specific complaints about the ballot language, we find utterly no merit in the plaintiffs' first argument that the ballot language must follow the order of the legislative title.  Nothing in the Constitution, the statutes, or our prior cases suggests that the ballot language need be in any particular order.  Rather, it is the substantive meaning of the language and the ability of the average voter to understand the referred measure that is at issue.  The legislative title often reflects the order[***19] of items presented in the bill.  These items are not necessarily in the order of importance but more frequently follow the alphabetical or numerical order of the code provisions which they amend.  A holding that this order is somehow mandatory could give rise to ballot language which minimizes the importance of the principal part of a referred measure because that part appears either in the middle or at the end of the legislative title.

   The Secretary of State summarized new § 20-209 of the Health-General Article, enacted by Ch. 1 of the Acts of 1991, at the beginning of the ballot title.  The initial language of the ballot title read as follows: "Revises Maryland's abortion law to prohibit state interference with woman's abortion decision before fetus is viable, or, under certain conditions, at any time." n4 The decision of the Secretary of State to set out first [*176] the main objective of the referred measure does not in any way render the ballot language misleading.

n4 Code (1982, 1990 Repl.Vol., 1992 Cum.Supp.), § 20-209(b) of the Health-General Article provides:
 
"State intervention -- Except as otherwise provided in this subtitle, the State may not interfere with the decision of a woman to terminate a pregnancy:

   (1) Before the fetus is viable; or

   (2) At any time during the woman's pregnancy, if:

   (i) the termination procedure is necessary to protect the life or health of the woman; or

   (ii) The fetus is affected by genetic defect or serious deformity or abnormality."

[***20]

   The plaintiffs' second argument involves the summary of the parental notification provision in the ballot title.  The plaintiffs argue that the ballot language emphasizes a preexisting statutory requirement and fails to explain the new exceptions to that requirement.  The parental notification summary, accounting for twenty-two of the one hundred words in the ballot title, reads, "and to provide certain exceptions to the requirement that a physician notify an unmarried minor's parent or guardian prior to minor's abortion."

   The plaintiffs' contention that the ballot language emphasizes a pre-existing requirement [**966] is not entirely accurate.  The Attorney General in 1985 opined that, in light of Supreme Court decisions following the opinion in Roe v. Wade, supra, the Maryland parental notification statute was unconstitutional. 70 Att'y Gen.Ops. 3 (1985). n5 Thus, regardless of whether the Attorney General's opinion was correct or not, the General Assembly believed that it was necessary to provide a new parental notification requirement in the amended abortion statutes.  By enacting a [***21] parental notification requirement, the legislature imposed an obligation, which has not been questioned by the Attorney General, upon physicians to notify a minor's parents prior to performing an abortion. That obligation probably did not preexist, and therefore the Secretary of State was not misleading voters by saying that the referred measure involved a parental notification requirement.

n5 This conclusion was reaffirmed by the Attorney General on August 30, 1990. See 75 Att'y Gen.Ops.    (Op. No. 90-041) (1990).

   Moreover, the legislative title relating to the parental notification matter contained fifty-one words as follows: "authorizing a physician to perform an abortion on an unmarried minor without notice to a parent or guardian of the minor if, in the professional judgment of the physician, the minor is mature and capable of giving informed consent or notice would not be in the best interests of the minor." The entire legislative title, [*177] however, exceeded three hundred words.  The Secretary of [***22] State was constrained by a maximum 100 words and, therefore, was not able to enumerate every detail of every portion of the legislation.  The language used by the Secretary of State accurately informed the voters of the proposed change in the law because it stated that the referred measure creates certain exceptions to the general requirement of parental notification. The enumeration of these exceptions may have required the Secretary to eliminate or shorten a summary of another item also being changed by the referred measure.  The plaintiffs, or perhaps another group, may then have claimed that the shortened or eliminated provisions rendered the ballot title misleading. By indicating that the legislation establishes exceptions to the parental notification provision, the ballot language "concisely and intelligently" summarized that portion of the legislation.

   The plaintiffs third argument involved the ballot language relating to abortion referral. The pertinent ballot language stated as follows: "repeals some, and clarifies other, provisions related to abortion referral." The language in the legislative title describing this section states: "repealing certain provisions of law related[***23] to abortion referral services; clarifying a provision of law related to referral services." According to the Constitution and the Election Code, the legislative title is "sufficient." Art. XVI, § 5(b); Art. 33, § 16-6.  With respect to these provisions, the legislative title provides no greater specificity than the ballot title.  Moreover, the summary, given the stringent wording constraints, adequately advises voters that changes were being made by the referred measure to the law governing abortion referral services.  This portion of the title was not misleading.

   In conclusion, we hold that the ballot title certified by the Secretary of State complied with the requirements of the Constitution and the Election Code. 

Michael B. MONIAS v. Glenna ENDAL et vir. 
No. 53, September Term, 1992
 
COURT OF APPEALS OF MARYLAND
 
330 Md. 274; 623 A.2d 656; 1993 Md. LEXIS 59

 April  27, 1993  
 April  27, 1993, Filed

   PRIOR HISTORY: [***1]

   Certiorari to Circuit Court for  Anne Arundel  County. H. Chester Goudy, JUDGE

DISPOSITION: JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED.  COSTS IN THE COURT OF SPECIAL APPEALS AND IN THIS COURT TO BE PAID THREE-FOURTHS BY PETITIONER AND ONE-FOURTH BY RESPONDENT.

CORE TERMS:  life expectancy, earning, premature, shortened, loss-of-services, diagnosed, cancer, loss-of-earnings, wrongful death action, probable, Law of Torts, loss of earning, household, tort victim, parental, personal injury action, future earnings, loss of income, consortium, recoverable, compensate, loss of consortium, survival, biopsy, lump, tortfeasor, shortening, decedent, marital, entity

COUNSEL: William A. Ehrmantraut and David A. Roling (Wharton, Levin, Ehrmantraut, Klein & Nash, all on brief), Annapolis, for petitioner.

   Steven Nemeroff (Wortman, Nemeroff & Bulitt, all on brief), College Park, for respondent.

JUDGES: Eldridge, Rodowsky, McAuliffe, Chasanow, Karwacki, and Robert M. Bell, JJ., and Charles E. Orth, Jr., Judge of the Court of Appeals (retired), Specially Assigned.

OPINIONBY: CHASANOW

OPINION: [*276] [**657] The instant case raises issues of how damages should be calculated for loss of household services and loss of wages where the plaintiff's normal life expectancy was reduced considerably as the result of defendant's medical malpractice.  Glenna Endal and her husband, Andrew, filed a medical malpractice action against Ms. Endal's gynecologist, Dr. Michael Monias. Specifically, the Endals alleged that Dr. Monias was negligent in failing to diagnose and treat a breast cancer in Ms. Endal.  They further alleged that had the cancer [***2] been properly diagnosed and treated, there was an 85-90% chance that it would have been cured, but that because it was not properly diagnosed and treated, the cancer spread to the point that Ms. Endal's chances of surviving beyond November, 1992 were only 20%.

   Evidence presented at trial established that on August 2, 1986, Glenna Endal, a 34 year-old married school teacher and mother of three children, discovered a small lump in her right breast.  Six days later, she went to her gynecologist, [*277]Dr. Michael Monias, and was assured the lump was "fibrocystic breast disease," and there was "nothing to worry about." Dr. Monias ordered a mammogram, but did not order a biopsy. Ms. Endal was instructed to return in six months.  Six months later, as instructed, Ms. Endal returned to Dr. Monias again complaining of the lump, again a mammogram was ordered, but not a biopsy, and again Ms. Endal was assured there was nothing to worry about.  Approximately eight months after her second visit, fourteen months after her first complaint, Ms. Endal returned to Dr. Monias still complaining about the lump. Dr. Monias then referred Ms. Endal to a specialist who performed a biopsy which revealed [***3]a malignant tumor.  A lumpectomy was also performed which revealed the cancer had metastasized and was now in an advanced stage.  There was ample testimony supporting the jury's finding that Dr. Monias was negligent in ordering only a mammogram and in failing to perform a needle biopsy or various other diagnostic tests upon Ms. Endal's visit in August, 1986.

   According to expert medical testimony, if the breast cancer had been properly diagnosed in August, 1986, Ms. Endal would have had an 85-90% probability of survival and a normal life expectancy. If properly diagnosed, she could have been successfully treated with a lumpectomy and radiation treatment.  There was testimony that as a proximate result of the negligence of Dr. Monias, the cancer metastasized and spread to eleven lymph nodes.  Consequently, the experts testified, Ms. Endal had only a 20% chance of survival beyond November, 1992.

   The trial judge, Goudy, J., submitted the case to the jury on written issues. Out of an overabundance of caution, the judge divided the elements of damages into damages before November, 1992, which was the statistically probable date of Ms. Endal's premature death, and damages after November, [***4] 1992, which were called "post premature death" damages. n1 [*278] In the latter [**658]category were (1) loss of income for the period between Ms. Endal's probable date of death from cancer to her probable retirement date at age 65 had her cancer been diagnosed and treated, and (2) loss of services to the children from Ms. Endal's probable date of death until the youngest child reached age 18. 

n1 Dr. Monias objected to this instruction, but he acknowledges that the statistically probable date of Ms. Endal's premature death might have some relevance because, although there can be no recovery for reduced life expectancy, there can be recovery for the mental anguish caused by knowledge that one has a reduced life expectancy. Rhone v. Fisher, 224 Md. 223, 231-32, 167 A.2d 773, 778 (1961) (damages may not be recovered for shortening of life, but evidence relating to shortening of life may be considered for its bearing on the pain, suffering, and mental anguish of the plaintiff).

   Issues involving the court's instruction in the instant case that were decided by the Court of Special Appeals in its unreported opinion are not encompassed in this Court's grant of certiorari.  We in no way suggest approval of the splitting of damages into pre and post premature death damages.

[***5]

   A jury found Dr. Monias was negligent and awarded damages using an "Issue Sheet" as follows:
 
"1. The medical expenses incurred in the past -- $28,682.00;
 
2. The medical expenses reasonably probable to be incurred in the future -- $125,000;
 
3. The "Noneconomic Damages" sustained in the past and reasonably probable to be sustained in the future.  All damages which you find for pain, suffering, inconvenience, physical impairment, disfigurement, past and future -- $200,000; 
 
4. Loss of income in past -- $0.00;
 
5. Loss of income in future to date of premature death -- $33,000;
 
6. Loss of Consortium -- $75,000;
 
POST PREMATURE DEATH:
 
7. Loss of income or earnings -- $250,000;
 
8. Loss of household service to children -- $200,000"

   [*279] Dr. Monias appealed the judgment to the Court of Special Appeals. In an unreported opinion, the intermediate appellate court affirmed the jury's determination of liability and affirmed all damage awards except for the $200,000 "post premature death" damage award for the loss of Ms. Endal's household services to her children.

   We granted certiorari to review the damage awards for loss of income [***6]and loss of services.  We shall affirm the decision of the Court of Special Appeals.

   I. LOSS OF INCOME

   The jury awarded Ms. Endal $33,000 for future loss of income up to the statistically expected date of Ms. Endal's premature death, which had an 80% probability of being no later than November, 1992.  The jury also awarded $250,000 for loss of income after November, 1992.  There was evidence that, had her cancer been diagnosed and successfully treated, Ms. Endal would have worked until age 65.  There was also testimony from an economist that Ms. Endal's earnings from November, 1992 until her 65th birthday, reduced to present value, would have been in excess of $250,000.  Dr. Monias does not contest the $33,000 loss of future earnings award, but he contends that the $250,000 "post premature death" loss of future earnings award was improper and was, in effect, a wrongful death award in a personal injury action.

   We begin our discussion by noting that we are dealing with loss of earnings recoverable in a personal injury action. We are not concerned with loss of earnings in a survival action. n2 We are also not concerned with loss of earnings in a wrongful death action, although [***7] plaintiff's recovery in this action will obviously preclude a subsequent [*280] claim for loss of support in a wrongful death action for at least the same years included in the lost earnings award. n3

n2 A decedent's lost future earnings are not recoverable in a survival action in Maryland.  For damages that are recoverable in a survival action, see Stewart v. United Elec. Light & Power Co., 104 Md. 332, 343, 65 A. 49, 53 (1906) and Rhone, 224 Md. at 229-30, 167 A.2d at 777.

n3 Loss-of-earnings damages recovered in a personal injury action would obviously preclude duplicative recovery of the same damages in a wrongful death action. In Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573, 94 S.Ct. 806, 39 L.Ed.2d 9 (1974), a longshoreman who had sued for and recovered damages for his personal injuries died as a result of the injuries.  His widow brought a wrongful death action. The Supreme Court held that the widow could not recover for her loss of support to the extent that her damages would overlap the award for loss of earnings in her husband's prior suit.  Id. at 592, 94 S.Ct. at 818, 39 L.Ed.2d at 25. The Court stated "the tortfeasor should not be required to make further compensation in a subsequent wrongful-death suit for any portion of previously paid wages" and "application of familiar principles of collateral estoppel" would eliminate any problem of double recovery.  Id.; see also Restatement (Second) of Judgments § 46(2)(b) (1982).

   This case does not present, and so we do not address, the question of whether Maryland follows the majority of jurisdictions which hold that a prior personal injury judgment obtained by the decedent completely precludes any subsequent wrongful death action based on the same negligent conduct.  4 F. Harper et al., The Law of Torts § 24.6, at 471-72 & n. 1 (2d ed. 1986); W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 127, at 955 & n. 18 (5th ed. 1984); cf. Melitch v. United Rwys. & E. Co., 121 Md. 457, 462-63, 88 A. 229, 231 (1913) (held no action would lie under the former Wrongful Death Act, Article 67, § 1 of the Code of 1904, because decedent had executed a valid release of all claims he "might or could possibly have" on account of his injuries).

[***8]

   [**659] Dr. Monias contends that future loss of wages is limited to the plaintiff's actual (shortened) life expectancy rather than the plaintiff's normal life expectancy had the tort not occurred.  We reject his contention.  In an action for personal injuries, a plaintiff may recover for loss of future earnings which will reasonably and probably result from the tort.  Adams v. Benson, 208 Md. 261, 271, 117 A.2d 881, 885 (1955). We do not discard this fundamental rule of damages where the defendant's tort shortens the plaintiff's life expectancy.

   The precise issue in the instant case was left open in Rhone v. Fisher, 224 Md. 223, 231-32, 167 A.2d 773, 779 (1961), where we held that generally a plaintiff is not entitled to recover damages for the "lost years" themselves [*281]where the defendant's tort shortened the plaintiff's life expectancy. We noted in Rhone that the plaintiff failed to raise the issue of loss of earnings for the "lost years" and so that aspect of damages was not before the Court.  Id. at 232, 167 A.2d at 779. We [***9] shall reach this issue in the instant case.  We hold, in accord with the majority of other jurisdictions, that the proper measure of lost earnings damages in a personal injury action for a plaintiff whose life expectancy is reduced by the defendant's negligence is the plaintiff's loss of earnings based on the plaintiff's life expectancy had the tortious conduct not occurred, rather than loss of earnings based on the plaintiff's post-tort shortened life expectancy. "If the injury shortens plaintiff's life expectancy, the weight of American authority nevertheless computes future earning loss on the basis of the life expectancy plaintiff would have had without the injury." 4 F. Harper et al., The Law of Torts § 25.8, at 552 n. 9 (2d ed. 1986) and cases cited therein; Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573, 595, 94 S.Ct. 806, 819, 39 L.Ed.2d 9, 26 (1974) (holding that, "[u]nder the prevailing American rule, a tort victim suing for damages for permanent injuries is permitted to base his recovery 'on his prospective earnings for the balance of his life expectancy at the time of his injury undiminished by any shortening [***10]  of that expectancy as a result of the injury'" (quoting 2 F. Harper & F. James, The Law of Torts § 24.6, at 1293-94 (1956) (emphasis in original)). n4

n4 We should note that we are dealing with future loss-of-earnings damages, rather than future loss-of-earning-capacity damages.  There is a distinction between loss of earnings and loss of earning capacity.  See 4 F. Harper et al., The Law of Torts § 25.8, at 548-57 (2d ed. 1986); Id. at 549-50 ("A person is entitled to compensation for the lost capacity to earn, whether he would have chosen to exercise it or not." (Emphasis in original, footnote omitted.)); 2 M. Minzer et al., Damages in Tort Actions § 10.22[2], at 10-30 to 10-31 (1989) ("[M]ost courts which have discussed the subject have held that it is not necessary to show either the plaintiff's earnings prior to the injury or decrease in earnings after the injury in order to establish the fact of loss of earning capacity." (footnotes omitted)); see also D. Dobbs, Remedies § 8.1, at 540-41 (1973) (injured adult or child may recover for diminished earning capacity even though the person never worked and never intended to work).  While our holding only concerns future loss of earnings, we note that other authorities have permitted recovery for future loss of earning capacity during the lost years.  For example, see the Restatement (Second) of Torts § 924, at 525-26 (1979), comment (d).  See also Comment, Compensation for Negligently Shortened Life Expectancy, 29 Md.L.Rev. 24, 34-35 (1969) (concluding that, where tortfeasor's act results in diminution of plaintiff's life expectancy, "recovery could be had for the loss of earning capacity sustained during the years never to be lived") (emphasis in original); Burke v. United States, 605 F.Supp. 981 (D.Md.1985). In Burke, a case decided under Maryland law, the plaintiff brought a personal injury action to recover damages, including future loss of earning capacity, as the result of the defendant's failure to timely and properly diagnose her breast cancer. The medical experts agreed that Mrs. Burke, although clinically asymptomatic at the time of trial, had less than a 10% likelihood of surviving ten years.  The medical experts also opined that had the defendant properly diagnosed Ms. Burke's condition, she would have had a 90% chance of survival with a normal life span without recurrence of cancer. Based upon these facts, the court in Burke held that,
 
"the plaintiff has a right to recover in this case for her loss of earning capacity, if any, which has been caused by the wrongful acts of the defendant for the period of time from the injury to the expiration of her work life expectancy as it would have existed immediately prior to the time of the injury." (Emphasis added).
 
Id. at 989; Cf. Rhone, 224 Md. at 233, 167 A.2d at 779.

[***11]

   [*282] [**660] Damages for future loss of earnings must be based on the victim's life expectancy absent the tort rather than on the shortened life expectancy resulting from the tort.  We will not permit the tortfeasor to reduce liability for the victim's loss of earnings by reducing the victim's life expectancy.

   In the instant case, the trial judge separated the future loss-of-earnings damages into (1) future loss of earnings up to November, 1992, and (2) future loss of earnings from November, 1992 to age 65 when Ms. Endal would have retired based on her pre-injury life expectancy. The combination of both awards gave Ms. Endal what she is entitled to -- her loss of future earnings based on her normal life expectancy had she been properly diagnosed and treated.

   [*283] II. LOSS OF SERVICES

   The loss-of-services damages in the instant case, like the loss-of-earnings damages, were subdivided into separate awards for pre and post "premature death" damages.  Loss-of-services damages for the period before Ms. Endal's probable premature death were apparently included in either Ms. Endal's $200,000 "noneconomic damages" award or the Endals' $75,000 loss of consortium award. n5 The[***12] validity of these two awards is not in issue.  The loss-of-services award that is at issue in the instant case is the "post premature death" award of $200,000 for "loss of household services to children." The Court of Special Appeals vacated this award, and we granted Ms. Endal's petition for certiorari to review this award.  We shall affirm the intermediate appellate court.

n5 Consortium damages are damages suffered by the marital entity. Deems v. Western Md. Ry. Co., 247 Md. 95, 114-15, 231 A.2d 514, 525 (1967). The trial judge, without objection, properly instructed the jury that "[l]oss of consortium [is] . . . only to be considered during the joint lives of the parties.  Those damages would cease at the death of either party." The loss-of-consortium claim, like the marital entity, cannot extend beyond the actual life of either marital partner.

   In Rhone v. Fisher, 224 Md. at 230-31, 167 A.2d at 778, this Court held that, [***13] as a general rule, a plaintiff cannot recover damages for the "lost years" of shortened life expectancy caused by a defendant's negligence.  We did, however, acknowledge that there might be two potential categories of recoverable damages relating to "lost years" of shortened life expectancy. The first category recognized in Rhone was mental suffering resulting from knowledge of the shortened of life expectancy. Id. In Rhone, we upheld a jury's award that included such damages.  The second potentially permissible form of damages related to the "lost years" identified in Rhone was "lost earnings during the lost years," id. at 232, 167 A.2d at 779; however, that issue was not decided in Rhone because it was not preserved for appeal.  It is this second category of damages, lost earnings for lost years, that we have approved in [*284] the instant case, supra.  Rhone recognized only these two elements of damages as potentially permissible forms of damages related to the "lost years" of shortened life expectancy. The Endals, in essence, ask us to recognize an additional category -- loss of services that the tort [***14] victim will not be able to provide to her family because of her shortened life expectancy. We decline to further expand Rhone to permit recovery for loss of services during the "lost years" of a plaintiff's shortened life expectancy. Ms. Endal contends that we should treat loss-of-services [**661] damages the same as loss-of-earnings damages, and thus allow loss-of-services damages for the "lost years" of shortened life expectancy. The Court of Special Appeals did not agree, nor do we.  The Maryland cases Ms. Endal cites to support this argument clearly held that injured persons in personal injury actions are entitled to recover pecuniary damages for impairment of their ability to perform household duties, but none of these cases addresses whether, let alone holds that, loss-of-services damages should be awarded during the "lost years" of shortened life expectancy. Instead, they all concern temporary or permanent impairment without any discussion of the plaintiff's life expectancy. See, e.g., Straughan v. Tsouvalos, 246 Md. 242, 228 A.2d 300 (1967); Hughes v. Carter, 236 Md. 484, 204 A.2d 566 (1964);[***15] Adams v. Benson, 208 Md. 261, 117 A.2d 881 (1955). The same can be said for the out-of-state authorities and treatises on which Ms. Endal relies.

   Further, the case for recognizing loss-of-services damages related to the "lost years" is not as compelling as the case for recognizing loss-of-earnings damages related to those years.  Loss-of-earnings damages are to compensate a tort victim for income the victim will not receive because of the tort. Loss-of-services damages, on the other hand, are to compensate a tort victim for services the victim will not be able to provide because of the tort.  In the instant case the "post premature death" loss-of-earnings damages were to compensate Ms. Endal for money that she will not receive because of her untimely death.  The "post premature [*285] death" loss-of-services damages were to compensate for services Ms. Endal will not be able to perform for her family because of her untimely death.  Obviously Ms. Endal will have no need for her own services following her premature death; these loss-of-services damages were to compensate Ms. Endal's family. n6 Damages for loss of services to [***16] family members, if recoverable at all, are properly pursued in a wrongful death action. We find no justification for a further extension of Rhone, and we hold that a tort victim in a personal injury suit is not entitled to loss-of-services damages for the period of the "lost years" of shortened life expectancy.

n6 We recognize that not every loss-of-services action will be for the benefit of a tort victim's family.  Tort victims may also seek damages for loss of services they would have provided for themselves absent the injury.  Loss of such services that would have been provided during the "lost years" should not be compensable, as the victim ought not be reimbursed for services never to be performed and never to be needed because of the victim's premature death.

   We also note that the award in the instant case for "loss of household services to children" is similar to a child's claim for "loss of parental consortium." A few jurisdictions have recognized a loss of consortium damage claim by minor children for injuries[***17] to a parent.  See W. Page Keeton et al., Prosser and Keeton on The Law of Torts § 125, at 935-36 (5th ed. 1984); S.G. Ridgeway, Loss of Consortium and Loss of Services Actions: A Legacy of Separate Spheres, 50 Mont.L.Rev. 349, 349 & n. 4 (1989). Maryland, however, has not recognized such a claim for children except in the context of a wrongful death action. We are not persuaded that this Court should further expand tort damages to include such loss-of-consortium type damages for a minor child whose parent is severely injured but not killed.  See Gaver v. Harrant, 316 Md. 17, 28-32, 557 A.2d 210, 216-18 (1989) (discussing why Maryland has not recognized a damage claim for loss of parental society and affection).

   [*286] Ms. Endal also argues that in light of Maryland's recognition of a limited claim for loss of the economic value of a child's services, see Maryland Code (1984, 1991 Repl.Vol.), Family Law Article, § 5-206; Hudson v. Hudson, 226 Md. 521, 528, 174 A.2d 339, 342 (1961), we should recognize a reciprocal loss of parental services claim[***18] on behalf of minor children.  We also decline this invitation to further expand tort damages.  For the same reasons we gave in Gaver for not recognizing children's loss of parental consortium claims, we also decline to recognize loss of parental service claims.  If such a new cause of action is to be recognized, the legislature should do so [**662] after weighing such factors as the benefits of such a new cause of action, the probable increase in insurance costs, and the increased cost of litigation should children be made parties to their parents' tort suits.  What we said in Gaver is equally applicable in the instant case:

   "We, of course, are not unmindful of the importance of the parent-child relationship, nor of the magnitude of loss suffered by a child when a parent is seriously injured.  We conclude, however, that adoption of the proposed cause of action is not compelled by changing circumstances nor by a pressing societal need."
 
Gaver, 316 Md. at 33, 557 A.2d at 218.

    In summary, in tort actions where a family member is injured, the marital entity has a claim for damages for loss of a spouse's consortium, but parents [***19]and children do not have a claim for loss of each other's consortium. Parents have a limited common law claim for the economic value of the loss of an injured child's services, but children have no reciprocal claim for loss of an injured parent's services.  A tort victim's loss of earnings damages are based on pre-tort life expectancy, but a tort victim's loss-of-services damages are based on actual post-tort life expectancy. Arguments can no doubt be made for expanding and equalizing damages, particularly for parent-child damage claims. Such expansion entails a host of public policy concerns, including potential for increasing insurance costs, [*287] adding to litigation expenses by making children parties to a parent's tort action, as well as the uncertainty and remoteness of such damages.  The task of balancing these concerns can best be undertaken by the General Assembly, rather than by this Court.

   JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED.  COSTS IN THE COURT OF SPECIAL APPEALS AND IN THIS COURT TO BE PAID THREE-FOURTHS BY PETITIONER AND ONE-FOURTH BY RESPONDENT. 

ANNE ARUNDEL COUNTY, Maryland v. HARTFORD ACCIDENT ANDINDEMNITY COMPANY 
No. 118, September Term, 1992
 
Court of Appeals of Maryland
 
329 Md. 677; 621 A.2d 427; 1993 Md. LEXIS 39

 March  24, 1993     March  24, 1993, Filed

   PRIOR HISTORY: [***1]

   Appeal from the Circuit Court for  Anne Arundel  County pursuant to certiorari to Court of Special Appeals. Martin A. Wolff, JUDGE

DISPOSITION: JUDGMENTS OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AFFIRMED WITH COSTS.

CORE TERMS:  restitution, insurer, public policy, third-party, payor, deductible, rider, reimbursement, disputed, fully compensated, contractual, recovered, insured, premium, surety, invalid, indemnity, probation, payee, public interest, public good, invalidate, ordering, horse, payment of restitution, common sense, compensate, pronounce, obligee, legally enforceable

COUNSEL: David A. Plymyer, Deputy County Atty. (Judson P. Garrett, Jr., Anne Arundel County Atty., and John F. Breads, Jr., Asst. County Atty., all on brief), Annapolis, for appellant.

   William K. Dove, II, on brief, Fairfax, Virginia, for appellee.

JUDGES: Eldridge, Rodowsky, McAuliffe, Chasanow, Karwacki, Robert M. Bell and Charles E. Orth, Jr., Judge of the Court of Appeals (Retired, Specially Assigned), JJ.

OPINIONBY: ORTH

OPINION: [*679] [**428]

   For a decade James G. Lowe was employed by Anne Arundel County as the Superintendent of Downs Park, owned by the County.  He took advantage of his position by stealing $88,286 of County funds.  He was duly charged, and at trial in the Circuit Court for Anne Arundel County he entered a plea of guilty of felony theft.  He was sentenced to imprisonment for a term of five years. The sentence was suspended, and he was placed on probation for five years.  One of the conditions of probation was that he make restitution to Anne Arundel County in the amount of $25,000. [***2] Although the probation order is not included in the record before us, it appears that Lowe was to make monthly payments to the Division of Parole and Probation to be forwarded to the victim, Anne Arundel County.

   I

   Anne Arundel County was the insured or obligee under a bond issued by the Hartford Accident and Indemnity Company (the insurer or surety) in the penalty of $1,000,000 which covered Lowe's thievery.  The bond included a rider with a "Deductible Amount" of $25,000, so that the insurer was liable only for a loss in excess of that amount and "then for such excess only, but in no event for more than the [$1,000,000 indemnity]." Paragraph 1.  Paragraph 2 of the rider provided, in relevant part, that, if the insured suffers a loss within the indemnity amount, "all recoveries made after payment by the Surety of loss covered by this bond"
 
[*680] shall be applied first in reimbursement of the Surety and thereafter in reimbursement of the Obligee or insured for that part of such loss within such Deductible Amount.
 
The record contains an affidavit by the prosecutor in the criminal cause in which he stated:

   Per my discussions with the representatives of the County, and[***3] the Court, the restitution figure represented the amount of the deductible under the County's policy with its insurer. Accordingly, the restitution figure was designed to compensate the County for the amount not actually paid to it by its insurer.
 
Honoring the bond, the insurer paid the County $63,286, the amount of the loss less the $25,000 deductible.

   Thereafter, counsel for the insurer wrote the Assistant County Attorney, enclosing a copy of the deductible rider. Counsel for the insurer pointed out:

   As you can see, paragraph two of said Rider provides that, "if there be no excess loss, any such recoveries shall be applied first in reimbursement of the Surety and thereafter in reimbursement of the Obligee or Insured for that part of such loss within such Deductible Amount." The County's claim of $88,286.00 does not consist of an excess loss since the Bond in question has a $1,000,000.00 policy limit.  Accordingly, The Hartford maintains a right of first recovery for its payment of $63,286.00.

   He requested:

   Would you please contact the necessary individuals to determine the amount of restitution thus far received by Anne Arundel County for James Lowe. Afterwards, [***4] would you then please issue my office a check for this amount, payable to William K. Dove, II on behalf of The Hartford.  Moreover, it is requested that the County take whatever necessary steps to insure that all further restitution payments are likewise issued to my office on behalf of The Hartford.
 
He suggested, "Should you have any questions regarding the above, please feel free to call."

   [*681] The Assistant County Attorney did not share the view of the insurer's counsel.  He sent the insurer's counsel a copy of Art. 27, § 640 of the Maryland Code.  He pointed out:

   As you can see, the law clearly distinguishes categories of individuals or entities to whom restitution may be ordered by the court.  Specifically, § 640(b)(3) allows the court to distinguish between those payments which would go to the [**429] direct victim of a crime and those which would be made to a third-party payor, including an insurer which has made payment to the victim to compensate the victim for a property loss.  Moreover, subsection (b)(4) mandates that the court give priority in payment of restitution to the victim unless the victim has been fully compensated for the loss by a third party[***5] payor. 
 
(Emphasis in original).  He explained, "In this instance, the court ordered that restitution be made to the victim (Anne Arundel County) and not to the insurer." He observed that the $25,000 restitution amount "represented the out-of-pocket loss to the County." He noted that the attorney then representing the insurer "was fully aware of the ongoing criminal proceeding and had every opportunity to advise [the prosecutor] or the court that the insurer believed any restitution amount should be paid directly to it." He rejected, "[u]nder the circumstances," the demand that the County "forward any restitution payments to you on behalf of [the insurer]."

   The insurer filed suit in the Circuit Court for Anne Arundel County against the County.  The first eight paragraphs of the Complaint as amended set out the facts surrounding the loss sustained by the County by reason of Lowe's conduct, and called attention to the obligation of the insurer under the bond, including the deductible rider, and asserted that by reason of its obligation the insurer had paid the County $63,286, representing the County's loss less the deductible sum of $25,000.  Paragraph 9 alleged that in exchange[***6] for the insurer's payment the County had assigned to the insurer all its rights to all money recovered by reason of the proof of loss.  The Release and Assignment [*682]document was made a part of the Complaint.  Paragraphs 10 and 11 claimed that Lowe "has been making and continues to make restitution payments to Anne Arundel," in an amount which at that time totaled about $7,000. Paragraphs 12-16 alleged that "the Bond, the Deductible Rider, and the Release and Assignment, each establish and define a contractual relationship between [the insurer] and Anne Arundel County," that the insurer has a right of first recovery on the sums recovered in connection with the loss, that the County has refused to pay the sums, that the retention of the sums constituted a breach of contract, and that the stated intention of the County to retain the sums recovered from Lowe constitutes an anticipatory breach of contract. "Wherefore," the insurer requested,
 
judgment be entered against Anne Arundel County in the amount of Twenty-five Thousand Dollars ($25,000.00) with interest from the date of judgment, together with its costs hereby expended.  . . .
 
Paragraphs 17 and 18 of the Amended[***7] Complaint requested that a declaratory judgment be entered against the County in the amount of $25,000 and that the County
  
be ordered prospectively to pay to the [insurer] any and all sums it receives from James G. Lowe in restitution of monies embezzled from [the County] as and as soon as said monies are paid to the County . . . .

   The Release and Agreement made a part of the Amended Complaint by paragraph (1) released the insurer from all liability under the bond by reason of the loss.  Paragraph (2) read:

   The Insured has assigned and does hereby assign, sell, transfer and set over to the Surety all its rights, title and interest in relation to any and all items claimed in and by the said proof of loss, and all money that may be recovered by reason thereof.
 
It was signed by the Director of Administration of the County and acknowledged before a Notary Public as the free act and deed of the signers and sealers and the free act and deed of the County.

   [*683] The County moved for Summary Judgment, and the insurer filed a cross-motion for Summary Judgment.  After a hearing on the motions, the Circuit Court for Anne Arundel County denied the County's motion and granted [***8] the insurer's motion.  It entered judgment in favor of the insurer "as to the relief sought in the Amended [**430] Complaint . . . ." It "specifically" ordered the County
 
to pay [the insurer] all sums paid to or recovered to date [23 June 1992] to [the County] from James G. Lowe, including restitution paid through the Department of Parole and Probation, said sums totaling $16,323.07.
 
The County noted an appeal to the Court of Special Appeals.  We certified the case to us on our own motion prior to decision by the intermediate appellate court.

   II

   The County stated in its brief:

   It is the County's position that Hartford's "right of first recovery" under the contractual language of the Deductible Rider does not extend to restitution payments made to the County as a victim of a crime.  The County does not contest Hartford's right under this contractual language to "any such recoveries" other than criminal restitution. 3n[1]
 
(Emphasis in original).  "In other words," the County continued, Md.Code (1957, 1992 Repl.Vol.) Art. 27,
 
§ 640(b)(4) renders void and unenforceable the contract provision only insofar as the provision embodies an agreement that the insurer has[***9] the right to restitution proceeds; to the extent that the same provision reflects the parties' intent concerning other recoveries, the statute is inapplicable.
 
[*684] At the time this case was before the circuit court, Section 640(b)(4) provided:

    If the victim has been fully compensated for the victim's loss by a third-party payor, the court may order restitution to the third-party payor. Otherwise, payment of restitution to the victim has priority over payment of restitution to the third-party payor.
 
It is the County's view that paragraph (2) of the rider and paragraph (2) of Release and Assignment were invalidated as against public policy in light of the statute providing restitution for victims.

n1 The County conceded in its footnote 3,
 
that this "right of first recovery" applies to the pension contributions, unpaid disability and annual leave, and final paycheck for Mr. Lowe which were retained by the County as a set-off against the theft loss caused by Mr. Lowe.

   A

   In Coles v. State, 290 Md. 296, 429 A.2d 1029 (1981),[***10] we outlined the economic and penological aims sought to be accomplished by ordering a person convicted of crime to repay his victim.
 
A court which orders restitution does a certain solomonic justice for the aggrieved victim who is entitled to requital of that unlawfully taken or reparation for injury criminally inflicted; thus, restitution as a probationary tool has an understandable appeal.
 
Id. at 305, 429 A.2d 1029. "Its significance extends beyond untinseled justice," we observed, "for it should be viewed more expansively as an aid in rehabilitating the defendant." Id. We pointed to what one court stated:
 
[Restitution] offers the individual something within reason that he can do here and now, within the limits of his ability to demonstrate to himself that he is changing.  A fine is punitive.  A jail sentence is retributive.  But restitution makes sense.  It is every man's obligation to meet responsibilities of this sort in civil life.  [State v. Harris, 70 N.J. 586, 362 A.2d 32, 35 (quoting D. Dressler, Practice and Theory of Probation and Parole 176-77 (1959) (emphasis [***11]in original).]
 
Id. 290 Md. at 305-306, 429 A.2d 1029. Noting that a court's concern that the victim be fully compensated should [*685] not overshadow its primary duty to promote the rehabilitation of the defendant, we stated:
 
Should the court choose to impose restitution, this fundamental objective of promoting rehabilitation comes to the fore and the court in ordering such a condition ordinarily should not exceed the defendant's ability to comply.
 
Id. at 306, 429 A.2d 1029. "This is so," we explained,
 
 [**431] because if the amount fixed exceeds the defendant's resources, the rehabilitative purpose of the sentence is frustrated, especially where restitution is set as a condition of probation, "for in such a case the defendant is told that he will not be imprisoned only if he somehow satisfies a condition he cannot hope to satisfy."
 
Id. (citations omitted).
 
Consequently, most courts which have considered the issue have determined that it is improper for a trial court to order restitution without basing that judgment on a reasoned inquiry into the defendant's [***12] ability to pay, . . .
 
Id. (citations omitted).

   Thus, as we observed in Lee v. State, 307 Md. 74, 78, 512 A.2d 372 (1986), it is "widely recognized" that "the fundamental purpose" of ordering restitution as a condition of probation is "rehabilitating the defendant and affording the aggrieved victim recompense for monetary loss." We thought that "the General Assembly clearly intended the attainment of these objectives when it enacted Maryland's restitution statute . . . ." Id. at 79, 512 A.2d 372. Another objective of restitution is to provide a form of punishment for criminal conduct.  Songer v. State, 327 Md. 42, 46, 607 A.2d 557, 607 A.2d 557 (1992); Spielman v. State, 298 Md. 602, 610, 471 A.2d 730 (1984). For a general discussion on the purposes of restitution and its place in the criminal justice system, see Note, Victim Restitution in the Criminal Process: A Procedural Analysis, 97 Harvard L.Rev. 931 (1984).

   The objectives of restitution do not include that [***13] the victim must be made whole by the full reimbursement of [*686] the victim's loss, but they do not preclude that possibility if the defendant has the ability to pay.

   B

   Over a century ago this Court said:
[T]he right of parties to contract as they please is restricted only by a few well defined and well settled rules, and it must be a very plain case to justify a court in holding a contract to be against public policy.
 
Estate of Woods, Weeks & Co., 52 Md. 520, 536 (1879). We emphasized:
It must be a case in which the common sense of the entire community would so pronounce it.
 
Id. We find no departure from this view over the years.  In Baltimore v. Md. Casualty Co., 171 Md. 667, 673, 190 A. 250 (1937), the Court observed, quoting Casualty Insurance Company's Case, 82 Md. 535, 574, 34 A. 778 (1896):
"Speaking generally, the principle which holds that no one can lawfully do that which has a tendency to be injurious to the public, or against the public good, may be termed the policy of the law or public policy in relation to the administration[***14] of the law."
 
The Court noted that in Casualty Insurance Company's Case, it "quoted with approval this extract from Richardson v. Mellish, 2 Bing, 229, 130 Eng.Rep. 303: "
  
"I, for one, protest, as my Lord has done, against arguing too strongly upon public policy; it is a very unruly horse and when once you get astride it you never know where it will carry you.  It may lead you from the sound law.  It is never argued at all but when other points fail."
 
171 Md. at 673, 190 A. 250. Md.-Nat'l Cap. P. & P. v. Wash. Nat'l Arena, 282 Md. 588, 386 A.2d 1216 (1978), in an exposition of "public policy," pointed out:

   Fearing the disruptive effect that invocation of the highly elusive public policy principle would likely exert on the stability of commercial and contractual relations, Maryland courts have been hesitant to strike down voluntary [*687] bargains on public policy grounds, doing so only in those cases where the challenged agreement is patently offensive to the public good, that is, where "the common sense of the entire community would[***15] . . . pronounce it" invalid.
 
Id. at 606, 386 A.2d 1216, quoting Weeks, 52 Md. at 536 (other citations omitted).  We explained:
 
This reluctance on the part of the judiciary to nullify contractual arrangements [**432] on public policy grounds also serves to protect the public interest in having individuals exercise broad powers to structure their own affairs by making legally enforceable promises, a concept which lies at the heart of the freedom of contract principle.
 
282 Md. at 606, 386 A.2d 1216 (citations omitted).  We concluded:

   In the final analysis, it is the function of a court to balance the public and private interests in securing enforcement of the disputed promise against those polices which would be advanced were the contractual term held invalid. Enforcement will be denied only where the factors that argue against implementing the particular provision clearly and unequivocally outweigh "the law's traditional interest in protecting the expectations of the parties, its abhorrence of any unjust enrichment, and any public interest in the enforcement" [***16] of the contested term.
 
Id. at 607, 386 A.2d 1216. In First Nat'l Bank v. Fid. & Dep. Co., 283 Md. 228, 239, 389 A.2d 359 (1978), we quoted Patton v. United States, 281 U.S. 276, 50 S.Ct. 253, 74 L.Ed. 854 (1930):

   "The truth is that the theory of public policy embodies a doctrine of vague and variable quality, and, unless deducible in the given circumstances from constitutional or statutory provisions, should be accepted as the basis of a judicial determination, if at all, only with the utmost circumspection.  The public policy of one generation may not, under changed conditions, be the public policy of another."
 
[*688] We cited to Funk v. United States, 290 U.S. 371, 381, 54 S.Ct. 212, 215, 78 L.Ed. 369 (1933), as to like effect.  We expressed this view again in Adler v. American Standard Corp., 291 Md. 31, 432 A.2d 464 (1981). We acknowledged our awareness that "recognition of an otherwise undeclared public policy[***17] as a basis for a judicial decision involves the application of a very nebulous concept to the facts of a given case, and that declaration of public policy is normally the function of the legislative branch." Id. at 45, 432 A.2d 464. See also Bethlehem Steel v. G.C. Zarnas & Co., 304 Md. 183, 190, 498 A.2d 605 (1985) (Legislature "expressly stated" that certain indemnity provisions in construction contracts are "against public policy"); Jones v. Malinowski, 299 Md. 257, 273, 473 A.2d 429 (1984). In Adler we concluded:
 
We have been consistently reluctant, for example, to strike down voluntary contractual arrangements on public policy grounds.
 
291 Md. at 45, 432 A.2d 464 (citations omitted).  Cf., Felder v. Butler, 292 Md. 174, 183, 438 A.2d 494 (1981). And as the relationship between a statutorily-based public policy and a provision in a contract grows more attenuated, this Court's reluctance to invalidate the contractual provision on public policy [***18] grounds increases.  Finci v. American Casualty, 323 Md. 358, 378-379, 593 A.2d 1069 (1991).

   III

   The convicted thief, Lowe, has no interest whatsoever in this case.  The "fundamental purpose" of the restitution statute is being fulfilled by Lowe's compliance with the court's order for restitution payments.  No matter who ultimately gets the payments he makes, he is being rehabilitated and punished by the mere making of them.  When his payments amount to $25,000, the restitution condition of his probation will have been met whether the monies end up in the hands of the County or the insurer. The dispute between the County and the insurer in no way affects Lowe or his obligation under the statute.  Conversely, Lowe's [*689] obligation to make the restitution payments has no impact on the dispute between the County and the insurer.

   A

   The statute authorizes the court to "order that restitution be made to:"

   (i) The victim;

   (ii) The Department of Health and Mental Hygiene, the Criminal Injuries Compensation Board, or any other governmental entity; or

   (iii) A third-party payor, including an insurer, which has made payment to the [**433] [***19] victim to compensate the victim for a property loss or pecuniary loss . . . .
 
Art. 27, § 640(b)(3).  As we have seen, the statute places a restraint on the court's discretion to designate the third-party payor as the payee. Payment of restitution to the victim has priority over payment to the third-party payor unless the victim has been fully compensated for the victim's loss by the third-party payor. § (b)(4).  But there is legislative silence as to any restraint with respect to the disposition of the restitution payments received by the payee, be it the victim, a governmental agency, or the third-party payee. Therefore, if the victim is the payee, the victim is in no way fettered in the disposition of the money received.  The money may be disposed of at the whim of the victim, foolishly or wisely, prudently or wantonly.  If the victim chooses to give the money received to the third-party payor by way of a valid contract, release or assignment, there is no statutory prohibition to deter the victim from doing so.

   The County mounts the public policy horse in its attempt to invalidate the disputed provisions in the rider accepted by the County and the Release and Assignment executed[***20] by the County.  We find no declaration in the restitution statute or in the preamble to House Bill 1680, which was the source of the statute, that the enactment of the statute reflected public policy. We note that restitution is not [*690] mandatory; it does not apply to all defendants whose criminal conduct has caused loss to a victim.  An order for restitution is at the discretion of the judge and, if ordered, the amount of restitution is dependent on the ability of the defendant to pay.  As we have observed, an objective of the statute was to afford a victim recompense for monetary loss, but the Legislature did not go so far as to require that the victim be made whole by full reimbursement of the victim's loss.  But even if restitution for crimes were a matter of public policy, we do not believe that the challenged agreements are "patently offensive to the public good, that is, where 'the common sense of the entire community would pronounce them invalid,'" as we said in Md.-Nat'l Cap. P. & P., 282 Md. at 606, 386 A.2d 1216. On the contrary we think that to invalidate them, even only with respect to the $25,000 deductible amount[***21] which the County seeks, would improperly infringe on "the public interest in having individuals exercise broad powers to structure their own affairs by making legally enforceable promises, a concept which lies at the heart of the freedom of contract principle," id. at 606, 386 A.2d 1216. In the exercise of our function to balance the public and private interests served in the enforcement of the disputed promises against those policies which would be advanced were the contractual terms held invalid, we find no compelling factors that argue against implementing the disputed rider provision and the release and assignment which clearly and unequivocally outweigh the law's traditional interest in protecting voluntary contractual arrangements.  It is correct, of course, that the Legislature, in Art. 27, § 640(b)(4), gave priority to the victim to receive the restitution payments ordered by the court until the victim had been "fully compensated." But this does not mean that the victim was therefore fettered in the disposition of the payments.  We do not believe that public policy is one whit undermined by the County's relinquishment and assignment[***22] of its interest in the restitution payments to the insurer.

   [*691] In the circumstances of this case, we are as reluctant, as we have so often been in the past, to strike down voluntary contractual arrangements on public policy grounds.  The County under the restitution statute had the right to the $25,000 deductible amount which was not paid by the insurer. But it voluntarily and freely relinquished that right, not once but twice.  The County is a sophisticated government agency which dealt at arm's length with the insurer in negotiating and accepting the provisions it now disclaims.  It becomes unhorsed when it attempts to ride the unruly public policy horse to justify its complaint.

   [**434]

   It may be that the trial judge reached his decision in part for the wrong reason, but the decision he reached was the right one. n2 See Robeson v. State, 285 Md. 498, 502, 403 A.2d 1221 (1979), cert. denied, 444 U.S. 1021, 100 S.Ct. 680, 62 L.Ed.2d 654 (1980). Accordingly,

 n2 The County argued that the trial judge "found, without evidentiary support, that the County had gotten the benefit of a 'lower premium' for its insurance in return for assigning its rights to restitution to [the insurer]."

   The insurer disputed this view, and claimed that the fact that the County had gotten the benefit of a "lower premium" in light of the rider is "fully supported by the record." The insurer points to a footnote in the County's brief as conceding this.  The County admitted:

   It is not completely clear from [the trial judge's remarks] whether he assumed only that the County had paid a lower premium because of the deductible, and general assignment of rights, or whether he also assumed that the County had paid a lower premium because of the specific assignment of restitution proceeds. The County concedes here, as it did below, that the deductible and the general assignment of rights were part of the consideration for the fidelity bond.
 
But, the County added, what it did not concede is that "the availability vel non of restitution as part of the assignment of rights somehow affected the premium charged to the County."

[***23]

   JUDGMENTS OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AFFIRMED WITH COSTS. 

FERGUSON TRENCHING CO., INC. v. C. STUART KIEHNE 
No. 51, September Term, 1992
 
COURT OF APPEALS OF MARYLAND
 
329 Md. 169; 618 A.2d 735; 1993 Md. LEXIS 9

 January  20, 1993, Filed

   PRIOR HISTORY: [***1]

   Appeal from the Circuit Court for  Anne Arundel  County pursuant to certiorari to Court of Special Appeals. Lawrence H. Rushworth JUDGE

DISPOSITION: JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT.

CORE TERMS:  subcontractor, intent to defraud, contractor, prima facie evidence, personal liability, trust funds, fraudulent intent, defraud, fraudulent, personally liable, held in trust, diversion, fiduciary, duty, worthless check, false pretenses, failed to prove, fiduciary duty, suppliers, cheat, failure to return, pre-statute, evidentiary, convicted, missing, Worthless Check Act, false pretense, preponderance, fraudulently, subtitle

COUNSEL: ARGUED BY M. Evelyn Spurgin (Michael P. Darrow, both on brief) both of Annapolis, Maryland, FOR APPELLANT.
 
ARGUED BY Louis P. Ruzzi (Whiteford, Taylor & Preston, all on brief) all of Baltimore, Maryland, FOR APPELLEE.

JUDGES: ARGUED BEFORE Murphy, C. J., Rodowsky, McAuliffe, Chasanow, Karwacki, and Bell, JJ.

OPINIONBY: CHASANOW

OPINION: [*171]

   [**736]

   Opinion by Chasanow, J.

   In this case, we construe for the first time Maryland's construction trust statute, Maryland Code (1974, 1988 Repl. Vol., 1992 Cum. Supp.), Real Property Article, §§ 9-201 to 9-204. n1 At issue is the personal liability of a corporate general contractor's president for funds that the corporation held in trust for a subcontractor, but used for other purposes.  The construction trust statute provides that a corporate officer of a contractor may be held personally liable when, with intent to defraud, the officer retains or uses the funds for a purpose other than the payment of those subcontractors for whom the funds were being held [***2] in trust.

 n1 Unless otherwise noted, all references to section numbers are to Maryland Code (1974, 1988 Repl. Vol., 1992 Cum. Supp), Real Property Article.

   I.

   This case arises from a contract between appellant, Ferguson Trenching Co., Inc. (Ferguson), and Advanced Excavation Company, Inc. (Advanced), of which appellee, C. [*172] Stuart Kiehne (Kiehne), is the president.  On August 16, 1989, Advanced entered into a $279,380 contract with Triple Brook Partnership to perform excavation work for Mount Oak Estates, a Triple Brook real estate development in Anne Arundel County.  On September 15, 1989, Advanced executed a $44,549 contract with Ferguson which called for Ferguson to install a water line on the Mount Oak job.  Ferguson completed its work and billed Advanced on February 5, 1990 for the contract price.

   Advanced received only $251,000 in payments from Triple Brook towards its $279,380 Mount Oak contract.  It paid out approximately $78,000 to subcontractors other than Ferguson and $82,000 in equipment costs for[***3] the project, and incurred approximately $46,000 in labor costs for its hourly employees on the project. n2 According to Advanced, the balance of about $45,000 was devoted to "the payment of debts incurred in connection with other construction projects and to Advanced's operating expenses." Three subcontractors or suppliers, including Ferguson, did not receive payment from Advanced for their work on the Mount Oak project. 

 n2 While there are minor discrepancies in the parties' versions of the Mount Oak job accounting, both parties generally agree as to the accounting we set forth.

   Ferguson sought and obtained a judgment against Advanced for the amount due under the contract.  In addition, Ferguson filed a complaint in the Circuit Court for Anne Arundel County alleging that Kiehne, Advanced's president, had violated Maryland's construction trust statute.  Section 9-201(a) of the statute provides:
 
"(a) Moneys to be held in trust. -- Any moneys paid under a contract by an owner to a contractor, or by the owner[***4] or contractor to a subcontractor for work done or materials furnished, or both, for or about a building by any subcontractor, shall be held in trust by the contractor or subcontractor, as trustee, for those subcontractors who did work or furnished materials, or both, for or [*173] about the building, for purposes of paying those subcontractors."
 
Section 9-202 of the statute provides:
 
"Any officer, director, or employee of any contractor or subcontractor, who, with intent to defraud, retains or uses the moneys held in trust under § 9-201 of this subtitle, or any part thereof, for any purpose other than to pay those subcontractors for whom the moneys are [**737] held in trust, shall be personally liable to any person damaged by the action."
 
With respect to establishing the requisite "intent to defraud" for purposes of imposing personal liability under § 9-202, § 9-203 provides that
 
"the use by a contractor or subcontractor or any officer, director, or employee of a contractor or subcontractor of any moneys held in trust under § 9-201 of this subtitle, for any other purpose than to pay those subcontractors who did work or furnished materials, or both, for or about the building, shall be [***5]prima facie evidence of intent to defraud in a civil action."
 
In its complaint, Ferguson claimed that when Kiehne paid other debts of Advanced with money received for Ferguson's work, Kiehne became personally liable to Ferguson under §§ 9-202 and 9-203.

   The case was tried before Judge Lawrence H. Rushworth, sitting without a jury.  At trial, Kiehne testified that Advanced lost over $200,000 in 1989 and that he had gone so far as to consult with an attorney about a Chapter 11 bankruptcy filing.  At the time Ferguson billed Advanced for its work on the Mount Oak job, Advanced was 90 to 150 days behind in payments to its creditors. In his Memorandum of Opinion and Order, the judge found that at the time Kiehne purchased Advanced in 1988, the business "was undergoing financial difficulties" which the court attributed to "earlier poor management and unseasonably wet weather." He also found that Advanced's problems "were made even more severe by the decline in the development industry from 1989 to the present period." He observed that [*174] Kiehne had "placed large amounts, up to Sixty-Five Thousand Dollars ($65,000.00), of his own funds into the company in an attempt to keep the corporation[***6] solvent."

   Noting that these facts are important "only as they go to the intent to defraud" which triggers personal liability under the statute, Judge Rushworth concluded that Ferguson had failed to make "a showing by a preponderance of the evidence of a clear intent to defraud" and entered judgment in Kiehne's favor. n3 Ferguson appealed to the Court of Special Appeals, and we granted certiorari before the intermediate appellate court could consider the case. Md.  Code (1974, 1989 Repl.  Vol., 1992 Cum.  Supp.), Courts & Judicial Proceedings Art., §§ 12-201 & 12-203. 

 n3 Ferguson complains that the trial judge's opinion indicates that he confused the standard of proof by mixing the "preponderance of the evidence" and "clear and convincing evidence" standards. The correct standard for proof of fraud is "clear and convincing evidence." Everett v. Baltimore Gas & Elec. Co., 307 Md. 286, 300, 513 A.2d 882, 889-90 (1986). Since the clear and convincing standard is more burdensome to the plaintiff than the preponderance of the evidence standard, any hint of the preponderance standard in the trial judge's opinion would only have worked to Ferguson's advantage.  Thus, any error in the standard the judge applied was harmless.

[***7]

   On appeal, Ferguson contends that the trial judge erred in two principal ways.  First, Ferguson argues that the judge failed to recognize Kiehne's fiduciary duty to subcontractors such as itself, and therefore did not impose upon Kiehne the obligations that attend fiduciary status.  Second, Ferguson argues that the trial judge improperly interpreted § 9-203 of the statute, which provides that use of trust moneys by a contractor's officer for a purpose other than payment of the subcontractors who worked on the job constitutes prima facie evidence of intent to defraud. We address each of these contentions.

   II.

   The construction trust statute, titled "Trust Relationships in the Construction Industry," was enacted by Chapter 345 of the Acts of 1987 to protect subcontractors [*175] from dishonest practices by general contractors and other subcontractors for whom they might work.  To this end, it provides two distinct bases of liability. Section 9-201 creates a trust relationship between the contractor or subcontractor that has been paid by the owner and the subcontractor for whose work the owner has paid.  Under § 9-201, upon receiving payment from the owner, the contractor or [**738] subcontractor[***8] holds the funds in trust for the benefit of the subcontractor that has performed work or provided materials for the project. Section 9-202 establishes the personal liability of officers, directors, or employees of contractors or subcontractors who fraudulently retain or use such trust moneys.  The statute applies to both private and public construction projects, but not to contracts for the construction and sale of a single family residential dwelling, or to home improvement contracts by licensed home improvement contractors. § 9-204.

   The personal liability provisions of the statute must be viewed in the context of basic corporate law.  Officers and directors of a corporation generally are insulated from personal liability for the debts of the corporation.  As we said in Ace Dev. Co. v. Harrison, 196 Md. 357, 366, 76 A.2d 566, 570 (1950), "when an official or agent signs a contract for his corporation it is simply a corporate act.  It is not the personal act of the individual, and he is not personally liable for the corporate contract unless the matter is tainted by fraud. . . ." See also Bart Arconti & Sons, Inc. v. Ames-Ennis, Inc., 275 Md. 295, 312, 340 A.2d 225, 235 (1975)[***9] ("the corporate entity will be disregarded only when necessary to prevent fraud or to enforce a paramount equity").

   As one author has observed, under common law rules litigants faced great difficulties in proving that corporate officers or directors committed fraud and noted that, prior to the statute's enactment
 
"an unscrupulous individual could establish a thinly capitalized construction company, use funds from a project to pay handsome salaries to the company's officers, and be fairly confident that the officers would not be personally [*176]responsible for the debts of lower-tiered subcontractors and suppliers."
 
David F. Albright, The Maryland Construction Trust Statute: New Personal Liability -- Its Scope and Federal Bankruptcy Implications, 17 U. Balt. L. Rev. 482, 484 (1988). In a letter to the chairman of the Senate committee considering the legislation, the president of the Maryland Society of the American Institute of Architects described the effect of a subcontractor's failure:
 
"[a] major subcontractor's financial failure precipitates a chain reaction due to the accumulation of unpaid monies to their subcontractors and suppliers that [***10] must be repaid by the Owners or General Contractor to free the project from mechanic liens.
 
Virtually every major construction project sees a subcontractor fail financially.  To the extent that retainage is inadequate to cover the unpaid subcontractors and suppliers of the failed subcontractor for work performed, the General Contractor or Owner must make up that difference.  Usually the failed subcontractor simply reopens business under a new name and continues to plague our industry."
 
Letter from Phillip W. Worrall to the Hon. Walter M. Baker (Mar. 10, 1987) (in Legislative Bill file for S.B. 374, 1987 Term).  By specifically providing for personal liability of officers, directors, and employees who intend to defraud subcontractors, and by providing that proof of a diversion of trust funds is prima facie evidence of intent to defraud, the statute makes recovery easier for subcontractors who fall victim to unscrupulous practices.

   As originally drafted, Senate Bill 374 sought to impose both criminal and civil liability.  It originally provided that any officer, director, or employee of the contractor or subcontractor who, with intent to defraud, retained or used the trust moneys[***11] for any purpose other than to pay the subcontractors would have been guilty of larceny and subject to a fine not to exceed $5,000 and imprisonment of not more than one year.  S.B. 374, 1987 General Assembly of [*177] Maryland, proposed § 9-116.  The bill was subsequently amended to delete the criminal sanctions.

   In the five years since its enactment, the statute has been reviewed only five times in reported opinions, each time by the federal bankruptcy court.  See In re Piercy, 140 Bankr. 108 (Bankr. D. Md. 1992); In re Marino, 139 Bankr. 380 [**739] (Bankr. D. Md. 1992); In re Parks, 141 Bankr. 92 (Bankr. D. Md. 1991); In re Holmes, 117 Bankr. 848 (Bankr. D. Md. 1990); In re Marino, 115 Bankr. 863 (Bankr. D. Md. 1990). The instant case presents the first opportunity for a Maryland court to interpret the statute, and we now turn to that task.

   III.

   With respect to Ferguson's first argument, that Kiehne himself had a fiduciary duty to Ferguson, we need look only as far as the statute's plain language to see that Kiehne in fact had no such duty. "In construing[***12] a legislative enactment the fundamental judicial task is to determine and effectuate the legislature's intent, and indeed the very language of the statute serves as the primary source of the legislature's intent." Scheve v. Shudder, 328 Md. 363, 371-72, 614 A.2d 582, 586-87 (1992). Thus, when the language of a statute is clear and unambiguous, we need look no further to determine the legislature's intent.  Management Personnel Servs. v. Sandefur, 300 Md. 332, 341, 478 A.2d 310, 341 (1984). In § 9-201, the statute creates a trust relationship between the contractor or subcontractor that has received payment from an owner and the subcontractor for whose performance the owner has paid. Nothing in the statute makes a corporate officer, director, or employee a fiduciary with respect to a party that has entered into a contract with the corporation.

   Section 9-201, in fact, clearly states that moneys "shall be held in trust by the contractor or subcontractor, as trustee" for the subcontractors. (Emphasis added).  Section 9-204(c), which supplies definitions for the statute, provides that "in[***13] this subtitle, . . .  'contractor,' and 'subcontractor' [*178]have the same meanings as in § 9-101 of this title." Section 9-101, in turn, provides that a "contractor" is "a person who has a contract with an owner," § 9-101(d), while a "subcontractor" is "a person who has a contract with anyone except the owner or his agent." § 9-101(g). Finally, § 1-101(j) of the Real Property Article, which provides definitions for use throughout the Article, defines "person" as including "any partnership, firm, association, public or private corporation, or any other entity." Thus, whatever the duties of a trustee or fiduciary may be, a question that is not before us today, these duties are imposed only on the party to the contract. In the case of a corporate party, these duties flow to the corporation, but not to its individual officers or directors.

   Several of the federal bankruptcy cases referenced above have addressed this very question and reached the same conclusion.  In In re Marino, 115 Bankr. 863 at 870, 872, for example, the court, Derby J., said:
 
"The instant Contractor was a corporation, of which Debtor was an officer.  It was the Contractor that was the contracting[***14] party with the owner plaintiffs, and it was the Contractor on which the trust obligations were imposed literally.

   * * *
 
[Section 9-202] does not explicitly make corporate officers liable generally for application of trust funds. While § 9-202 places personal liability on an officer, it does so only when the officer diverts trust funds ". . . with intent to defraud, . . . ." It is not a general fiduciary liability for all purposes.

   The liability of corporate officers under the Maryland statute can be contrasted with the liability of corporate officers under statutes from other states.  Oklahoma's trust statute provides that "if the party receiving any money under [the section imposing the trust] shall be a corporation, such corporation and its managing officers shall be liable for the proper application of such trust [*179] funds. . . ." Okla. Stat. Ann. tit. 42, § 153(3) (West 1990) (emphasis added); see Carey Lumber Co. v. Bell, 615 F.2d 370, 374-75 (5th Cir. 1980) (finding that Oklahoma statute creates an express trust between materialmen and both the corporate contractor and its officers, imposing a fiduciary duty on corporate officers); In re Marino, 115 Bankr. 863 at 870-72 [***15](contrasting two Maryland trust statutes with the Oklahoma law and finding that the Maryland statutes, unlike the Oklahoma law, did not directly impose liability [**740] on a corporate contractor's directors and officers).  Similarly, the Texas construction trust fund statute provides that "[a] contractor, subcontractor, or owner or an officer, director, or agent of a contractor, subcontractor, or owner, who receives trust funds or who has control or direction of trust funds, is a trustee of the trust funds." Tex.  Prop.  Code Ann.  § 162.002 (West 1984) (emphasis added); cf.  Nuclear Corp. of America v. Hale, 355 F. Supp.  193, 197 (N.D.  Tex.) (stating that under prior, but essentially similar, Texas construction trust fund statute, officers and directors of a corporate subcontractor were trustees of funds and were personally liable for funds spent in violation of that trust), aff'd, 479 F.2d 1045 (5th Cir. 1973).

   Had the contract been executed between Ferguson and Kiehne as an individual, then as a party to the contract Kiehne would indeed have become a trustee under § 9-201 and acquired fiduciary duties towards Ferguson. [***16] The instant contract, however, was between Ferguson and Advanced, and thus the trial judge was correct in imposing no fiduciary duty on Kiehne personally.

   IV.

   Ferguson's second argument is that the trial judge misconstrued or misunderstood the personal liability provisions of the statute.  The judge found that Ferguson had failed to prove Kiehne acted with "intent to defraud," and therefore decided Kiehne was not susceptible to personal liability under § 9-202.  Ferguson contends that, under § 9-203, proof that the trust funds were diverted to a [*180] purpose other than paying the subcontractors on the job is equivalent to conclusive proof of intent to defraud. Ferguson, however, misreads the statute.  Section 9-203 provides that diversion of trust funds shall be only "prima facie evidence of intent to defraud. . . ." (Emphasis added).

   This Court considered the meaning of "prima facie evidence" in a number of cases addressing now-superseded §§ 140 and 142 of Article 27.  Former § 140 of Article 27 defined and provided penalties for the crime of false pretenses. It provided:
 
"Any person who shall by any false pretense obtain from any other person any chattel, money or valuable[***17] security, with intent to defraud any person of the same, shall be guilty of a misdemeanor. . . ."
 
Passed subsequent to and then coexisting with the false pretenses statute was the Maryland Worthless Check Act, codified at former § 142 of Article 27.  It defined a particular type of false pretense, mainly the passing of bad checks and the unauthorized use of credit cards.  It provided:
 
"Every person who, with intent to cheat and defraud another, shall obtain money, credit, goods, . . . by means of a check, draft or any other negotiable instrument of any kind drawn . . .  shall be deemed to have obtained such money, credit, goods, . . . by means of a false pretense. . . .  The giving of the aforesaid worthless check, draft or negotiable instrument . . . shall be prima facie evidence of intent to cheat or defraud[.]" (Emphasis added).
 
We considered the significance of the "prima facie evidence" language of § 142 which was absent from § 140, the general false pretenses statute.  In Willis v. State, 205 Md. 118, 106 A.2d 85 (1954), we addressed the State's burden of proof under the Worthless Check Act. With respect to the prima[***18] facie evidence provision of § 142, we said that
 
"it was obviously because of the difficulty so frequently encountered in proving fraudulent intent that the Legislature provided in the Worthless Check Act that the giving of a worthless check raises a prima facie presumption of [*181] an intent to defraud. In a prosecution under this Act the burden is on the accused to show that he had no intent to defraud, and the presumption may be rebutted by proof of proper facts negativing a fraudulent intent."
 
Id. at 124-25, 106 A.2d at 88. Similarly, in Waye v. State, 231 Md. 510, 514, 191 A.2d 428, 430 (1963), we said:
 
"Thus it is seen that when the prosecution is under § 142, the mere giving of a [**741] worthless check under the circumstances named in the statute raises a presumption of an intent to cheat and defraud. However, if the State elects to proceed under § 140 where a worthless check is involved, it must do so without the aid of any presumption and affirmatively establish an intent by the defendant to cheat and defraud."
 
The effect of the "prima facie evidence" provision in § 142 was extremely [***19]significant in the outcome of prosecutions under both §§ 140 and 142. In Flannigan v. State, 232 Md. 13, 191 A.2d 591 (1963), the defendant was convicted under § 142 for having cashed a check which did not belong to him.  On appeal, he argued that he could not be convicted under § 142 because "'the element of intent to defraud [was] missing,'" i.e., it had not been proved.  Id. at 18, 191 A.2d at 593 (quoting the defendant's argument).  We reviewed the statute and held that
 
"there was no attempt made [by the defendant] to combat the [prima facie evidence] presumption.  As soon as the State proved that the defendant cashed the check and it had been dishonored, . . . the presumption arose.  The defense offered no witnesses, and made no effort in cross-examining those presented by the State to offset the effect of the presumption.  The evidence produced not only permitted, but impelled, a finding of guilt. . . ."
 
Id. If in Flannigan the presence of the prima facie evidence provision in § 142 worked to the defendant's detriment, then in Willis v. State its absence from § 140[***20] worked to the defendant's benefit.  In Willis, the State had charged the defendant with a violation of § 140, the general false pretenses statute, and not § 142.  The Court pointed out [*182] that "since the indictment in this case charged a violation of the original False Pretense Act [§ 140], not the Worthless Check Act [§ 142], the State had the burden of proving that [the] defendant was motivated by a fraudulent intent," without the evidentiary boost provided by the prima facie evidence provision appearing only in § 142.  Willis, 205 Md. at 127, 106 A.2d at 89. In Willis, the Court concluded that "the State failed to produce evidence to support the charge that defendant [acted] with intent to defraud," and reversed the § 140 conviction. Id. at 128-29, 106 A.2d at 90.
 
   In making this analogy to our old theft statutes, we recognize that the precise meaning of "prima facie evidence" is the subject of considerable disagreement. Two competing views exist, described by one commentator as follows:
 
"The term 'prima facie evidence' is sometimes used to mean 'compelling evidence,' i.e.,[***21] evidence which shifts the burden of production to the opposing party, and thus to signify a true evidentiary rebuttable presumption.  It is also used to mean 'sufficient evidence' to get to the jury, i.e.,, merely that the party with the burden of persuasion has met the burden of production and created an issue for the trier of fact by giving rise to a permissible inference." (Footnotes omitted).
 
Lynn McLain, Maryland Evidence § 301.4, at 230-31 (1987); see also Grier v. Rosenberg, 213 Md. 248, 252-55, 131 A.2d 737, 739-40 (1957). We can decide the issue in this case without becoming entangled in the law of presumptions, which we have previously characterized as "'the slipperiest member of the family of legal terms, except its first cousin, 'burden of proof.'" Ristaino v. Flannery, 317 Md. 452, 456, 564 A.2d 790, 792 (1989) (quoting E. Cleary, McCormick on Evidence § 342, at 965 (3d ed. 1984)).  We need not choose between the two competing approaches in order to reject the approach that Ferguson urges upon us.  Ferguson's argument that proof of diversion of trust funds equals [***22]proof of intent to defraud would give "prima facie evidence" the effect of an irrebuttable, or conclusive, presumption -- [*183] one which the defendant could not refute at all.  Ferguson provides no authority for such an approach, and we can find none.

   In the absence of legal authority, Ferguson argues that, logically, the "prima facie evidence" language in § 9-203 of the construction trust statute must equate to conclusive proof. Because a corporate officer's personal liability for corporate debts [**742] could have been premised, even pre-statute, on fraudulent conduct, see Bart Arconti, 275 Md. at 312, 340 A.2d at 235; Ace Dev. Corp., 196 Md. at 366, 76 A.2d at 570, Ferguson contends that anything but its interpretation of the statute does no more than restate the general rule of officer liability.  We disagree, because we think it is clear that the statute enhances the personal liability of corporate officers and directors in a very important way.  Under the statute, proof of the diversion of funds allows a plaintiff's case to reach the fact finder without the plaintiff otherwise having to prove[***23] the defendant's intent to defraud. This is especially significant in light of the fact that the requirement of intent to defraud may be difficult to prove.  Contrary to Ferguson's contentions, our interpretation of § 9-203 does not simply restate the pre-statute rule.  While it does not create an irrebuttable presumption of intent to defraud, § 9-203 nonetheless provides the plaintiff subcontractor an important evidentiary boost towards establishing the defendant's intent to defraud. In this respect, it significantly alters the pre-statute personal liability of corporate officers.

   V.

   From the conclusion that proof of a diversion of funds does not provide an irrebuttable presumption of intent to defraud, it follows that a defendant may introduce evidence to convince the trier of fact that he or she did not act with intent to defraud. Perhaps surprisingly, the term "intent to defraud" has not been clearly or uniformly defined in this state, despite the fact that "intent to defraud" and its analogue, "fraudulent intent," are elements of many acts [*184]proscribed by statute in Maryland.  See, e.g., Md. Code (1957, 1992 Repl. Vol.), Art. 27, § 9 (insurance fraud), § 44(b) (counterfeiting[***24] and forgery of instruments), § 132 (fraudulent misappropriation of trust property or money by fiduciaries), § 145(c)-(e) (credit card offenses), § 173 (conversion of partnership money), § 193 (tampering with gas meter); Md. Code (1982, 1990 Repl. Vol.), Health-General Art., §§ 21-217(b)(7) & 21-258(b)(4) (misbranded drugs or devices); Md. Code (1977, 1992 Repl. Vol.), Transportation Art., § 14-110 (falsification of documents or plates), §§ 18-104 & 22-415(3)-(4) (sale or operation of vehicles with disconnected or altered odometers); Md. Code (1992), Business Regulation Art., § 1-415 (fraudulent use of business or trade name); Md. Code (1975, 1990 Repl. Vol.), Commercial Law Art., § 14-1403 (unlawful possession of credit card number), § 15-207 (fraudulent conveyances), §§ 18-201 to 18-207 (fraudulent issuance and negotiation of bills of lading), §§ 18-303 & 18-306 (fraudulent issuance and negotiation of warehouse receipts).

   We recently considered the meaning of "intent to defraud" in the context of a Baltimore City Code provision forbidding the representation, with intent to defraud, of non-kosher food as kosher.  Barghout v. Mayor, 325 Md. 311, 600 A.2d 841 (1992).[***25] We concluded that "only vendors who wilfully embark on a course of commercial deceit by making untrue representations may run afoul of its [the ordinance's] proscriptions, and vendors who sincerely believe that their food products meet the kosher requirements would not violate the ordinance. " Id. at 321, 600 A.2d at 845 (footnote omitted).

   Underlying an "intent to defraud" is some form of bad faith by the defendant. In order to have an intent to defraud, the defendant must act dishonestly or at least with reckless indifference. See Everett v. Baltimore Gas & Elec., 307 Md. 286, 300, 513 A.2d 882, 889 (1986) (stating that an element of fraud is knowledge or "such reckless indifference . . . as to impute knowledge to the party.").  In a recent products liability case, we discussed "intent to [*185]defraud" and concluded, for the purpose of determining whether punitive damages were available, that the products liability equivalent of "intent to defraud" is "actual knowledge of the defect and deliberate disregard of the consequences," Owens-Illinois v. Zenobia, 325 Md.  420, 462, 601 A.2d 633, 653,[***26] reconsideration denied, 325 Md.  665, 601 A.2d 633 (1992), a standard that "requires a bad faith decision by the defendant to market a product. . . ." Id. at 463, [**743] 601 A.2d at 653 (emphasis added).  We also stated:
 
"Actual knowledge [for intent to defraud], however, does include the wilful refusal to know. See, e.g., State v. McCallum, 321 Md. 451, 458-461, 583 A.2d 250, 253-255 (1991) (Chasanow, J., concurring) ("'Knowledge' exists where a person believes that it is probable that something is a fact, but deliberately shuts his or her eyes or avoids making reasonable inquiry with a conscious purpose to avoid learning the truth.")."
 
Id. at 462 n.23, 601 A.2d 654 n.23. Other Maryland cases addressing an intent to defraud bear out this characterization.  In Roderick v. State, 9 Md. App.  120, 262 A.2d 783 (1970), for example, the defendant was convicted of larceny after trust upon failing to return, after being suspended[***27] from duty, items of personal property issued to him by the State Police for his use as a state trooper.  The Court of Special Appeals concluded that the State had failed to prove "that the defendant's failure to return the items . . . was accompanied by a specific intent to fraudulently convert them to his own use as required by the statute." Id. at 125, 262 A.2d at 786. The State proved only a failure to return the items, and its own witnesses testified that the defendant first advised them he intended to return the items, and then that he could not return them because they had become lost.  Further, there was uncontradicted evidence that the defendant had offered to reimburse the State for the missing items and that he had returned the "great bulk" of the property issued to him.  Id. at 126, 262 A.2d at 786. The court noted the absence of any "presumption of law" and held that "the mere failure to return the missing items [*186] will not, without more, support a finding of fraudulent conversion . . .," and it reversed the conviction. Id.

   Our characterization of "intent to defraud" as requiring[***28] dishonesty or bad faith by the defendant is supported by federal cases holding that the defendant's good faith is a defense to a federal charge whose elements include an intent to defraud. A summary of this defense is found in United States v. Ammons, 464 F.2d 414, 417 (8th Cir.), cert. denied, 409 U.S. 988, 93 S.Ct. 343, 34 L.Ed.2d 253 (1972), where the court approved of the following jury instruction:
 
"'Fraudulent intent is one of the essential elements of the offenses with which the defendants are charged. . . . Bad faith is an essential element of fraudulent intent. Good faith constitutes a complete defense to one charged with an offense of which fraudulent intent is an essential element.  One who acts with honest intention is not chargeable with fraudulent intent. One who expresses an opinion honestly held by him, or a belief honestly entertained by him, is not chargeable with fraudulent intent even though such opinion is erroneous and such belief is a mistaken belief.  Evidence which establishes only that a person made a mistake in judgment or an error in management, or was careless, [***29] does not establish fraudulent intent.'"
 
Id. (quoting trial court's instruction); see also United States v. Williams, 728 F.2d 1402, 1404 (11th Cir. 1984) ("Good faith is a complete defense to the element of intent to defraud.").

   Applying these principles to the facts of the instant case, we must first note that when an action has been tried without a jury, we review the case on both the law and the evidence.  Maryland Rule 8-131(c).  We do not set aside the judgment of the trial court on the evidence, however, unless it is clearly erroneous.  Id. In this case, the judge below concluded that, despite the fact that Ferguson proved that Kiehne diverted trust funds, it failed to prove that Kiehne did so with the intent to defraud. Reviewing the law, as we have done, and the evidence, as we now do, we cannot say [*187] that the trial judge was clearly erroneous when he found for Kiehne.

   From the evidence offered at trial, the trial court could have found the following facts, which individually or collectively might negate an intent to defraud by Kiehne: (1) all contract funds were devoted to legitimate business debts and expenses of Advanced; (2) Advanced[***30] was undergoing [**744]severe financial hardship throughout Kiehne's ownership of the company, and before he took it over; (3) Advanced was from 90 to 120 days behind on its payments to creditors; (4) Advanced suffered a net loss of over $200,000 in 1989; (5) Kiehne consulted with an attorney about a possible Chapter 11 bankruptcy filing; (6) an amount nearly equal to the amount Advanced owed Ferguson was still owed to Advanced by the owners of the Mount Oak project; (7) Kiehne invested a large amount of his own money, perhaps as much as $65,000, to keep Advanced in business; (8) Kiehne fully intended to pay Ferguson's invoice, but Advanced's cash collections fell short of projections.

   In sum, the trial judge could have found that Kiehne genuinely believed Advanced would be able to pay Ferguson what it was owed within a reasonable time, out of Advanced's anticipated future income.  Such a finding could be sufficient to negate the prima facie presumption that Kiehne acted with the intent to defraud under the standards we have enunciated above.  Kiehne may have, in the words of the Eighth Circuit's Ammons, made a "mistake in judgment or an error in management." Ammons, 464 F.2d at 471.[***31] He may even have been "careless." Id. This does not necessarily mean, however, that he acted fraudulently when he used the trust moneys for other purposes.  We cannot say the trial judge erred in finding that Ferguson failed to prove Kiehne's intent to defraud, and we therefore affirm the judgment of the trial court in Kiehne's favor.

   JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT. 

JOHN ROLAND BROOKS, JR. v. STATE OF MARYLAND 
No. 46, September Term, 1992
 
COURT OF APPEALS OF MARYLAND
 
329 Md. 98; 617 A.2d 1049; 1993 Md. LEXIS 5

 January  13, 1993, Filed

   PRIOR HISTORY: [***1]

   Certiorari to Court of Special Appeals (Circuit Court for  Anne Arundel  County). Bruce C. Williams, JUDGE

DISPOSITION: JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED. CASE REMANDED TO THAT COURT FOR THE ENTRY OF A JUDGMENT VACATING THE JUDGMENT OF CONVICTION ENTERED BY THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AND REMANDING THIS CAUSE TO THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY WITH INSTRUCTIONS TO DISMISS THE INFORMATION WITHOUT PREJUDICE. COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID BY ANNE ARUNDEL COUNTY, MARYLAND.

CORE TERMS:  detainer, notice, prisoner, detainee, jurisdiction to try, clerk, speedy disposition, indictment, robbery, felony, complied, criminal information, charging document, transferred, notified, custody, untried, invoke, criminal jurisdiction, Detainers Act, Maryland Rule, preliminary hearing, motion to dismiss, final disposition, deadly weapon, speedy trial, common law, correspondence, superintendent, incarcerated

COUNSEL: ARGUED BY Sherrie B. Glasser, Assistant Public Defender (Stephen E. Harris, Public Defender, both on brief) both of Baltimore, Maryland, FOR APPELLANT.
 
ARGUED BY Mary Ellen Barbera, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General, and Annabell L. Lisic, Assistant Attorney General, both on brief) all of Baltimore, Maryland, FOR APPELLEE.

JUDGES: ARGUED BEFORE Murphy, C. J., Rodowsky, McAuliffe, Chasanow, Karwacki, Bell and Charles E. Orth, Jr., Judge of the Court of Appeals (retired, specially assigned), JJ.

OPINIONBY: RODOWSKY

OPINION: [**1050] [*100]

   Opinion by Rodowsky, J.

    This case involves the Intrastate Detainers Act, Maryland Code (1957, 1992 Repl. Vol.), Art. 27, § 6165 [***2] (IDA). Detainees who desire to invoke the IDA must deliver to the[*101] "appropriate court" their requests [**1051]for disposition of the untried charges. § 616S(b). The question presented here is which court is the "appropriate" one where the detainer is lodged based on a statement of charges issued by the District Court of Maryland, but the offense charged may be tried only by a circuit court.

   Section 616S(b) provides, in relevant part:
 
"Whenever the Division of Correction[,] . . . Patuxent Institution . . . or . . . any county or city jail receives notice of an untried indictment, information, warrant, or complaint against a prisoner . . ., the prisoner shall be brought to trial within 120 days after he has delivered (1) to the State's Attorney of the City of Baltimore or of the county in which the indictment, information, warrant, or complaint is pending and, (2) to the appropriate court, his written request for a final disposition . . . . The request of the prisoner shall be accompanied by a statement from the [party] having custody of the prisoner, setting forth [details about the prisoner's commitment]."

   On May 30, 1990, the petitioner, John Roland Brooks, Jr. (Brooks), was charged in[***3] the District Court of Maryland, sitting in Anne Arundel County at Annapolis, with common law robbery. The District Court does not have jurisdiction to try a prosecution for that common law felony. See Md. Code (1974, 1989 Repl. Vol.), §§ 4-301 and 4-302 of the Courts and Judicial Proceedings Article (CJ). Brooks was incarcerated at the time with the Division of Correction, and a detainer was lodged against him. To invoke the IDA, Brooks sent by certified mail a request for final disposition of the charges within 120 days and a Certificate of Inmate Status to the State's Attorney for Anne Arundel County and to the District Court at Annapolis. The correspondence to the District Court was dated June 29, 1990, and the correspondence to the State's Attorney was dated July 2, 1990. Both sets of documents were received by the addressees. [*102]

   After an August 15 preliminary hearing in the District Court, the State's Attorney filed a criminal information against Brooks in the Circuit Court for Anne Arundel County on September 17, 1990, charging offenses arising out of the same incident involved in the statement of charges. n1 On September 26, the District Court record was transferred to the circuit[***4] court pursuant to Maryland Rule 4-221(h). That record includes Brooks's inmate status report. Brooks's speedy disposition request does not appear in the record, but the parties have stipulated that notice was given to the State's Attorney and to the District Court. 

 n1 In addition to common law robbery, the information charged robbery with a deadly weapon, attempted robbery with a deadly weapon, assault with intent to rob, theft (felony), attempted theft (felony), battery, and assault.

    When Brooks was not brought to trial within the 120-day period, he filed, pro se, a motion to dismiss the information. That motion was denied in December. Several months later Brooks again moved to dismiss, a hearing took place on June 10, 1991, and the motion was denied. The circuit court concluded that Brooks had failed to serve the "appropriate court" with his request for speedy resolution, because an information had been filed in the circuit court and because the District Court was without jurisdiction to try the crime initially[***5] charged there.

   On June 20, 1991, Brooks was tried in the circuit court, found guilty of robbery and related offenses, and sentenced to eight years. He appealed to the Court of Special Appeals which affirmed in an unreported opinion, holding that Brooks had not notified the appropriate court. This Court granted certiorari.

   Because outstanding charges can "produce uncertainties which obstruct programs off prisoner treatment and rehabilitation, and cause a prisoner . . . to suffer serious disadvantages," the IDA was enacted "to encourage the expeditious and orderly disposition of . . . charges" against incarcerated individuals. § 616S(a). The IDA notice requirements[*103] ensure that the proper state officials are made aware of the accused's request in order that they can set the judicial machinery in motion for a speedy disposition. State v. Barnes, 273 Md. 195, 209, 328 A.2d 737, 745-56 (1974). [**1052] Although the statute is to be "liberally construed," see id. at 208, 328 A.2d at 745, its notice provisions are "mandatory and not directory," and the defendant bears the burden of making an appropriate request[***6] for speedy disposition. Thurman v. State, 89 Md. App. 125, 131, 597 A.2d 997, 1000 (1991), cert. denied, 325 Md. 397 (1992). The defendant must present "competent evidence of those conditions precedent necessary for bringing the provisions of the statute into play." Barnes, 273 Md. at 209, 328 A.2d at 745; Bey v. State, 36 Md. App. 529, 533, 373 A.2d 1291, 1294 (1977). Once the request is properly made, however, the defendant must be brought to trial within 120 days of the request, absent good cause for the granting of a continuance. § 616S(b). The burden rests on the State timely to bring the defendant to trial. People v. Walker, 113 A.D.2d 448, 496 N.Y.S.2d 871, 874 (1985); State v. Ferguson, 41 Ohio App. 3d 306, 535 N.E.2d 708, 713 (1987); Commonwealth v. Thornhill, 411 Pa. Super. 382, 601 A.2d 842, 845 (1992); Nelms v. State, 532 S.W.2d 923, 926-27 (Tenn. 1976).[***7] Failure timely to bring the defendant to trial results, upon the defendant's request, in dismissal without prejudice. § 616S(e).

   The State argues that the "appropriate court" was the circuit court, because the District Court did not have jurisdiction to try the original felony charges against Brooks. The State argues further that "even if Brooks's original filing was made with the appropriate court, once he was notified of the new charging document in circuit court, the burden was on him to notify the circuit court of his intent to invoke the speedy trial provisions of the IDA." Brief of Respondent at 5. Both of these arguments fail.

   We hold that Brooks filed his request in the appropriate court when, on June 29, 1990, he sent his request to the District Court. The detainer lodged against Brooks was[*104] based solely on the statement of charges issued by the District Court. As of June 29, 1990, the District Court was the only court in which charges arising out of the underlying incident were pending against Brooks.

    Although "appropriate court" is not defined in the IDA, it is defined in the Interstate Agreement on Detainers Act, Art. 27, §§ 616A through 616R. The provisions of the IDA[***8] are to be construed in harmony with, and supplemented by, the Interstate Detainer Act. Barnes, 273 Md. at 206-07, 328 A.2d at 744. In Barnes, this Court stated that because "appropriate court" was not defined in the IDA, the definition in the Interstate Agreement on Detainers Act was to be applied. Id. at 207-08, 328 A.2d at 744. Section 616K(a) defines "appropriate court" to mean "any court in this State having criminal jurisdiction which is part of the circuit court of a county, the District Court or any other court than these specified courts." The definition does not require that an appropriate court have jurisdiction to try the particular charges at issue; rather, an appropriate court need only have some form of "criminal jurisdiction."

   Reflection on the State's argument manifests a number of reasons why the General Assembly could not have intended the "appropriate court" to be the circuit court under the facts presented here. First, limiting the "appropriate court" to the court that would have jurisdiction to try the charges requires that the detainee understand not only that jurisdiction[***9] to try the charges is determinative, but also how the line of division is drawn between the jurisdiction of the District Court and of the circuit courts in criminal causes. A glance at CJ §§ 4-301 and 4-302 demonstrates that locating that line with respect to any particular charge or series of charges requires a degree of sophistication that the General Assembly could not have expected the detainee to possess. All detainees have rights under the IDA, but all detainees do not necessarily have a right to counsel provided by the State on the charges underlying the detainer. [*105]

   When the detainer was lodged against Brooks, he was in the custody of the Division of Correction at the Maryland Reception, Diagnostic & Classification Center in Baltimore. Under § 616S(c), the "warden, superintendent, [or] director . . . having custody of the prisoner, within 15 days of [**1053] receiving notice of the detainer and of the untried . . . complaint, upon which it is based, shall inform the prisoner in writing of the source and contents of the detainer lodged against him . . . ." In the instant matter, the Warden/Superintendent of the Reception, Diagnostic & Classification Center could only have advised Brooks[***10] that "the source" of the detainer lodged against him was a specific case in the District Court, because the warrant that served as the detainer issued out off the District Court at Annapolis in a specific case. It is an unreasonable construction of the IDA to require a detainee to file notice in the circuit court because of its jurisdiction to try the charges on the merits, while at the same time requiring the custodian of the prisoner to advise the prisoner that the detainer originates from a different court.

   A requirement that the filing be made with the court having jurisdiction to try the charge also conjures up the image of an employee in the clerk's office of a circuit court wandering around looking for a file in which to put the request filed by a detainee. Here, when Brooks filed his notice in the District Court, nothing was pending in the Circuit Court for Anne Arundel County.

   That the District Court was the "appropriate court" in the instant case is supported by case law from other states. See, e.g., People v. Lopez, 41 Colo. App. 206, 587 P.2d 792, 795 (1978) (time within which to try felony charges begins running with filing[***11] of notice in court of limited jurisdiction, despite later transfer of prosecution to court of general jurisdiction); Huddleston v. Jennings, 723 S.W.2d 381, 382 (Ky. Ct. App. 1986) (defining appropriate court as "the court in which the entered indictment, information or complaint forming the basis for the detainer was pending when the detainer was lodged" (emphasis added)); State ex rel. Kemp v. Hodge, 629 S.W.2d 353, 358 (Mo. 1982); cf. Brimer v. State,[*106] 195 Kan. 107, 402 P.2d 789, 793 (1965) (request made to court in which charges were not yet pending but to which charges were later transferred did not satisfy statute; detainee required to notify lower court from which detainer issued and where charges were pending at time of notice).

   The question remaining, then, is whether the later filing of the criminal information in the circuit court nullified Brooks's compliance and required him to file a new request with the circuit court.

   The State argues that once the information was filed, the burden was on Brooks to file a new speedy disposition request in the circuit court. This [***12]argument contravenes the rule that, once the defendant has complied with the notice provisions of the IDA, the burden shifts to the State to bring the defendant to trial within the prescribed time period. Walker, 113 A.D.2d 448, 496 N.Y.S.2d at 874; Ferguson, 41 Ohio App. 3d 306, 535 N.E.2d at 713; Thornhill, 411 Pa. Super. 382, 601 A.2d at 845; Nelms, 532 S.W.2d at 926-27.

   It is not consistent with the IDA or the Maryland Rules to require a defendant, who has complied with the notice provisions, to send a new notice under the circumstances here. When the criminal information was filed in the circuit court, the District Court record was transmitted to the circuit court pursuant to Maryland Rule 4-221(h). That rule places burdens on the State's Attorney and the District Court clerk.
 
"Upon the filing of a charging document in the circuit court [after the District Court preliminary hearing], the State's Attorney shall promptly give notice of the filing to the clerk of the District Court . . . . When so notified, the [***13]clerk shall immediately forward all papers to the clerk of the circuit court in which the charging document is filed."
 
Rule 4-221(h) does not place a burden on the defendant to ensure that all documents in the District Court file, including any IDA request, are forwarded; that burden rests on the District Court clerk. Thus, Maryland procedure contemplates[*107] that the District Court and the circuit court files will be merged and that any detainee's notice, filed in the District Court while it was the appropriate court, will be transmitted to the circuit court. Meanwhile, the State's Attorney has a duplicate of the request for disposition of the charges under the IDA and is thereby alerted that the 120 day period is running. [**1054]

   In Huddleston, 723 S.W.2d 381, the Court of Appeals of Kentucky faced a scenario substantially similar to that presented here and refused to place on the defendant the burden for which the State contends here. The defendant complied with the Kentucky IDA (KRS 500.110) by filing his request in the district court, the Court where the complaint had been filed, where charges were pending, and from which the detainer had issued. Thereafter[***14] a grand jury indicted the defendant on the same charges pending in the district court, causing the case to be transferred to the circuit court. Id. at 382. The State failed timely to try the defendant, and the defendant moved to dismiss. The State argued that the appropriate court to which a speedy trial request should have been sent was the circuit court. Rejecting that argument, the Kentucky court stated:

   "Where there has been a later indictment as a result of which the detainer charge is no longer pending in the lower court, it does not seem an unreasonable burden to place on the county attorney to forward the request to the Commonwealth attorney, and upon the district court to forward the request to the circuit court. To require another request to be made by the prisoner once he discovers the charge is now pending in another court would inevitably result in delays defeating the very purpose of the statute. We believe the intent of the statute is that the 180 days begin to run once an otherwise proper request is made to the court in which the detainer charge was pending when lodged . . . ."
 
Id. at 383 (emphasis[***15] added).

   Lopez, 41 Colo. App. 206, 587 P.2d 792, also addressed the issue presented here. In Colorado, a county court is the[*108] trial court of limited jurisdiction. Lopez held "that where a criminal proceeding is initiated with the filing of a criminal complaint in county court, a request for disposition of detainer filed in the county court commences the running of the . . . statutory period." Id. at 795.

   Here, as in Lopez, "we are . . . dealing with a continuous proceeding and not a dismissal." Id. Accordingly, Brooks's motion to dismiss the information should have been granted, without prejudice.

   The fact that the dismissal is without prejudice does not make Brooks's rights under the IDA illusory or render the error harmless. Brooks is entitled, under the IDA, to a new exercise of prosecutorial discretion as to whether the charges should be brought anew.
 
JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED. CASE REMANDED TO THAT COURT FOR THE ENTRY OF A JUDGMENT VACATING THE JUDGMENT OF CONVICTION ENTERED BY THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AND REMANDING THIS CAUSE TO THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY [***16]  WITH INSTRUCTIONS TO DISMISS THE INFORMATION WITHOUT PREJUDICE. COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID BY ANNE ARUNDEL COUNTY, MARYLAND. 

MAYOR AND CITY COUNCIL OF BALTIMORE and EDWARD V. WOODS v.MARYLAND COMMITTEE AGAINST THE GUN BAN 
No. 27, September Term, 1992
 
COURT OF APPEALS OF MARYLAND
 
329 Md. 78; 617 A.2d 1040; 1993 Md. LEXIS 6

 January  13, 1993, Filed

   PRIOR HISTORY: [**1]

   Certiorari to Court of Special Appeals (Circuit Court for  Anne Arundel  County). Lawrence H. Rushworth, JUDGE

DISPOSITION: JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED. CASE REMANDED TO THE COURT OF SPECIAL APPEALS FOR THE ENTRY OF A JUDGMENT AFFIRMING THE APPEALED JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AND VACATING THE STAYED ORDER OF THAT COURT. COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID BY MARYLAND COMMITTEE AGAINST THE GUN BAN.

CORE TERMS:  inspection, custodian, police department, disclosure, public interest, public record, confidentiality, police officers, confidential, investigator, investigations conducted, enumerated, inspect, patient, law enforcement, police investigation, political committee, accusations, personnel, public records, dissemination, disclose, civilian, surveillance, misconduct, severable, anonymous, definitional, personal information, confidential source

COUNSEL: ARGUED BY William R. Phelan, Jr. (Neal M. Janey, City Solicitor; Ambrose T. Hartman, Deputy City Solicitor; Frank C. Derr, all on brief) all of Baltimore, Maryland, For Petitioner.
 
ARGUED BY Howard J. Fezell of Frederick, Maryland, For Respondent.

JUDGES: ARGUED BEFORE Murphy, C. J., Eldridge, Rodowsky, McAuliffe, Chasanow, Karwacki, and Bell, JJ.

OPINIONBY: RODOWSKY

OPINION: [*1041]

   Opinion by Rodowsky, J.

   In this case inspection of public records is sought under the Maryland Public Information Act (the Act), Maryland Code (1984, 1992 Cum. Supp.), §§ 10-611 through 10-628 of the State Government Article. n1 The records were generated in the course of an investigation, conducted by the Internal Investigation Division (IID) of the police department in Baltimore[**2] City, that resulted from one or more civilian complaints about the conduct of police officers during the service of a subpoena duces tecum. Following the police department's refusal to disclose, a circuit court held that the records, as intra-agency memoranda and as records of an investigation by a police department, were exempt from disclosure. The Court of Special Appeals concluded that neither exemption applied. Maryland Comm. Against the Gun Ban v. Mayor & City Council of Baltimore, 91 Md. App. 251, 603 A.2d 1364 (1992). We granted cross-petitions for certiorari, and, as explained below, we shall hold that disclosure was permissibly denied under provisions of the Act relating to records of investigations conducted by a police department.

 n1 Unless otherwise indicated all statutory references are to Md. Code (1984, 1992 Cum. Supp.), State Government Article.

   I

   The Act declares that "all persons are entitled to have access to information about the affairs of government[**3] and the official acts of public officials and employees." § 10-612(a). "To carry out the [foregoing right], unless an unwarranted invasion of the privacy of a person in interest would result, [the Act is to] be construed in favor of permitting inspection of a public record." § 10-612(b). A "'public record' means . . . any documentary material" that is made or received "by a unit or instrumentality of the State government or of a political subdivision . . . in connection with the transaction of public business." § 10-611(f)(1)(i); see Maryland Attorney General, Public Information Act Manual 4 (1987). The IID records at issue in this matter are public records as defined in the Act. At issue is whether those records fall within any exclusion from the general rule of disclosure.

   Section 10-616 requires custodians to deny inspection of specific types of public records. Those include records relating to adoption, welfare, retirement, hospital, student, and personnel records. Section 10-617 requires custodians to deny inspection of a part of a public record that contains specified information, including certain medical, psychological, sociological, commercial and financial information. [**4] Section 10-618 permits custodians to deny inspection to a third category of records. The petitions for certiorari in this case present questions concerning two types of records in this third category, namely, intra-agency memoranda (§ 10-618(b)) and records of police department investigations (§ 10-618(f)). There is no need in this case to focus on subsection (b), however, because the provisions relating to records of police department investigations are dispositive. Section 10-618(a) and (f) provide:

   "(a) In general. -- Unless otherwise provided by law, if a custodian believes that inspection of a part of a public record by the applicant would be contrary to the public interest, the custodian may deny inspection by the applicant of that part, as provided in this section.
 
   . . . .

   (f) Investigations. -- (1) Subject to paragraph (2) of this subsection, a custodian may deny inspection of:

   (i) records of investigations conducted by the Attorney General, a State's Attorney, a city or county attorney, a police department, or a sheriff;

   (ii) an investigatory file compiled for any other law enforcement, judicial, correctional, or prosecution purpose; or

   (iii) records that contain[**5] intelligence information or security procedures of the [*1042] Attorney General, a State's Attorney, a city or county attorney, a police department, a local correctional facility, or a sheriff.

   (2) A custodian may deny inspection by a person in interest only to the extent that the inspection would:

   (i) interfere with a valid and proper law enforcement proceeding;

   (ii) deprive another person of a right to a fair trial or an impartial adjudication;

   (iii) constitute an unwarranted invasion of personal privacy;

   (iv) disclose the identity of a confidential source;

   (v) disclose an investigative technique or procedure;

   (vi) prejudice an investigation; or

   (vii) endanger the life or physical safety of an individual."

   Section 10-618(f)(2) permits denial of inspection "by a person in interest," but "only to the extent that the inspection would" produce one of the seven results enumerated in paragraph (f)(2). Under the Act, "person in interest" is a definitional term that means, in the context presented here, "a person . . . that is the subject of a public record or a designee of the person." § 10-611(e)(1). If the person seeking to inspect the record of a police department investigation is not "a person[**6] in interest," then the rule of § 10-618(f)(1) applies. Under (f)(1), the custodian may deny inspection. But (f)(1) must be read in conjunction with the general condition to § 10-618 -- "if [the] custodian believes that inspection of a part of a public record by the applicant would be contrary to the public interest." § 10-618(a); see Cranford v. Montgomery County, 300 Md. 759, 771-72, 481 A.2d 221, 227 (1984). Thus, if the person seeking inspection of the records of a police department investigation is not a person in interest, and if the custodian believes that disclosure of the records of the police investigation is not in the public interest, the Act does not require disclosure. n2 

 n2 The Act also contemplates that disclosure may be "otherwise provided by law." § 10-618(a). There is no contention in the instant action that any statute, other than the Act, requires that the records be disclosed. Accordingly, if the Act does not require inspection, then the common law rule applies under which "it is generally held that police records are confidential." Whittle v. Munshower, 221 Md. 258, 261, 155 A.2d 670, 672 (1959). 

[**7]

   II

   The sole plaintiff in the action before us is Maryland Committee Against the Gun Ban (the Committee). It is a "political committee" under the Election Code, meaning "any combination of two or more persons appointed by a candidate or any other person or formed in any other manner which assists or attempts to assist in any manner the promotion of the success or defeat of any candidate, candidates, political party, principle or proposition submitted to a vote at any election." Md. Code (1957, 1990 Repl. Vol., 1992 Cum. Supp.), Art. 33, § 1-1(a)(14). Every political committee must appoint and constantly maintain a chairperson and a treasurer. Id. § 26-4(a). The treasurer of a political committee has obligations imposed by the Fair Election Practices Act relating to recordkeeping and reporting of receipts and disbursements of the political committee. Id. subtitle 26.

   Chapter 533 of the Acts of 1988 prohibited distribution in Maryland of guns that were determined, by a newly created agency, to meet certain criteria. Chapter 533 had been petitioned to referendum at the general election of November 1988. At the time relevant to this case, the Committee was seeking the defeat[**8] of Chapter 533 on referendum.

   The Baltimore City political headquarters of the Committee was in the offices of Vanguard Communications Company at 2506 North Calvert Street. On the evening before the general election, officers of the Baltimore City Police Department came to that address to serve a subpoena duces tecum for Committee records. The evidence does not reveal precisely what the alleged misconduct of any police officer might have been. n3 The Director of the IID, [*1043] Major Kenneth L. Blackwell (Blackwell), testified that accusations were made against two members of the Baltimore City Police Department that "encompassed excessive force, discourtesy and . . . misconduct" at the Committee's headquarters on election eve. These accusations precipitated an IID investigation, the records of which are the subject of the request under the Act that is now before us.

 n3 Conduct of police officers is described in witnesses' statements that were marked for identification, but not admitted into evidence. No issue was presented by the Committee on appeal that the statements of these witnesses should have been admitted into evidence.

[**9]

   IID investigations are conducted pursuant to General Order 48-77 of 1 July 1977, issued by the Baltimore City Police Commissioner. That order recites that the policy of the agency is "to accept and investigate complaints against its members of alleged misconduct and based upon its findings to exonerate the innocent, establish the guilt of wrongdoers and justly determine disciplinary action with promptness." IID investigations are considered confidential by the Department. Paragraph VII of the order explains:
 
"Mistaken or even deliberately false reports and accusations are made against members of the department. In some instances, the most conscientious and hardworking members will be the subject of such reports. Accordingly, in order to insure the integrity of the police department it is necessary to investigate completely and thoroughly all reports and accusations from all sources. This must be done. At the same time, the reputations and good names of innocent members must be protected. This is important in the interest of fairness, and thus, to the effectiveness of police operations. In view of the aforementioned, investigations are considered confidential and therein so [**10] handled."

   In the Baltimore City Police Department, an IID investigation report consists of descriptions of all steps in the investigation, all statements taken, a summary and conclusion, and comments by persons in the chain of command. The investigation is subjected to a series of reviews to determine that the investigation is complete and to obtain recommendations as to disposition. Investigations of law enforcement officers are subject to the Law Enforcement Officers' Bill of Rights (LEOBR), Md. Code (1957, 1992 Repl. Vol.), Art. 27, §§ 727 through 734D.

   Under General Order 48-77, annex A, P III.H, the investigator, upon completion of the investigation, classifies the complaint as "sustained," "not sustained," "exonerated," or "unfounded." These classifications respectively mean that the allegation is supported by sufficient evidence, that there is insufficient evidence either to prove or disprove the allegation, that the incident complained about occurred but was lawful and proper, and that the allegation is false or not factual. In the instant matter it appears that the highest command level at which the investigation report was reviewed was that of the Deputy Commissioner of the[**11] Administrative Bureau. That superior officer concurred in the recommended conclusion that the allegations were not sustained. Cases in which the allegations are not sustained "will be regarded as confidential and the records of such cases will be retained only in the files of the Internal Investigation Division and are not a matter of public information." General Order 48-77, annex A, P III.H.

   Further, because the instant matter involved allegations of excessive force and of discourtesy, the IID report also was reviewed by the Complaint Evaluation Board which would have submitted its findings and recommendations to the Police Commissioner's office. The Complaint Evaluation Board was created by Chapter 889 of the Acts of 1975, which is codified as Code of Public Local Laws of Baltimore City (1979), §§ 16-41 through 16-50 (Local Code). The board is composed of the State's Attorney of Baltimore City, the Attorney General of Maryland, the City Solicitor of Baltimore City, the Police Commissioner of Baltimore City, the Executive Director of the Legal Aid Bureau, Inc., the Executive Director of the Maryland Human Relations Commission, and the Executive Director of the Baltimore City Community[**12] Relations Commission, or their delegates. Local Code § 16-48 provides that "records containing the names or identification of police personnel, complainants, investigators [*1044] and witnesses may not be disclosed or released to the general public."

   In the instant IID investigation the Deputy Commissioner's conclusion of "not sustained" was reached by April 1989. In a letter of May 31, 1990, the Committee, through counsel, requested permission to inspect and obtain copies of the IID report. No individual person joined with the Committee in that request. Major Blackwell, the custodian, by letter of July 3, 1990, denied inspection of the requested records relying, inter alia, on § 10-618(f). n4

 n4 Counsel who made the May 31, 1990, request for the Committee later wrote to the Baltimore City Police Department requesting copies of the statements given to the IID investigators by specifically identified civilians. The custodian interpreted these requests to be requests made by the witnesses through their agent. The statements were furnished. The trial court did not think that those disclosures had any significance to the decision in this case; nor do we. The disclosures apparently rested on an implicit determination by the custodian that no public interest purpose would be served by withholding from those witnesses their respective statements.

[**13]

   The Committee filed the instant action seeking judicial review in the Circuit Court for Anne Arundel County. See § 10-623. No individual joined the Committee as a complainant in this action. One of the defendants is Edward V. Woods, Police Commissioner of Baltimore City, the ultimate custodian of the requested public records. His joinder is sufficient to make this action justiciable. n5

 n5 Whether the Mayor and City Council of Baltimore, a municipal corporation, is a proper party to this action, and whether the State of Maryland, which was joined by amendment of the complaint and later dismissed by the circuit court, would be a proper party, were issues addressed by the circuit court, but they are not included in the petitions for certiorari. Cf. Clea v. Mayor & City Council of Baltimore, 312 Md. 662, 668-70, 541 A.2d 1303, 1306-07 (1988) (holding Police Department of Baltimore City to be a state agency for purposes of respondeat superior liability).

   At trial Major[**14] Blackwell was the principal witness for both sides. Using the seven circumstances enumerated in § 10-618(f)(2) as a checklist, counsel for the Committee developed facts which the Court of Special Appeals summarized as follows:
  
"This investigation had been concluded without further action at least a year before the request for access to the report was made, and so there was no investigation to be prejudiced by disclosure ((f)(2)(vi)). The department, through counsel, conceded at Major Blackwell's deposition that there was no law enforcement proceeding with which disclosure could interfere ((f)(2)(i)). The department also stipulated that, to its knowledge, there was no impending trial or adjudication which disclosure could prejudice ((f)(2)(ii)) and that disclosure would not cause danger to or imperil the life or safety of any individual ((f)(2)(vii))."
 
Maryland Committee, 91 Md. App. at 264, 603 A.2d at 1370-71.

   The Committee also introduced the following portion of Major Blackwell's deposition:

   "[Q.] Could you tell me how the disclosure of any of those records to the Plaintiff would disclose the identity of a confidential source? [**15]

   "[A.] Because there are no anonymous sources in this particular investigation, I can't honestly see where it would have a negative impact on anybody involved."

   In open court Major Blackwell explained that "there is pretty much a big concern with individuals coming forward to share what information that they have," both within and without the police department. He said that IID investigators "certainly aren't revered by the members [of the Department] that [the IID investigators] have to deal with." Likewise, civilians "are very reluctant to share what information [they have] for fear of reprisal, of what sort I can't specify, but they do voice concern with sharing information and having their personal information . . . being disseminated."

   After the testimony was concluded, the circuit court reviewed in camera the IID report. In a written opinion denying inspection the circuit court found that 
 
"in order to conduct such an investigation, confidentiality of any person who [*1045]cooperates with the investigation must be assured. If confidentiality were not maintained, witnesses or other persons with information would be hesitant to cooperate because of a fear of retribution or possible [**16] wrongdoing by the officer being investigated. If all IID investigations were released to the public, it would be extremely difficult to discipline or remove officers who were acting improperly. Clearly it is in the public interest to discipline police officers who act contrary to departmental regulations. Therefore, the court finds the disclosure of the documents would be contrary to public interest."
 
A final judgment was entered.

   The Committee appealed to the Court of Special Appeals. The Committee, however, did not have sealed and transmitted as part of the record on appeal the IID report that was examined in camera by the trial judge. The judge apparently caused the report to be returned to Major Blackwell.

    The Court of Special Appeals reversed. It held that the Committee was a person in interest. 91 Md. App. at 264, 603 A.2d at 1370. Consequently, that court analyzed the Act's exclusion of reports of police department investigations in terms of the seven circumstances enumerated in § 10-618(f)(2), which comprise the only justifications for withholding a police investigation report from a person in interest. Referring to paragraph (f)(2)(iv), [**17] the court said that "Major Blackwell conceded that no anonymous sources were used in the investigation, and so disclosure would not reveal the identity of a confidential source." Id. at 264-65, 603 A.2d at 1371.

   When the mandate of the Court of Special Appeals was issued, the Committee obtained an order from the circuit court directing production of the subject report. In conjunction with our grant of certiorari, this Court stayed the circuit court's order.

   At oral argument in this Court, counsel for the Committee advised us of additional facts that occurred after the trial court record closed. On November 1, 1991, certain individuals who were on the premises of the Committee's headquarters on the evening of November 7, 1988, filed a complaint in the United States District Court for the District of Maryland alleging that certain police officers violated Title 28, U.S.C. § 1983. At least some of the plaintiffs in the federal action are represented by the same attorney who is counsel for the Committee in the action before us. During pretrial discovery in the federal action the court ordered production of the IID report, subject to a protective [**18]order limiting use of the report to the federal court action and otherwise prohibiting its dissemination. Counsel for the Committee frankly acknowledges to us that the action before us continues because he "would like to obtain [the report] for use on behalf of the Committee without any restrictions as to that use."

   The Committee also acknowledged in oral argument in this Court that the Committee, as distinguished from individual persons, did not file any complaint with the Baltimore City Police Department concerning the conduct of any officers on the evening of November 7, 1988.

   III

   The Committee is not a person in interest in the context of § 10-618(f)(2). We shall assume, arguendo, that a political committee under the Election Code is a "person" as that term is used in the State Government Article. § 1-101(d). n6 The Committee, however, is not a person "in interest," because it is not "the subject of" the IID report. § 10-611(e). The two police officers on whom the investigation of accusations of misconduct focused clearly were subjects of the IID report.

 n6 Section 1-101(d) reads:
 
"'Person' means an individual, receiver, trustee, guardian, personal representative, fiduciary, or representative of any kind and any partnership, firm, association, corporation, or other entity."

[**19]

   The Court of Special Appeals reasoned that under the Act there could "be more than one category of 'subject' or 'interested person.'" 91 Md. App. at 263, 603 A.2d at 1370. That court said that, under the General Order of the Police Commissioner, IID investigations "are usually triggered by a [*1046] complaint that someone makes about the conduct of an officer or employee; that, it appears, was the case here." Id. As we have seen from the admission by the Committee at argument in this Court, the Committee, as such, did not complain. Accordingly, we need not opine on whether such a complainant, in addition to the officers, may be a "person in interest" under § 10-618(f)(2).

   The Court of Special Appeals also found it "evident, then, that the conduct of the police was, to some extent at least, a response to the conduct and statements of [the Committee] and its employees." Id. at 264, 603 A.2d at 1370. We shall not dwell on whether there is evidence to support that finding. This is because we do not agree with the intermediate appellate court's conclusion that "in that circumstance, we would be hard pressed[**20] to conclude that [the Committee], through its employees, was not also 'the subject' of the investigation and the report." Id. "Person in interest" under the Act is more narrowly focused.

   For example, under the Act, "a custodian shall deny inspection of a retirement record for an individual." § 10-616(g)(1). There are three exceptions to that rule. Under § 10-616(g)(2), "[a] custodian shall permit inspection . . . by the person in interest," by the appointing authority, and, after the death of the individual, by certain claimants to the retirement benefits. Clearly the "subject" of the retirement records is the present or prospective retiree. Even though the employing, governmental entity has an interest in the records, that entity is not the "subject" of the records. Consequently, express provision for inspection by the appointing authority is needed to go beyond the definitional phrase, "person in interest." See § 10-616(g)(2)(ii). Similarly, personnel records under § 10-616(i) are not to be disclosed, but inspection is permitted by "(i) the person in interest; or (ii) an elected or appointed official who supervises the work of the individual." § 10-616(i)(2). Of like effect[**21] is the treatment of student records. The custodian "shall deny inspection" of certain student records, § 10-616(k)(1), but the "custodian shall permit inspection by . . . the person in interest," i.e., the student, or by the student's supervisor, § 10-616(k)(2).

   The fact that individual persons who were working toward the goal of the Committee, either as volunteers, paid employees, or independent contractors, interfaced with the police officers who thereby became subjects of the investigation is insufficient to make the Committee a "person in interest." That conclusion is forcefully illustrated by 71 Op. Att'y Gen. 297 (1986). The question presented was whether the tape recording of a hearing for the involuntary admission of a patient to a mental health facility could be disclosed to a hospital whose professional staff had participated at the hearing. The Attorney General recognized that the record could be useful in the facility's treatment of the patient. The Act, however, in § 10-617(b), mandates denial of inspection of records containing medical or psychological information, but permits "the person in interest to inspect the public record to the [**22]extent permitted under" a provision of the Health-General Article. The Attorney General concluded that "only the patient (or, as appropriate, the patient's representative), and no one else, is to be regarded as the 'person in interest' of a public record that contains medical and psychological information about that patient." 71 Op. Att'y Gen. at 302. Inspection must be denied even at the request of one, other than the patient, who had participated in the hearing. Id. at 303.

   The Act's history covering reports of police investigations also makes clear that the "person in interest" referred to in § 10-618(f)(2) is the person who is investigated. As originally enacted by Chapter 698 of the Acts of 1970, the Act became codified in Md. Code (1957, 1975 Repl. Vol.), Art. 76A. Section 3(b)(i) of former Art. 76A addressed records of investigations conducted by a police department, but it did not contain any special provisions concerning inspection by a person in interest. "Person in interest" was, however, a definitional term in the original Act, Md. Code (1957, 1975 Repl. Vol.), Art. 76A, § 1(h), that was employed in other exceptions[**23] to the general rule of disclosure. What is today paragraph [*1047] (2) of § 10-618(f) came into the Act by Chapter 1006 of the Acts of 1978.

   During 1974, metropolitan Baltimore daily newspapers published articles describing surveillance activities and the maintenance of dossiers by the Baltimore City Police Department concerning persons who were politically active in the community. In January of the 1975 General Assembly session, the late Senator Verda Welcome of Baltimore City obtained adoption of Senate Resolution No. 1, calling for a legislative investigation into intelligence surveillance by police throughout the State. The Senate Constitutional and Public Law Committee (the Senate Committee) was designated to investigate. It reported December 31, 1975. See Report to the Senate of Maryland, Senate Investigating Committee Established Pursuant to Senate Resolutions 1 and 151 of the 1975 Maryland General Assembly (1975) (the Senate Committee Report).

   The Senate Committee found, inter alia, that
 
"the privacy of citizens is directly affected by the collection, maintenance, use and dissemination of personal information especially when one considers that information gathered by intelligence[**24] agencies as well as other governmental departments is widely disseminated to local, state and federal agencies. The opportunity for an individual to secure employment . . . may well be endangered by the dissemination of improper or erroneous personal information."
 
Senate Committee Report at 73. Concluding that it was "an impossible task to define areas of legitimate police concern for surveillance and information-gathering practices without adversely affecting proper law enforcement activities," the Senate Committee "deemed it both necessary and preferable to provide for some type of outside vigilance wherein citizens are afforded the right to view those materials in the possession of law enforcement agencies respecting them personally." Id. (emphasis added). As a result, the Senate Committee recommended, inter alia, that the then Act be amended to provide "that a 'person [in] interest' as defined in the statute may be denied the right to inspect records referred to in subsection (b)(i) thereof only to the extent that the production of such records would hamper or jeopardize valid law enforcement activities as particularly defined." Id. at 74.

    That recommendation[**25] was incorporated into Chapter 1006 of the Acts of 1978. It added to former Art. 76A, § 3(b)(i), the proviso that "the right of a person in interest to inspect the records may be denied only to the extent that the production of them would" generate one of the circumstances currently enumerated in subparagraphs (i) through (vii) of § 10-618(f)(2). See Acts 1978, ch. 1006. Consequently, there was no legislative purpose in the addition of present paragraph (2) of § 10-618(f) to enlarge the class of those who could exercise the right of inspection beyond those who were the subjects of the particular police investigation.

   The administrative interpretation of the Act by the Maryland State Police concerning records of investigations conducted by its Internal Affairs Unit is also consistent with the interpretation of § 10-618(f) which we have set forth above. Distinction is made between "Access Rights of the Person in Interest" and "Disclosure of Records to Third Parties." See Final Report, Governor's Information Practices Commission 308 (1982). As to the former, "the accused officer has access to virtually all of the Internal Affairs Records pertaining to him as a consequence[**26] of the [LEOBR]," while as to the latter, "Internal Affairs Records are not released to third parties without the consent of the officer in question." Id.

   Here, the Committee is not the object of a surveillance or the subject of the investigation. Section 10-618(f)(2) is inapplicable.

   IV

   Under the applicable provision of the Act, § 10-618(f)(1), the rule is that "a custodian may deny inspection of . . . records of investigations conducted by . . . a police department." Denial is permissible "if a custodian believes that inspection of a part of a public record by the applicant would be contrary to the public interest." [*1048] § 10-618(a). Because the Committee is not a person in interest, its request to inspect must be viewed as if it were made by the press or by any citizen. Indeed, the admitted motive of the Committee is simply to disseminate the report. The custodian in this case, however, believed that inspection, i.e., dissemination, would be contrary to the public interest because it would be unfair to the officers who were the subject of the investigation and against whom the allegations were "not sustained," and because confidentiality promotes witness cooperation by civilians[**27] and by sworn personnel. The circuit court agreed.

   The Committee points to Major Blackwell's statement that there were no "anonymous" sources in the particular investigation at hand as undercutting confidentiality. This case does not involve an anonymous tipster; nor does it involve a "usually reliable source" whose identity is kept secret throughout the proceedings, but whose information forms part of probable cause. Here we deal with persons whose identities are known to the investigators and to the police officials who reviewed the investigation. The identities are known also to the Complaint Evaluation Board. Had disciplinary charges been formally filed and a disciplinary hearing conducted, the witnesses both in support of and in defense of the charges ordinarily would be identified to the hearing officers and on judicial review. On the other hand however, where, as here, the investigation concludes with a determination that the allegations are not sustained, fairness to the investigated officers and the avoidance of needless publicity to the cooperating witnesses, with possible inhibiting effects on future investigations, justify on public interest grounds the custodian's denial [**28]of inspection to one other than a person in interest.

   That there is a public interest in the confidentiality of investigations of police officers is demonstrated by the provisions of LEOBR § 728(b)(5)(iii) and (iv). In order for law enforcement officers who are under investigation to obtain a copy of any exculpatory information in the investigatory file, the officers and their representatives must execute a confidentiality agreement "to not disclose any of the material contained in the record for any purpose other than to defend the officer." LEOBR § 728(b)(5)(iv)1. Further, officers who are under investigation cannot obtain non-exculpatory matter in the file or the identity of confidential sources, even by executing a confidentiality agreement. Id. § 728(b)(5)(iii)1 and 2. Contrary to the Committee's contention, the public interest in the confidentiality of investigations is broader than protecting the identity of confidential sources.

   The public interest in the confidentiality of police department investigations of officers against whom complaints regarding alleged acts of excessive force, or even of discourtesy, have been lodged also is embodied in Local Code § 16-48 ("Records[**29] containing the names or identification of police personnel, complainants, investigators and witnesses may not be disclosed or released to the general public.").

   In other words, the seven circumstances listed in § 10-618(f)(2) that permit the custodian to deny records of a police investigation to a party in interest are illustrative of the concerns that would make disclosure contrary to the public interest. Those seven circumstances, however, are not exclusive of the public interest concerns that can justify a refusal to permit inspection under § 10-618(f)(1). See 64 Op. Att'y Gen. 236, 241-42 (1979).

   V

   The Committee also contends that, even if the IID report falls within an exception to the general rule of disclosure, there must be a further determination whether one or more parts of the public record are severable and disclosable. Section 10-614(b)(3) in part provides that "[a] custodian who denies the application shall . . . (iii) permit inspection of any part of the record that is subject to inspection and is reasonably severable." Section 10-618(a) speaks of denying inspection "of a part of a public record by the applicant [that] would be contrary[**30] to the public interest." Where, as here, the request for inspection relates to the record of a police department investigation and the request is made by other than [*1049] a person in interest, the severability provisions of the Act operate in a relatively restricted fashion. This can be illustrated by comparing paragraph (1) and paragraph (2) of § 10-618(f).

   Under paragraph (2), inspection may be denied to the person in interest "only to the extent" that the inspection would give rise to one of the seven enumerated circumstances. That statutory mandate requires analyzing the investigation file material in order to distinguish between that which reflects one or more of the enumerated circumstances and that which does not. In contrast, when the request to inspect is made by one other than a person in interest and paragraph (1) applies, the "custodian may deny inspection of . . . records of investigations conducted by . . . a police department." Permissible denial applies to the entire record, to the extent that inspection would be contrary to the public interest.

   In the instant matter the IID report has already been severed, at the request of specific witnesses who were interviewed in the[**31] course of the investigation and who obtained copies of their own statements. The public interest in maintaining confidentiality of the records of investigation does not prevent those limited disclosures. The Committee, on the other hand, was not a witness, and the report is not severable as to it on that ground.

   From the standpoint of the Committee, as a third party to the investigation, a public interest in maintaining confidentiality applies, and the IID report is not severable on the record before us. The Committee has not presented the basis on which it contends that the record of a police investigation should be severed between the disclosable and the confidential. In any event, we are unable to review, from the standpoint of the § 10-618(f)(1) exception to disclosure, the circuit court's refusal to sever any part of the IID report, because the report has not been included in the record on appeal.

   For all of the foregoing reasons, we hold that the custodian permissibly denied inspection of the IID report in this case.
 
JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED. CASE REMANDED TO THE COURT OF SPECIAL APPEALS FOR THE ENTRY OF A JUDGMENT AFFIRMING THE APPEALED JUDGMENT [**32] OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AND VACATING THE STAYED ORDER OF THAT COURT. COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID BY MARYLAND COMMITTEE AGAINST THE GUN BAN. 

Robert Lester TRACEY v. Ruth Marie TRACEY 
No. 156, September Term, 1991
 
COURT OF APPEALS OF MARYLAND
 
328 Md. 380; 614 A.2d 590; 1992 Md. LEXIS 172

 October  29, 1992, Filed

   PRIOR HISTORY: [***1]

   Appeal from the Circuit Court for  Anne Arundel  County pursuant to certiorari to the Court of Special Appeals. Martin A. Wolff, JUDGE

DISPOSITION: JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED, EXCEPT AS TO THAT PART OF THE JUDGMENT WHICH AFFIRMED THAT COMPONENT OF THE JUDGMENT OF DIVORCE ENTERED BY THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY CONDITIONING THE ALIMONY AWARD UPON THE RESPONDENT NOT ENGAGING IN PART-TIME EMPLOYMENT; CASE REMANDED TO THE COURT OF SPECIAL APPEALS WITH INSTRUCTIONS TO REMAND THE CASE TO THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY WITH DIRECTIONS THAT THAT COURT VACATE THAT PART OF PARAGRAPH 3 OF ITS JUDGMENT OF DIVORCE CONDITIONING THE AWARD OF ALIMONY UPON THE RESPONDENT'S NOT "ENGAGING IN PART-TIME EMPLOYMENT IN ADDITION TO HER FULL-TIME JOB WITH THE FEDERAL GOVERNMENT." COSTS TO BE PAID BY THE PETITIONER.

CORE TERMS:  alimony, indefinite, part-time, spouse, self-supporting, wages, equitable, alimony award, full-time, marriage, disparate, divorce, standard of living, rehabilitative, unconscionably, disparity, recipient, temporary, roughly, self-sufficiency, enacting, harsh, Family Law Article, required to work, progress toward, restaurant, projected, becoming, duration, regular

COUNSEL: J. Dennis Murphy, Jr. (Reed & Murphy, on brief), Annapolis, for petitioner.

   Ruth Marie Tracey, Baltimore, pro se.

JUDGES: Murphy, C.J., and Eldridge, Rodowsky, McAuliffe, Chasanow, Karwacki and Robert M. Bell, JJ.

OPINIONBY: MURPHY

OPINION: [*382] [**592] This case involves an award of indefinite alimony and presents the primary question of whether, in computing the award, the trial court erred in disregarding a spouse's wages from a part-time job in addition to her income from regular, full-time work.

    I

   Robert Lester Tracey and Ruth Marie Tracey sought to end their marriage of twenty-six years.  On December 17, 1990, the Circuit Court for Anne Arundel County (Wolff, J.) granted the parties an absolute divorce based on a voluntary separation which had continued uninterrupted for more than the twelve months required by statute.  Maryland Code (1984, 1991 Repl.Vol.) § 7-103(3) of the Family Law Article. The Traceys had previously agreed to an equal division of their marital assets, including the value of their home, life insurance policies, automobiles and other personal property, a mutual fund, and Robert's company savings plan.

   The sole dispute as to financial matters concerned an alimony award to Ruth. The hearing before Judge Wolff revealed that Robert, then forty-eight years old, was a supervisor of technical training for the Baltimore Gas & Electric Company, where he had worked since 1960.  In 1989 he earned, with overtime, $57,973.25 in wages. His [*383] 1990 income, including anticipated stock dividends, projected to roughly $61,000.  The trial court fixed the husband's expenses at $2010 each month, relative to his net monthly income of $3360.

   In 1989, Ruth, who was then forty-six years old, earned $15,381.88 as a full-time civilian payroll technician for the federal government; she had entered government service in 1987.  The 1990 projected wages from this employment reached $16,849.  Ruth supplemented her income with a part-time job at a McDonald's fast food restaurant, where she had begun working soon after the parties' final separation in the spring of 1989.  She worked at the restaurant between twenty and twenty-five hours each week, earning $4.90 per hour.  This part-time work brought in approximately $4,800 annually, thereby producing a total income for Ruth in 1990 of about $21,649.

   Judge Wolff determined that Ruth's basic monthly expenses for food, shelter, clothing, transportation, medical care and other sundries approximated $1730. Her debt service obligations added some $385, resulting in total expenditures of about $2115 per month.  The court established Ruth's net monthly income at roughly $1400; this figure represented her net government salary, projected interest income from her share of the marital assets other than the house, and a $200 contribution toward expenses from an adult son living with her.

   The trial court awarded Ruth indefinite alimony of $300 per month.  In making its calculations, the court expressly excluded Ruth's income from her second job at the McDonald's restaurant. Said Judge Wolff:
"I believe that one is not required to work two jobs.  Neither of them during their lifetimes[s] had two jobs of employment.  They each had one job . . . . And one does not have to work all the hours she does . . . .

   "If she stops work [at McDonald's], that's one thing, and I've figured it based that she says she does not want to continue.  If she goes back to work, then it will be a [*384] change of circumstances.  But no one has to work all the time just to survive where the husband is not doing that . . . .  [I]t was a temporary job that she said [she took] to survive and that's all it was meant to be.  She is not required to work two jobs."
 
The trial court then addressed the issue of alimony:

    "The wife [is] working, and I don't think she can get any better job than she has now.  She is not able to support herself; the husband is.

   "There was the question of rehabilitative alimony, and that's certainly out of the question.  The wife has not done well in school.  Even going back to pick up a couple of courses, they're not going to open up any doors to her . . . . [S]he is at [**593] a level, probably the best that's she going to obtain . . . .

   "I think she is entitled to indefinite alimony because of her needs and the disparity between their relative incomes."
 
The trial court made the alimony contingent upon Ruth not resuming her second, part-time job.  It stated that a return to part-time work in addition to her full-time employment would constitute a change in the parties' circumstances sufficient to justify a modification of the award.  The final judgment of divorce incorporated this condition.

   Robert appealed the award of indefinite alimony in the amount of $300 per month; Ruth did not file a cross-appeal. n1 The Court of Special Appeals affirmed.  Tracey v. Tracey, 89 Md.App. 701, 599 A.2d 856 (1991). His petition for certiorari having been granted, Robert now challenges the result below on three grounds: (1) that the trial court improperly refused to consider Ruth's income from her part-time employment; (2) that it exceeded its statutory discretion in making an award of indefinite alimony; and (3) [*385] that it erred in making an alimony award that was conditioned upon Ruth giving up her part-time work.

n1 Ruth engaged a lawyer to act on her behalf before the circuit court and the Court of Special Appeals.  She represented herself before this Court.

   II

   An alimony award will not be disturbed upon appellate review unless the trial judge's discretion was arbitrarily used or the judgment below was clearly wrong. Brodak v. Brodak, 294 Md. 10, 28-29, 447 A.2d 847 (1982). This standard implies that appellate courts will accord great deference to the findings and judgments of trial judges, sitting in their equitable capacity, when conducting divorce proceedings.  See Rock v. Rock, 86 Md.App. 598, 611-612, 587 A.2d 1133 (1991) (providing an excellent synopsis of prior cases).

   Maryland's present alimony statute was originally enacted by ch. 575 of the Acts of 1980, now codified as §§ 11-101 through 11-111 of the Family Law Article. It was proposed to the legislature by the Governor's Commission on Domestic Relations Laws.  See McAlear v. McAlear, 298 Md. 320, 345-346, 469 A.2d 1256 (1984). The legislature adopted the principal substance of the Commission's proposals.  Aside from variations in arrangement and phrasing, the substantive provisions of the 1980 Act pertinent here remain unchanged in their current form:

   "(a) Court to make determination.  -- (1) The court shall determine the amount of and the period for an award of alimony.

   * * *

   (b) Required considerations.  -- In making the determination, the court shall consider all the factors necessary for a fair and equitable award, including:

   (1) the ability of the party seeking alimony to be wholly or partly self-supporting;

   (2) the time necessary for the party seeking alimony to gain sufficient education or training to enable that party to find suitable employment;

   [*386] (3) the standard of living that the parties established during their marriage;

   (4) the duration of the marriage;

   (5) the contributions, monetary and nonmonetary, of each party to the well-being of the family;

   (6) the circumstances that contributed to the estrangement of the parties;

   (7) the age of each party;

   (8) the physical and mental condition of each party;

   (9) the ability of the party from whom alimony is sought to meet that party's needs while meeting the needs of the party seeking alimony;

   (10) any agreement between the parties; and

   (11) the financial needs and financial resources of each party, including:

   (i) all income and assets, including property that does not produce income;

   (ii) any award made under §§ 8-205 and 8-208 of the article;

   [**594] (iii) the nature and amount of the financial obligations of each party; and

   (iv) the right of each party to receive retirement benefits.

   (c) Award for indefinite period.  -- The court may award alimony for an indefinite period, if the court finds that:

   (1) due to age, illness, infirmity, or disability, the party seeking alimony cannot reasonably be expected to make substantial progress toward becoming self-supporting; or

   (2) even after the party seeking alimony will have made as much progress toward becoming self-supporting as can reasonably be expected, the respective standards of living of the parties will be unconscionably disparate."
 
§ 11-106 of the Family Law Article. Maryland's precise formulation of its alimony statute, especially the portions governing an award of indefinite alimony, is unique among the 50 states.  See Mary Jane Connell, Note, Property [*387]Division and Alimony Awards: A Survey of Statutory Limitations on Judicial Discretion, 50 Fordham L.Rev. 415, 427-432 (1981).

   III

   Robert urges upon us the narrowest, most literal interpretation of the requirement, expressed in § 11-106(b)(11)(i), that a court consider "all income" of a party in determining an alimony award. He argues that the trial court committed reversible error by excluding the $400 monthly that Ruth earned in part-time work at McDonald's.  He asserts further that the $400 extra income, when added to her regular wages as a government clerk, enabled Ruth reasonably to support herself, thereby obviating the need for alimony of any kind.  We do not agree.

   Neither the statute itself nor the 1980 Governor's Commission Report (hereafter the 1980 Report) that spawned it addresses the distinction between income earned from one's principal and full-time position and a temporary, part-time employment.  We therefore undertake to divine the legislative intent. While the language of the statute is the primary source for determining legislative intention, the plain meaning rule of construction is not absolute; rather, the statute must be construed reasonably with reference to the purpose, aim, or policy of the enacting body.  Baltimore Cty. C.A.U.T. v. Baltimore Cty., 321 Md. 184, 203, 582 A.2d 510 (1990); Taxiera v. Malkus, 320 Md. 471, 480, 578 A.2d 761 (1990); Rucker v. Comptroller of the Treasury, 315 Md. 559, 565, 555 A.2d 1060 (1989); Kaczorowski v. City of Baltimore, 309 Md. 505, 513, 525 A.2d 628 (1987). The Court will look at the larger context, including the legislative purpose, within which statutory language appears.  Morris v. Prince George's County, 319 Md. 597, 604, 573 A.2d 1346 (1990); Baltimore Cty. C.A.U.T., supra, 321 Md. at 204, 582 A.2d 510; Kaczorowski, supra, 309 Md. at 516, 525 A.2d 628. Construction of a statute which is unreasonable, illogical, unjust, or inconsistent with common sense should be avoided.  D & Y, Inc. v. Winston, 320 Md. 534, 538, [*388] 578 A.2d 1177 (1990); Kindley v. Governor of Maryland, 289 Md. 620, 625, 426 A.2d 908 (1981).

   Considering the statute as a whole, and within the context of its larger purpose, we do not interpret § 11-106(b)(11)(i) as requiring a blanket inclusion of wages earned from temporary, part-time work.  We have previously defined the purpose of the statute as providing for an appropriate degree of spousal support in the form of alimony after the dissolution of a marriage. Turrisi v. Sanzaro, 308 Md. 515, 527, 520 A.2d 1080 (1987) (quoting McAlear, supra, 298 Md. at 348, 469 A.2d 1256). In regard to the appropriateness of such support, the statute itself requires that the trial court weigh all factors relevant to "a fair and equitable award." Section 11-106(b).  The statute elsewhere invokes the equitable concept of unconscionably disparate standards of living.  Section 11-106(c)(2).  Its sister provision governing the extension of an alimony period permits the court to act [**595] to avoid "a harsh and inequitable result." Section 11-107(a)(1). n2

 n2 This section provides in full:

   "(a) Extension of period.  -- Subject to § 8-103 of this article, the court may extend the period for which alimony is awarded, if:

   (1) circumstances arise during the period that would lead to a harsh and inequitable result without an extension; and

   (2) the recipient petitions for an extension during the period.

   (b) Modification of amount.  -- Subject to § 8-103 of this article and on the petition of either party, the court may modify the amount of alimony awarded as circumstances and justice require."

   We conclude from these provisions that the paramount goal of the legislature was to create a statutory mechanism leading to equitably sound alimony determinations by judges.  These provisions temper the statute's contemplated meaning of "all income" in § 11-106(b)(11)(i), which, if interpreted literally, would otherwise defeat the objectives of equity by distorting an assessment of the divorcing parties' real financial condition.  An undiscriminating inclusion of all income from part-time work held in addition to primary employment may well exaggerate the means available [*389] to one spouse, or the other, over the long term.  Part-time work is often tenuous in prospect and short in duration. To include such income as a matter of course may ultimately result in a false picture of a party's economic self-sufficiency or security.  The alimony statute in its entirety renounces an approach based on rote or formula.  Cf. Guardian Life Ins. v. Ins. Comm'r, 293 Md. 629, 643, 446 A.2d 1140 (1982) (where a particular provision of a statute is part of a single statutory scheme the legislative intention must be gathered from the entire statute rather than from only one part) and Howard Co. Ass'n, Retard. Cit. v. Walls, 288 Md. 526, 530, 418 A.2d 1210 (1980) (a statute must be examined as a whole and the interrelationship or connection among all of its provisions considered).

   The 1980 Report supports our view respecting the equitable dimensions of the alimony statute, and is properly considered in determining legislative intent. See McAlear, supra, 298 Md. at 340, 469 A.2d 1256. In its analysis of the proposed act, the Commission made clear that a court, guided by the appropriate factors, should devise a just alimony award. 1980 Report at 10.  More important, the Commission emphasized time and again that each dispute involving alimony be decided on its own merits, on a case-by-case basis, applying the relevant statutory criteria.  Id. at 5, 6, 7.  We interpret § 11-106 as enacting the Commission's stated aim of judicial flexibility, and reject ironclad definitions of statutory language seen in isolation.

   We thus understand the term "income" as used in § 11-106(b)(11)(i) to signify, in this setting, the wages or salary from regular, full-time employment, i.e., money earned during the normal work week as is appropriate to a given occupation.  For a payroll clerk like Ruth, thirty-five to forty hours per week is undoubtedly the norm.  The trial court found Ruth's second, part-time job at McDonald's to be temporary work, in the nature of a stop-gap, filling the interim between the Traceys' final separation and the resolution of their financial affairs attendant upon divorce. Ruth worked at McDonald's as many as twenty or twenty-five [*390] additional hours each week.  Her work week of sixty to sixty-five hours can only be described as burdensome.  Her meager pay from this second job should not, of itself, bar her from receiving alimony. The alimony statute does not consign Ruth to an existence of unremitting toil.

   The few reported cases dealing with similar questions in other states have reached a like result.  The Supreme Court of Nebraska has held it improper to determine a husband's income from two jobs in calculating his child support and alimony obligations, even though the applicable statutory guidelines required consideration of income from all sources.  Stuczynski v. Stuczynski, 238 Neb. 368, 471 N.W.2d 122 (1991). The court said of the husband:
"To satisfy the requirements of his family, he took a second job.  He now says he is tired of working 70 hours a week.  No worker should be required to work at such a rate for long periods of time, and it is not fair and equitable to require him to do so."
 
Id. 471 N.W.2d at 126. [**596] See also Bingert v. Bingert, 247 N.W.2d 464, 467 (N.D.1976) (wife's income from a second job as babysitter not a change of circumstances sufficient to modify alimony).  The Court of Appeal of Louisiana has refused to compel a husband to take a second job beyond his full-time employment in order to afford larger child support payments.  Naquin v. Naquin, 405 So.2d 1171, 1172 (La.App.1981).

   We note, additionally, that the trial court found Ruth's debt service obligation to be about $385 per month.  When added to her basic living costs, this sum brought her total monthly requirements up to roughly $2115.  Her net income from her government post, investments, and contribution from her son approximated $1400.  Thus, even with her $400 in wages from the second job at McDonald's, Ruth's monthly income still fell fully $300 short of her needs; consequently, she was not self-supporting, and the trial court did not err in granting her alimony.

   [*391] IV

   Robert next challenges the trial court's award of indefinite alimony under § 11-106(c), rather than alimony for a fixed period of time.  We have previously observed that the statutory scheme generally favors fixed-term or so-called rehabilitative alimony. Turrisi v. Sanzaro, supra, 308 Md. at 524-525, 520 A.2d 1080. The 1980 Report indicated that the purpose of alimony is not to provide a lifetime pension, but where practicable to ease the transition for the parties from the joint married state to their new status as single people living apart and independently.  1980 Report at 4.  Expressed otherwise, alimony's purpose is "to provide an opportunity for the recipient spouse to become self-supporting." Id. at 2.  The concept of alimony as life-long support enabling the dependent spouse to maintain an accustomed standard of living has largely been superseded by the view that the dependent spouse should be required to become self-supporting, even though that might result in a reduced standard of living. Holston v. Holston, 58 Md.App. 308, 321, 473 A.2d 459, cert. denied, 300 Md. 484, 479 A.2d 372 (1984).
 
   At the same time, the 1980 Report proposed, and the legislature enacted, provisions acknowledging that rehabilitative alimony will not be appropriate in every case.  Turrisi v. Sanzaro, supra, 308 Md. at 525, 520 A.2d 1080. These provisions are now embodied in § 11-106(c), which recognizes in subsection (1) that some recipients will never be able to progress towards self-sufficiency, and in subsection (2) that unconscionably disparate standards of living between former spouses after divorce may justify indefinite alimony. See Rosalyn B. Bell, Alimony and the Financially Dependent Spouse in Montgomery County, Maryland, 22 Fam.L.Q. 225, 270-299 (1988) (analyzing indefinite alimony awards). n3 The provisions for indefinite alimony in [*392] § 11-106(c) serve as a restraint upon the doctrine of rehabilitative alimony; they exist to protect the spouse who is less financially secure from too harsh a life once single again. See generally, Joan M. Krauskopf, Rehabilitative Alimony: Uses and Abuses of Limited Duration Alimony, 21 Fam.L.Q. 573 (1988) and Anu R. Mathur, Indefinite Alimony: A Solution to the Financial Trauma of Divorce, 10 Probate L.J. 303 (1991).

n3 Section 11-106, read as a whole, appears to constitute a somewhat paradoxical compromise.  On one hand, the legislation favors alimony as a tool of economic rehabilitation; the chief aim is to encourage and assist the recipient spouse to achieve financial independence.  On the other hand, a number of the enumerated factors for consideration are clearly equitable in nature, and have little or nothing to do with the present economic sufficiency of the party seeking alimony, to wit: the parties' standard of living during marriage, the duration per se of the marriage, the parties' non-monetary contributions to family well-being, and the circumstances leading to the parties' estrangement. Some commentators have remarked upon this paradox with regard to alimony statutes generally.  See, e.g., Connell, supra, at 427; Ira Mark Ellman, The Theory of Alimony, 77 Cal.L.Rev. 1, 74-75 (1989).

   The trial court determined that Ruth was not self-supporting. With that assessment we agree.  The trial court found further that Ruth, at the age of forty-six and holding [**597] a high-school equivalency diploma, had realized her potential in the labor market.  In her few business courses at the college level, she received poor grades.  Judge Wolff thus determined that Ruth was not likely to secure any significantly better-paying work in a new field and that, in the language of § 11-106(c)(2), Ruth made as much progress toward becoming self-supporting as can reasonably be expected.

   There thus arises the question of whether the respective post-divorce standards of living of the parties are unconscionably disparate. Robert, relying upon Hull v. Hull, 83 Md.App. 218, 574 A.2d 20 (1990), asserts that Ruth has income sufficient to hold body and soul together, and is therefore, by definition, ineligible for indefinite alimony. That assertion fails.  Ruth is not fully self-supporting. Moreover, self-sufficiency per se does not bar an award of indefinite alimony if there nonetheless exists an unconscionable disparity in the parties' standards of living after [*393] divorce. A trial court must evaluate and compare their respective living standards as a separate step in making its judgment. n4 It would fall within a court's discretion to award indefinite alimony, for example, to one ex-partner who meets all expenses by earning $12,000 a year as a social worker and living in an inherited home, while the other former spouse earns $150,000 annually as a corporate lawyer.  Hull is inapposite.  There, both spouses were millionaires living in an exclusive community on Gibson Island.  The spouse seeking alimony received an annual income of $45,000 from investments alone.  It was entirely proper for the trial court in Hull to determine that alimony was unnecessary under those circumstances.

n4 The Maryland Court of Special Appeals has correctly interpreted this nuance of § 11-106(c)(2).  See Rock v. Rock, supra, 86 Md.App. at 608-611, 587 A.2d 1133 (indefinite support warranted where wife had earned as much as $24,000 and husband typically earned in excess of $100,000); Rogers v. Rogers, 80 Md.App. 575, 588-592, 565 A.2d 361 (1989) (denial of alimony reversed with directions to consider imbalance between wife's highest salary of $17,500 and husband's income of $115,000 plus bonuses); Melrod v. Melrod, 83 Md.App. 180, 196, 574 A.2d 1 (1990) (even after wife's rehabilitation, great disparity in parties' wealth will result in greatly disparate standards of living).

   The Traceys' circumstances are far different.  As we have seen, Robert earned about $61,000 in 1990.  Excluding the wages from her second job at McDonald's, Ruth's 1990 earnings were $16,849, or roughly 28% of the husband's income.  We decline to adopt a hard and fast rule regarding any disparity between the incomes of parties contesting indefinite alimony. Generally speaking, alimony awards, though authorized by statute, are founded upon notions of equity, Wallace v. Wallace, 290 Md. 265, 284, 429 A.2d 232 (1981); equity requires sensitivity to the merits of each individual case without the imposition of bright-line tests.  The 1980 Report specifically stated its belief that "different ills call for different remedies"; and that "the matter of relative standards of living [is] to be resolved, as it seems to us it must be, on a case-by-case basis." 1980 Report at 5.  The legislature subsequently adopted the Commission's proposals [*394] in enacting § 11-106(c)(2).  The statute by design confers wide latitude upon trial courts assessing requests for indefinite alimony. Judge Wolff did not abuse his discretion in this case.

   V

   The trial court conditioned the grant of indefinite alimony upon Ruth not working at a second job in addition to her government employment.  Several passages from the trial court's remarks suggest that income from a second job would simply represent a change in the parties' circumstances potentially justifying reconsideration of the alimony award. Other remarks, and the court's final judgment and order, however, appear to direct that Ruth will automatically forfeit her right to the alimony should she engage in additional part-time work. Such a ruling, we think, is premature.  A court should not penalize a divorced person for her industry in working at two jobs.  Moon v. Moon, 210 Va. 575, 172 S.E.2d 778, 779 (1970). Ruth is [**598] free to seek to better her station and material comfort as she thinks best.

   JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED, EXCEPT AS TO THAT PART OF THE JUDGMENT WHICH AFFIRMED THAT COMPONENT OF THE JUDGMENT OF DIVORCE ENTERED BY THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY CONDITIONING THE ALIMONY AWARD UPON THE RESPONDENT NOT ENGAGING IN PART-TIME EMPLOYMENT; CASE REMANDED TO THE COURT OF SPECIAL APPEALS WITH INSTRUCTIONS TO REMAND THE CASE TO THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY WITH DIRECTIONS THAT THAT COURT VACATE THAT PART OF PARAGRAPH 3 OF ITS JUDGMENT OF DIVORCE CONDITIONING THE AWARD OF ALIMONY UPON THE RESPONDENT'S NOT "ENGAGING IN PART-TIME EMPLOYMENT IN ADDITION TO HER FULL-TIME JOB WITH THE FEDERAL [*395] GOVERNMENT." COSTS TO BE PAID BY THE PETITIONER. 

Theodore J. SCHEVE et ux. v. SHUDDER, INC. et al.; TheodoreJ. SCHEVE et ux. v. BAMA, INC. et al. 
No. 13, September Term, 1992
 
COURT OF APPEALS OF MARYLAND
 
328 Md. 363; 614 A.2d 582; 1992 Md. LEXIS 167

 October  28, 1992, Filed

   SUBSEQUENT HISTORY: Motion for Reconsideration Denied November 27, 1992.

PRIOR HISTORY: [***1]

   Appeal from the Circuit Court for  Anne Arundel  County pursuant to certiorari to Court of Special Appeals. Warren B. Duckett, Jr. JUDGE

DISPOSITION: CASE REMANDED TO THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY PURSUANT TO RULE 8-604(d)(1) WITHOUT AFFIRMANCE OR REVERSAL AND FOR FURTHER PROCEEDINGS CONSISTENT WITH THE OPINION OF THIS COURT.  THE PETITIONERS, THEODORE J. SCHEVE AND GERALDINE E. SCHEVE, AND THE RESPONDENTS, SHUDDER, INC. AND BAMA, INC., SHALL BEAR THEIR OWN COSTS IN THIS COURT.

CORE TERMS:  tax sale, purchaser, right of redemption, foreclosing, foreclose, redemption, foreclosure, notice, final order, collector, summons, order of publication, certificate, summary judgment, final judgment, final decree, complied, equity of redemption, certificate of sale, motion to dismiss, title search, time period, prerequisite, foreclosed, expire, bid, published notice, right to dismiss, property sold, adverse party

COUNSEL: Paul E. Rosenberg, Camp Springs, for appellants.

   Susanne Koster Henley, Annapolis, for appellees.

JUDGES: Murphy, C.J., and Eldridge, Rodowsky, McAuliffe, Chasanow, Karwacki and Robert M. Bell, JJ.

OPINIONBY: CHASANOW

OPINION: [*365] [**583] The issue in the instant case is whether the court may issue a final decree foreclosing a landowner's right of [*366] redemption and vesting title in a tax sale purchaser, under Maryland Code (1986, 1992 Cum.Supp.), [**584] Tax-Property Article, § 14-844, n1 where the tax sale purchaser has filed suit to foreclose the right of redemption and taken all necessary steps to perfect the foreclosure of the right of redemption, but thereafter changed its mind.

 n1 Hereinafter all statutory references are made to Maryland Code (1986, 1992 Cum.Supp.), Tax-Property Article.

   I.

   On June 2, 1987, the Anne Arundel County tax collector held a public tax sale and sold ten properties located within the county, nine of the properties belonging to the defendant Bama, Inc. and one to the defendant Shudder, Inc. (collectively "the defendants").  At this tax sale, the plaintiffs, Theodore and Geraldine Scheve (the Scheves), were the highest bidders on the defendants' properties. n2 The Scheves paid the outstanding tax on the properties, and the county tax collector issued them certificates of tax sale for each of the ten parcels. n3

n2 The total price bid for the nine parcels owned by Bama was $849,000.  The Scheves also bid $30,000 on the property that Shudder owned.

n3 At that time, Bama owed the county $9,231.23 in property taxes on its nine parcels and Shudder owed $348.05.

   The Scheves filed a complaint to foreclose Shudder's right of redemption on March 31, 1988.  The Scheves filed two requests for the service of process and for orders of publication in the Shudder case, the first with the complaint and, after a series of miscommunications with the circuit court clerk's office, again on November 14, 1988.  After correcting the problem, the court issued the required process and published a notice of foreclosure. Both the notice and summons provided that the property should be redeemed by February 9, 1989, or a final judgment would be entered foreclosing Shudder's rights of redemption.

   [*367] On February 2, 1989, the Scheves also filed a complaint to foreclose Bama's right of redemption. Under the terms of the summons and the published notice, the property should be redeemed by April 19, 1989, or a final judgment would be entered foreclosing Bama's rights of redemption.

   With both the Shudder and Bama complaints, the Scheves attached the tax sale certificates, affidavits of title search, requests to order publication of notice of sale, and requests to serve summons on the named defendants.  In each case, the defendants received personal service of process, as well as published notice before any judicial action occurred.  Neither Bama nor Shudder filed answers to the complaints or sought to prevent foreclosure.

   In November 1990, the defendants Shudder and Bama submitted to the circuit court proposed orders that would foreclose their rights of redemption. The circuit court signed the orders on December 11, 1990, and foreclosed the defendants' rights of redemption. n4 Immediately thereafter, the Scheves filed a motion to strike the order foreclosing redemption. The Scheves' motion was based on the grounds "that the Plaintiffs have not sought a Final Order Foreclosing Rights of Redemption[, and that] the Order appears to have been passed by the Court sua sponte without communication to Plaintiffs or their attorney." On January 3, 1991, the judge granted the Scheves' motion to strike the order and revived the defendants' rights of redemption. After the court did so, however, the Scheves did not attempt to dismiss their complaint.

n4 We will hereafter address these two matters as one case.  The defendants were represented by the same counsel, all the relevant documents and court orders were identical, and the two cases were combined at a later hearing.

   The defendants filed a Motion for Judgment on June 24, 1991, and requested that the circuit court foreclose their rights of redemption and authorize the collector of taxes to convey to the Scheves an indefeasible fee simple title to the property.  Almost three years after filing their complaint to [*368] foreclose the right of redemption, the Scheves apparently decided that they had overbid the property.  In response to the defendants' motion and their anticipation [**585] of potential financial loss, the Scheves filed a motion stating that they were "not interested in pursuing their Complaint to Foreclose the Equity of Redemption and request that it be dismissed . . . ."

   A hearing was held September 16, 1991, to decide the defendants' Motion for Judgment.  At the hearing, the defendants argued that, once a purchaser at a tax foreclosure sale files a complaint and takes all steps necessary to foreclose the right of redemption, the court must enter a judgment foreclosing the prior owner's right of redemption after the time period set in the order of publication and the summonses expire. For this proposition the defendants relied on § 14-844(a), which provides:
"§ 14-844. Final order.
(a) Judgment.  -- After the time limit set in the order of publication and in the summons expires, the court shall enter judgment foreclosing the right of redemption. An interlocutory order is not necessary.  The judgment is final and conclusive on the defendants, their heirs, devisees, and personal representatives and they or any of their heirs, devisees, executors, administrators, assigns, or successors in right, title, or interest, and all defendants are bound by the judgment as if they had been named in the proceedings and personally served with process."
 
The Scheves in turn sought to dismiss their complaint and argued that after filing the complaint the statute "doesn't intend for a final decree unless the Plaintiff moves for it, and there is no authority to compel him to take [the property]." The Scheves also argued that the circuit court could not foreclose the right of redemption because there had been no compliance with the literal terms of the notice provisions in § 14-839, since the Scheves failed to file an affidavit of service of process.

   The circuit court rejected the Scheves' arguments and held that "once the Order of Publication and summons [*369] requirements have been complied with, the court shall enter a judgement foreclosing the equity of redemption[, and a] specific request by the tax purchaser is not necessary." Noting that the purpose of the statute was to improve the marketability of property sold at tax sales, the court reasoned that "[t]he purpose of § 14-808 et seq. would be defeated if the purchaser at a tax sale were allowed to file a Complaint to Foreclose the Equity of Redemption, comply with all the statutory notice and publication requirements, allow the time in the Summons and Order of Publication to pass and only then delay the entering of a Final Order by withholding from the Court a copy of a Final Order." The circuit court then entered the final order foreclosing the defendants' rights of redemption. The Scheves appealed to the Court of Special Appeals, and we granted certiorari before the intermediate appellate court heard the case.

   II.

   Title 14 of the Tax-Property article provides county governments a means of collecting property taxes that are in arrears.  In Simms v. Scheve, 298 Md. 1, 467 A.2d 499 (1983), we noted that, under the tax sale statute, "for a tax sale to be effective substantial compliance with the statute is required[; i]n this regard, the prescription of the statute is clear and simple." We then described the basic steps of the tax sale process.  We said that under the tax sale statute
"[u]npaid taxes on real estate constitute a lien on that property.  [§ 14-804]. Generally, within two years from the date taxes become in arrears the jurisdiction's collector must sell the land.  [§ 14-808].  Notice of the proposed sale must be given to the owner at least thirty days before the property is advertised for sale and the owner is notified that if he does not pay the taxes within thirty days, the property will be sold.  [§ 14-812].  After the sale is properly advertised, the property is sold at public auction.  [§ 14-817].

   [*370] The purchaser of the property is given a certificate of sale which includes a description of the property, the amount for which the property was sold, and information as to the time in which an action to foreclose the owner's right of redemption [**586] must be brought.  [§ 14-820].  The owner may redeem the property at any time until the right of redemption has been finally foreclosed by paying the required sum to the collector, who transfers the money to the purchaser in exchange for the tax sale certificate. [§§ 14-827 to 14-828].

   Sections [14-832.1 to 14-848] define the purchaser's ability to foreclose the right of redemption. These provisions are to be 'liberally construed as remedial legislation to encourage the foreclosure of rights of redemption by suits in the [circuit] courts and for decreeing of marketable titles to property sold by the collector.' [§ 14-832].  The holder of the certificate of sale may file [a complaint] to foreclose the owner's right of redemption after [six months] from the date of the sale . . . .  The [complaint] must be filed within two years or the certificate is void.  The owner may redeem the property at any time until the right of redemption has been finally foreclosed. [§ 14-833].

   The purchaser initiates the foreclosure proceeding in the [circuit] court by filing a [complaint as detailed in § 14-835] and attaching the certificate of sale issued by the collector . . . ."
 
Simms, 298 Md. at 3-4, 467 A.2d at 500 (citations omitted).

   The tax sale statute sets out several steps that must be complied with before a circuit court may enter a final order under § 14-844.  In summary, the statute requires that: (1) the purchaser must file a complaint that conforms with § 14-835(a) within two years following the sale; (2) the purchaser must attach the certificate of sale (§ 14-835(b)); (3) the purchaser must attach an affidavit of title search (§ 14-838); (4) the court must issue process and public notice under §§ 14-839 and 14-840, setting out the time after which the right of redemption will be foreclosed. [*371] Thereafter, assuming that due process requirements have been met, the circuit court may enter a final order under § 14-844.

   III.

   On appeal, the Scheves object to the circuit court's entry of an order foreclosing the defendant's rights of redemption and seek both to reverse the circuit court's order and to dismiss their complaint.  The Scheves allege that the circuit court erred in (1) its construction of Title 14 of the Tax-Property Article; (2) its denial of the Scheves' motion to dismiss; and (3) its entering a final judgment foreclosing the defendants' rights of redemption before the Scheves fully complied with the notice provisions in § 14-839.

   A.

   The parties focus their arguments on the construction of § 14-844.  The relevant portion of § 14-844 provides:
"(a) Judgment.  -- After the time limit set in the order of publication and in the summons expires, the court shall enter judgment foreclosing the right of redemption . . . ."

   The Scheves contend that § 14-844(a) does not permit a circuit court to enter an order foreclosing the right of redemption against "an unwilling plaintiff." They argue that the filing of a complaint and complying with the procedural statutes is insufficient and that a tax sale purchaser must take additional steps to affirm its desire to foreclose. The defendants simply respond that the language of § 14-844 is mandatory, and that once the suit is filed and the statutory procedures are complied with the circuit court must enter an order to foreclose the right of redemption after the expiration of the dates in both the published notice and summonses.

   In construing a legislative enactment the fundamental judicial task is to determine and effectuate the legislature's intent, and indeed the very language of the statute serves as the primary source of the legislature's [*372] intent.  See, e.g., Revis v. Maryland Auto. Ins. Fund, 322 Md. 683, 686, 589 A.2d 483, 484 (1991); Privette v. State, 320 Md. 738, 744, 580 A.2d 188, 191 (1990). To accomplish this task "the words of the statute are to be given their ordinary and [**587] natural import . . . ." Revis, 322 Md. at 686, 589 A.2d at 484. In addition, the language of the statute must be considered along with the statute's stated policy that its provisions "shall be liberally construed as remedial legislation to encourage the foreclosure of rights of redemption . . . and for the decreeing of marketable titles to property sold by the collector." § 14-832.

   Under these principles of statutory construction and the plain language of the statute, the Scheves' first contention must fail.  The Scheves argue that a tax sale purchaser's filing of a complaint under § 14-833 is an insufficient basis for a circuit court to grant the relief that the complaint requests. Instead, the Scheves reason, the complaint only serves to preserve the validity of the certificate, and the court must wait until the tax sale purchaser signals the court that it is "truly" interested in receiving the relief requested in the complaint.  The Scheves base this interpretation on policy arguments aimed at protecting the tax sale purchaser from hidden risks that may not surface until after a title search is performed or that may surface after the tax sale purchaser files the complaint.  Such defects, the Scheves assert, include the risk that the purchaser may have overbid the property, the existence of federal tax liens, pending bankruptcy proceedings, and destruction of an improvement on the property due to fire or other unforeseen event.  According to the Scheves, requiring the reaffirmation of the tax sale purchasers' desire to foreclose protects purchasers from these risks, thus maintaining the viability of the tax sale process.  Without such protection, they argue, potential purchasers would be unwilling to purchase property at tax sales.

   The Scheves' suggested interpretation, however, simply does not conform with the statute's language or the policies that the statute embodies.  To begin with, § 14-833 [*373] provides that the purchaser initiates the foreclosure process by filing a complaint.  The statute then sets out that the complaint must contain "a request that the court pass a judgment that forecloses all rights of redemption of the defendants and any other person having any interest in the property." § 14-835(a)(6) (emphasis added).  In addition to the statutory definition, the common definition of "complaint" encompasses a demand or request for judgment granting the relief that the plaintiff is seeking.  See Md. Rule 2-305; Black's Law Dictionary 285 (6th ed. 1990).  Thus, under the statute the complaint is a request that the court take action, not just a mere reservation of rights used to toll the statutory time period in which foreclosure must be sought.

   In addition, our prior interpretation of the tax sale statute also indicates that no additional steps are required to enter a final judgment under § 14-844 beyond those set out in the text of the tax sale statute.  For instance, in Simms v. Scheve, 298 Md. 1, 467 A.2d 499 (1983), we rejected a contention that a court must enter a decree pro confesso before foreclosing the owner's right of redemption. The Court based the analysis in Simms upon the premise that the tax sale statute outlined "a complete, clear, and logical procedure for foreclosing [the right of redemption]." Id. at 8, 467 A.2d at 502 (emphasis added).  Noting the language of Art. 81, § 112, the predecessor of § 14-844, we rejected the defendant's argument that the statute required an additional step not present in its text.  We concluded that the tax sale statute "specifically provide[d] that the final decree be entered after the time stated in the subpoena; it did not mention the delay that would be caused by the decree pro confesso procedure." Id. at 10, 467 A.2d at 503.
 
   The logic of Simms is just as applicable here.  The literal terms that the legislature used in § 14-844 do not encompass the Scheves' suggested "second step." A complaint under Title 14 must include the certificate of tax sale, an affidavit of a title search, and requests to serve process and for the court to issue an order of publication. §§ 14-835(b), [*374] 14-838, and 14-835(a)(4)-(5).  After the purchaser files the complaint and meets all the tax sale statute's requirements, § 14-844 provides that when the prerequisite time period expires, a time period set into motion only through [**588] filing the complaint, a judgment will be entered.  There is no mention of an additional prerequisite step of reaffirming the tax sale purchaser's desire to proceed.

   Under Title 14, once all the necessary steps have been taken, the purchaser's filing of a complaint will authorize the court to foreclose of the right of redemption. To add the additional requirement of a specific request for further judicial action before a circuit court may enter a final order would contradict both the statutory language and scheme.  Section 14-833 provides the tax sale purchaser a two-year period to decide if its bid would be a good investment.  If it is, the purchaser may then file a complaint to foreclose the right of redemption. Before filing the suit, if the investment fails to meet the purchaser's expectations, the tax sale purchaser may walk away from its bid with only the forfeiture of its payment of the back taxes.  § 14-833(d).  Either way, the decision to file a complaint and to proceed remains with the tax sale purchaser. The two-year filing deadline under the statute provides an adequate period of time in which the purchaser can assess and discover risks of completing the transaction.

   At a minimum, we hold that, unless the complaint is dismissed under Md.Rules 2-506 or 2-507, § 14-844 gives a circuit court authority to enter a final order foreclosing the owner's right of redemption once the plaintiff has accomplished all the prerequisite steps required by the tax sale statute.  Permitting a circuit court to enter a final order under § 14-844 after the time period set forth in the purchaser's notice to the owner is true to both the statutory language and the policy of encouraging the foreclosure of redemptive rights at tax sales.  To require an additional demand by the tax sale purchaser would condone the extension of the tax sale process almost indefinitely, so long as the complaint is timely filed, unless the court dismisses the [*375] action under its own motion or the motion of an interested party.  See Md.Rule 2-506; Md.Rule 2-507(c). n5 Tax sale purchasers must be serious when filing their complaints and initiating the judicial process.  When tax sale purchasers file their complaints, they signal the court of their willingness to proceed.

n5 Indeed, the period in which the purchaser's right to foreclose the right of redemption can potentially be quite extensive.  For instance, in Prince George's Homes v. Cahn, 283 Md. 76, 389 A.2d 853 (1978), we found that a tax sale purchaser who had timely filed to foreclose the owner's right of redemption but who did not seek to conclude the procedure until nine years later was still entitled to receive a final decree foreclosing the owner's redemptive rights. In Cahn we recognized that although the county tax collector could seek to dismiss the tax sale purchaser's complaint for failure to prosecute, until the complaint was actually dismissed the tax sale purchaser was still entitled to receive a final order and the county could not resell the property.  Id. at 83, 389 A.2d at 856.

   B.

   The Scheves' next contention is that the circuit court could not enter a final judgment since they did not comply with the notice provisions of § 14-839; specifically, the Scheves point to their own failure to file an affidavit certifying the method and time of service.  § 14-839(a)(5).  Thus, they argue, all the prerequisites under the statute were not met and the circuit court was without jurisdiction.  We disagree.  Our prior case law indicates that the requirement of filing an affidavit of service of process is not a jurisdictional requirement where there are no allegations that the owners lacked notice of the foreclosure proceedings.  See Hauver v. Dorsey, 228 Md. 499, 503-04, 180 A.2d 475, 478 (1962).

   The Scheves' contention has no merit.  The defendants here have all been personally served with process and have submitted to the court's jurisdiction in these proceedings by filing motions for judgment.  In addition, the Scheves are not the proper party to raise issues concerning the notice provisions.  The Legislature intended property owners, not [*376] tax sale purchasers, to be the beneficiaries of the tax sale notice provisions and enacted these provisions to provide greater due process protection for them.  See St. George Church v. Aggarwal, 326 Md. 90, 96, 603 A.2d 484, 487 (1992).

   [**589] C.

   The Scheves finally assert the circuit court erred in not permitting them to voluntarily dismiss their complaint to foreclose prior to entering the final decree under § 14-844.  The Scheves contend that they were "unwilling plaintiffs" and allege that once a plaintiff in a tax sale foreclosure decides to voluntarily dismiss a case a court cannot compel a plaintiff to go forward. The Scheves broadly assert that "[t]here is no provision under the law or under the Rules of Procedure requiring any Plaintiff, civil or criminal, to proceed with a cause of action against its will." The Scheves' contentions, however, misconstrue Maryland Rule 2-506.

   We do not agree with the Scheves' assertions that tax sale purchasers possess a unilateral right to dismiss a complaint at any time.  This argument is far too broad.  Although Title 14 creates a distinct statutory process for foreclosing a property owner's right of redemption after a tax sale, Maryland's Rules of Civil Procedure still must be followed.  Under these Rules, neither tax sale purchasers nor plaintiffs in general possess an unqualified right to dismiss their suits.  With tax sale foreclosure actions, as with all causes of actions, at some point in the litigation a circuit court may deny a plaintiff's request to dismiss its complaint.  Maryland Rule 2-506 establishes that point.  Under the heading of "Voluntary Dismissal," it provides:

   "(a) By Notice of Dismissal or Stipulation.  -- Except as otherwise provided in these rules or by statute, a plaintiff may dismiss an action without leave of court (1) by filing a notice of dismissal at any time before the adverse party files an answer or a motion for summary [*377] judgment or (2) by filing a stipulation of dismissal signed by all parties who have appeared in the action."
 
Under the plain language of Rule 2-506, the plaintiff loses the absolute right to voluntarily dismiss an action after an adverse party files an answer or motion for summary judgment. The tax sale statute does not alter the operation of Rule 2-506(a).

   We note that the need of tax sale purchasers to obtain leave of court before dismissing their complaints is not new.  In fact, the requirement was once far stricter.  Before the merger of the courts of law and equity in Maryland, an action to foreclose the right of redemption was a proceeding in equity.  See Dampman v. Litzau & Sonntag, 261 Md. 196, 202, 274 A.2d 347, 350 (1971) (foreclosure of right of redemption is a statutory equity proceeding); Voge v. Olin, 69 Md.App. 508, 513, 518 A.2d 474, 476 (1986) (stating same); see also Md.Code (1957, 1975 Repl.Vol.), Art. 81, § 112 ("the court shall pass its decree in the proceedings, in accordance with the general equity jurisdiction and practice of the court . . . .").  Old Md. Rule 582, titled "Voluntary Dismissal -- Equity" embodied the common law rule that a party requires leave of the court before dismissing an equitable action, regardless of whether the adverse party has filed an answer or a motion for summary judgment. Md.Rule 582 (1984).  It stated in relevant part that "[a] party may dismiss his action . . . only with leave of court." Thus, contrary to the Scheves' assertions, prior procedural rules placed even greater limits on a plaintiff's right to dismiss a tax sale proceeding than exist under present Md.Rule 2-506.

   The Scheves did not request to dismiss their complaint until after Anne Arundel County filed answers to the suits, n6 and after the defendants filed Motions for Judgment.  The [*378] defendants' Motions for Judgment were the equivalent of motions for summary judgment, as they did not raise an issue of material fact and sought relief as a matter of law.  See Md.Rule 2-501(a) and (e).  Accordingly, we find that the Scheves no longer had the ability to unilaterally dismiss their complaint.  Instead, the Scheves needed leave of the court to do so, permission which was within [**590] the circuit court's discretion to withhold under Rule 2-506.

n6 Anne Arundel County filed simple answers in both cases.  The answers stated, "[t]hat the Defendant, Anne Arundel County, Maryland, has no interest in the outcome of this case except that all taxes, interest and penalties relating thereto, relating to each of the subject properties . . . should be fully paid . . . ."

   Thus the circuit court had authority, unless it dismissed the action under Rule 2-506, to enter a final order foreclosing redemptive rights since the Scheves' had filed a complaint and complied with the necessary requirements of the tax sale statute.  Under Rule 2-506, the trial court has the discretion to grant or deny a plaintiff's motion to dismiss made after an answer or motion for summary judgment has been filed.

   The circuit court, in interpreting the tax sale statute, ruled "once the Order of Publication and summons requirements have been complied with, the court shall enter a judgment foreclosing the equity of redemption." In light of our holding and the circuit court's apparent belief that it lacked discretion to dismiss the action based on the tax sale statute, we believe the appropriate disposition of this case is to order a limited remand to the Circuit Court for Anne Arundel County.  The circuit court may then exercise its discretion under Rule 2-506 and determine whether to grant or deny the Scheves' motion to dismiss. If the circuit court grants the motion to dismiss, it should strike the judgment foreclosing the right of redemption. Otherwise, the judgment will remain in effect.

   CASE REMANDED TO THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY PURSUANT TO RULE 8-604(d)(1) WITHOUT AFFIRMANCE OR REVERSAL AND FOR FURTHER PROCEEDINGS CONSISTENT WITH THE OPINION OF THIS COURT.  THE PETITIONERS, THEODORE J. SCHEVE AND GERALDINE E. SCHEVE, AND THE RESPONDENTS, SHUDDER, INC. AND [*379] BAMA, INC., SHALL BEAR THEIR OWN COSTS IN THIS COURT. 

Robert Lee BAILEY v. STATE of Maryland 
No. 154, September Term, 1991
 
Court of Appeals of Maryland
 
327 Md. 689; 612 A.2d 288; 1992 Md. LEXIS 147

 September  17, 1992, Filed

   PRIOR HISTORY: [***1]

   Certiorari to the Court of Special Appeals. (Circuit Court for  Anne Arundel  County). Raymond G. Thieme, Jr. JUDGE

DISPOSITION: JUDGEMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED.  COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID BY PETITIONER.

CORE TERMS:  probation, hearsay, reliability, probation revocation hearing, reliable, good cause, probationer, proffered, business record, hearsay evidence, successfully complete, admit, probation officer, admissible, right of confrontation, burden of proving, probation revocation, staff, admissibility, corroborated, motive, fault, probation violation, revocation, revoked, offered to prove, trustworthiness, contractor, declarant, fabricate

COUNSEL: Victoria S. Lansburgh, Asst. Public Defender (Stephen E. Harris, Public Defender, both on brief), Baltimore, for petitioner.

   Annabelle L. Lisic, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on brief), Baltimore, for respondent.

JUDGES: Murphy, C.J., and Eldridge, Rodowsky, McAuliffe, Chasanow, Karwacki and Robert M. Bell, JJ.

OPINIONBY: CHASANOW

OPINION: [*691] [**289]

   On February 12, 1990, Robert Lee Bailey pled guilty in the Circuit Court for Anne Arundel County to battery and a fourth degree sex offense.  Judge Raymond G. Thieme, Jr., sentenced Bailey to a one-year term of confinement, which he then suspended and placed Bailey on five years probation subject to certain conditions.  One of those conditions, [*692] spelled out in the Order for Probation, was that Bailey begin active participation in a residential treatment program at Omni House, Inc. by February 22, 1990.  Omni House is a private, non-profit organization in Anne Arundel County funded by the[***2] State Department of Health and Mental Hygiene to work with troubled individuals.
 
   Shortly thereafter, Bailey petitioned the court to modify his sentence. After encountering problems getting admitted to Omni House's residential program by the required date, Bailey was accepted only into that organization's daytime program; however, he was also accepted into the residential program at St. Paul House in Baltimore City.  He sought to secure the court's approval to modify the conditions of probation and receive his treatment in both programs.  On April 16, 1990, Judge Thieme granted Bailey's request and signed a new order of probation specifying, in part, that Bailey was to enter St. Paul House "for at least 6 months and successfully complete that program" as well as the daytime program offered at Omni House.  On October 1, 1990, the State charged Bailey with having violated this condition of his probation by failing to successfully complete the six month program at St. Paul House.

   At a hearing on December 14, 1990, Judge Thieme ruled that Bailey had violated the terms of his probation and reimposed the remainder of his original sentence.  Bailey appealed to the Court of Special Appeals, [***3] which affirmed the trial judge's order in an unreported opinion.  On Bailey's petition, we granted certiorari to review the decision of the Court of Special Appeals.  The question before us is whether Bailey's right of confrontation was violated when, at the probation revocation hearing, the trial court admitted into evidence and relied on a letter from St. Paul House stating among other things that Bailey had been discharged from its program.  The contents of the letter were hearsay; on this, both Bailey and the State agree.  They do not agree, however, on the standards for admissibility of hearsay at probation revocation hearings, or the application of those standards to the facts of this case.  We conclude that [*693] the evidence was properly admitted by the trial judge for the limited purpose of proving that [**290] Bailey did not complete the St. Paul House program.  Therefore, we affirm the revocation of Bailey's probation.

   I.

   At Bailey's probation revocation hearing, the State called Bailey's probation officer, Linda Anderson.  Anderson testified that Bailey had not abided by the rules of his probation because he did not successfully complete the six month program at St. Paul House. [***4] Anderson testified that the source for her initial report on Bailey's probation violation was a letter on St. Paul House letterhead received on August 17, 1990, but she also had subsequent discussions with Bailey about his leaving St. Paul House.  The letter on St. Paul House letterhead read as follows:

   August 17, 1990
 
To all concerned parties:

   Be it herein certified that one, Robert Bailey, has been officially discharged from residency at St. Paul House for the following:
(1) VIOLENT, ABUSIVE & EXCESSIVELY DISRUPTIVE BEHAVIOR TO RESIDENTS AND STAFF
(2) FAILURE TO PARTICIPATE IN A CONSISTENT SCHEDULED ACTIVITY AT LEAST FOUR (4) HOURS DAILY, MON. -- FRI.
(3) FAILURE TO ATTEND MANDATORY HOUSE MEETINGS
(4) FAILURE TO PERFORM HOUSEKEEPING DUTIES WITHOUT EXCUSE FROM STAFF

    Despite exhaustive efforts by staff to assist Robert in maintaining his placement at St. Paul House, he has persisted in violating the stated terms of residency which culminated in his nearly knocking down a female staff member as she entered the room while Robert was verbally abusing another staff person.

   [*694]

   Robert continued his maniacal display of belligerence and stormed out of the house, subsequently[***5] driving off in a rage.  This kind of behavior exemplifies the way Robert typically handles admonishment from staff regarding his frequent non-compliance with St. Paul House rules.

   Furthermore, staff was threatened and harassed by Robert's father, who obviously had been told by him that staff struck him.  Robert could be heard making racial slurs in the background.  His father also harassed a resident who refused to support them in conspiring to corroborate Robert's vengefully contrived allegation.  Robert has since been advised and instructed to pick-up any remaining belongings as well as the unused portion of his rent for the month of August.

   Sincerely,

   L. Stark n1

n1 The signature on the letter is difficult to read, and no name is typed in below it.  The exact identity of the signer was never established at the hearing.

   Defense counsel objected to the introduction of this letter, asserting that the letter writer's absence from the hearing denied Bailey his confrontation rights.  The trial judge held that Bailey[***6] did not have a right to confront the author of the letter and admitted it.  The trial judge ruled alternatively (1) that the letter was a business record and (2) even if it was not a business record, the letter was admissible because "the hearsay in it [was] inherently reliable, particularly as to him leaving the House." After Anderson testified, Bailey's father then testified on his son's behalf. Bailey's father acknowledged that his son did not complete the St. Paul House program, although he contended that Bailey told him that he was abused at St. Paul House and thrown out because he could not get a job.  Bailey did not testify on his own behalf.  On the basis of the evidence before the court, the circuit court revoked Bailey's probation.

   [*695]

   Bailey appealed from the trial judge's decision to admit the St. Paul House letter and from the subsequent revocation of his probation.

    II.

   A probation revocation hearing "typically involves two distinct components: [**291](1) a retrospective factual question whether the probationer has violated a condition of probation; and (2) a discretionary determination by the sentencing authority whether violation of a condition warrants revocation [***7]of probation." Wink v. State, 317 Md. 330, 332, 563 A.2d 414, 415 (1989) (quoting Black v. Romano, 471 U.S. 606, 611, 105 S.Ct. 2254, 2257, 85 L.Ed.2d 636, 642 (1985)). Initially, the State carries the burden of proving the probation violation, and must do so by a preponderance of the evidence.  Wink, 317 Md. at 332, 563 A.2d at 415. In the instant case, the State would have the burden of proving that Bailey failed to successfully complete the six month St. Paul House program.  If the State meets this burden, the burden of persuasion shifts to the probationer, and "ordinarily probation may not be revoked if the probationer proves that his failure to comply was not willful but rather resulted from factors beyond his control and through no fault of his own." Humphrey v. State, 290 Md. 164, 167-68, 428 A.2d 440, 443 (1981) (emphasis added); Turner v. State, 307 Md. 618, 626, 516 A.2d 579, 583 (1986); Hudgins v. State, 292 Md. 342, 348-49, 438 A.2d 928, 931 (1982);[***8] Coles v. State, 290 Md. 296, 308, 429 A.2d 1029, 1035 (1981); see also 3 LaFave & Israel, Criminal Procedure § 25.4, at 154 (1984).

   Coles v. State, 290 Md. 296, 429 A.2d 1029 (1981), illustrates the distribution of the burdens of proof and persuasion at probation revocation hearings.  In Coles, the defendant was convicted of public assistance fraud. The circuit judge gave Coles a suspended sentence and placed him on probation on the condition that he make restitution of over $30,000.  When Coles failed to make restitution, the circuit court revoked his probation. On appeal we affirmed the [*696] circuit court and applied Humphrey's two-step framework.  We reasoned that at a probation revocation hearing
"the judge assumes the role of factfinder to determine: in the first instance, whether the State has met its obligation of showing that there has been a failure of compliance with a condition of probation, and if so, secondly, whether the probationer has carried out his burden of establishing that the violation 'resulted from factors beyond his control and through [***9]  no fault of his own.'" (Emphasis added).
 
Id. at 308, 429 A.2d at 1035 (quoting Humphrey, 290 Md. at 168, 428 A.2d at 443). In Coles, the trial judge found that Coles had not met his burden of proving that his violation was non-willful, and therefore did not err in revoking his probation. Id. [290 Md.] at 309, 429 A.2d at 1035.

   The trial court's determination to revoke probation is reviewable by an appellate court on an abuse of discretion standard.  State v. Dopkowski, 325 Md. 671, 678, 602 A.2d 1185, 1188 (1992). Ordinarily, "[a]buse of discretion will be found only if the trial court has erroneously construed the conditions of probation, has made factual findings that are clearly erroneous, or has acted arbitrarily or capriciously in revoking probation." Id. (quoting Herold v. State , 52 Md. App. 295, 303, 449 A.2d 429, 433 (1982)).

   III.

   Bailey contends that the St. Paul House letter constituted inadmissible hearsay and violated his right[***10] of confrontation. Bailey first argues that the St. Paul House letter does not meet the requirements of the business records exception to the hearsay rule codified in Maryland Code (1974, 1989 Repl.Vol.), Courts & Judicial Proceedings Article, § 10-101. n2 [*697] Further, he argues that the [**292] letter is also too unreliable to be admitted under even the relaxed evidentiary standards which he acknowledges are permitted in a probation revocation hearing.

n2 Maryland Code (1974, 1989 Repl.Vol.), Courts & Judicial Proceedings Article, § 10-101 provides:

   "(a) Definition of 'business'.  -- 'Business' includes business, profession, and occupation of every kind.

   (b) Admissibility.  -- A writing or record made in the regular course of business as a memorandum or record of an act, transaction, occurrence, or event is admissible to prove the act, transaction, occurrence, or event.

   (c) Time of making records.  -- The practice of the business must be to make such written records of its acts at the time they are done or within a reasonable time afterwards.

   (d) Lack of knowledge of maker.  -- The lack of personal knowledge of the maker of the written notice may be shown to affect the weight of the evidence but not its admissibility."

[***11]

   A.

   The record indicates that the St. Paul House letter was relied on by the trial judge to establish the fact that Bailey left St. Paul House before successfully completing the six month program.  Bailey initially contends that the letter was inadmissible hearsay because it was neither a business record of the Division of Parole and Probation nor of St. Paul House.

   Ordinarily we might begin our analysis by determining whether the letter met the technical requirements of a business record and was therefore admissible as an exception to the hearsay rule.  In the instant case, we see no need to make the determination of whether the letter was admissible as a business record of the Division or of St. Paul House.  Even if we assume that the letter could not be admitted as a business record, it will nonetheless be admissible as "reasonably reliable hearsay" under the standards we discuss below.

   B.

   This Court has characterized probation as "a matter of grace, not entitlement, which permits a wrongdoer to keep his freedom 'as long as he conducts himself in a [*698] manner consonant with established communal standards and the safety of society.'" Kaylor v. State, 285 Md. 66, 75, 400 A.2d 419, 424 (1979)[***12] (quoting Scott v. State, 238 Md. 265, 208 A.2d 575 (1965)). Thus, the rules of evidence, including rules against the admission of hearsay, are relaxed at probation revocation hearings. n3

n3 It is noteworthy that under the Federal Rules of Evidence, Rule 1101(d)(3) specifically provides that the Federal Rules of Evidence, including the general prohibition of the use of hearsay, are not applicable to probation revocation proceedings.

   Further, because probation revocation is not a stage of the criminal process, the full panoply of rights due a defendant in a criminal prosecution is not required at a probation revocation hearing. Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S.Ct. 1756, 1759-60, 36 L.Ed.2d 656, 662 (1973); Morrissey v. Brewer, 408 U.S. 471, 480, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484, 494 (1972); see also Chase v. State, 309 Md. 224, 239, 522 A.2d 1348, 1355 (1987);[***13] Howlett v. State, 295 Md. 419, 424, 456 A.2d 375, 378 (1983). Nonetheless, a probationer is entitled to due process at such a hearing.  Gagnon, 411 U.S. at 783 n. 4, 93 S.Ct. at 1760 n. 4, 36 L.Ed.2d at 662 n. 4 (citing Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972)). In particular, we recognized in State v. Fuller, 308 Md. 547, 552-53, 520 A.2d 1315, 1317-18 (1987), that there is some right of confrontation, pursuant to the Sixth Amendment to the United States Constitution, which is guaranteed to a probationer at a probation revocation hearing. The right of confrontation at a probation revocation hearing differs, however, from the right of confrontation at a criminal trial and some hearsay may be admitted in a revocation hearing.  Id.

   Proffered evidence generally is first tested against the formal rules of evidence to determine whether it fits any of the "firmly rooted" exceptions to the hearsay rule.  If it fits, then it ordinarily will [***14] be admitted at a criminal trial or a probation revocation proceeding over a Confrontation [*699]Clause objection.  White v. Illinois,    U.S.   ,    , 112 S.Ct. 736, 743, 116 L.Ed.2d 848, 859 (1992); Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 2539, 65 L.Ed.2d 597, 608 (1980) ("'hearsay rules and the Confrontation Clause are generally designed to protect similar values . . . and stem from the same roots'" (Citations omitted)).  However, hearsay evidence not coming within any firmly rooted hearsay exception may still be admitted at a probation revocation hearing if the trial judge decides that it is "reasonably reliable" and determines that there is good cause for its [**293] admission.  Fuller, 308 Md. at 553, 520 A.2d at 1318.

   The question of what constitutes good cause to admit hearsay has never been fully resolved in Maryland.  As we noted in Fuller, the Supreme Court has not provided much guidance on the subject.  Id. at 553 n. 5, 520 A.2d at 1318 n. 5. We recognized in Fuller[***15] that good cause "need not reach the high standard governing the admissibility of hearsay evidence at criminal trials." Id. Some of the factors that are relevant to this good cause determination are: the availability of the hearsay declarant, the reliability of the State's evidence offered in lieu of live testimony, and whether the evidence is offered to prove the principal contested issue in the violation or a matter peripheral thereto.  Id. at 553-54 n. 5, 520 A.2d at 1318 n. 5. In determining whether there is good cause to admit hearsay in a probation revocation hearing, it is obvious that the most important factor is the reliability of the proffered hearsay evidence. Indeed, many courts have held that whenever the proffered hearsay evidence has substantial guarantees of trustworthiness the hearsay is admissible without the need to establish any additional good cause. See, e.g., Egerstaffer v. Israel, 726 F.2d 1231, 1234 (7th Cir.1984); United States v. Burkhalter, 588 F.2d 604, 607 (8th Cir.1978); United States v. Pattman, 535 F.2d 1062, 1064 (8th Cir. 1976).[***16] We agree with the statement in Egerstaffer that "a probationer's due process rights will be amply protected [*700]whenever proffered evidence bears substantial indicia of reliability." 726 F.2d at 1235.

   We turn now to Bailey's contention that the St. Paul House letter was not reasonably reliable. Under the standards of Gagnon and Fuller, we find that the St. Paul House letter was sufficiently reliable to satisfy both evidentiary and constitutional requirements when admitted for the limited purpose of showing that Bailey did not complete the St. Paul House program.  Thus, the trial court did not err by admitting it in the probation revocation hearing.

   A.

   The reliability of hearsay introduced by a party at a probation revocation hearing is essentially a fact specific issue.  As such, it is difficult for this Court to formulate any bright-line standards, and we must rely on the trial judge's discretion.  The trial judge's determination must stand unless we can find an abuse of discretion.  See Dopkowski, 325 Md. at 678, 602 A.2d at 1188. Several factors help determine whether hearsay evidence [***17] bears a sufficient degree of reliability so as not to offend the Confrontation Clause at a probation revocation hearing. These factors include: the presence of any additional evidence which corroborates the proffered hearsay; the type of and centrality of the issue that the hearsay is being offered to prove; and the source of the hearsay, including the possibility of bias or motive to fabricate. This is not an all-inclusive list, as other factors may affect a court's evaluation of reliability. Furthermore, the facts and circumstances of a particular case may undermine the trustworthiness of hearsay evidence that otherwise might enjoy a high degree of reliability. Compare United States v. Penn, 721 F.2d 762, 765-66 (11th Cir.1983) (noting the general reliability of urinalysis drug tests and permitting admission in probation revocation hearing) with Wilson v. State, 70 Md.App. 527, 534, 521 A.2d 1257, 1261 (1987) (recognizing that other courts have found the type of test reliable, but finding that this particular urinalysis test was unreliable [*701] since the lab did not perform a backup test or identify[***18] lab test results, and State left questions about how probationer's diabetes affected the results).

   Courts have looked to various considerations as possible indicators of reliability. One of these factors is the presence of corroborative evidence. See, e.g., Egerstaffer v. Israel, 726 F.2d 1231, 1235 (7th Cir.1984); People v. Maki, 39 Cal.3d 707, 217 Cal.Rptr. 676, 683, 704 P.2d 743, 750 (1985); State v. Finch, 153 Vt. 216, 569 A.2d 494, 495 (1989). For example, in Finch, the Supreme Court of Vermont upheld a lower court's revocation of probation where three [**294]sources of hearsay evidence corroborated each other.  In that case, Finch was placed on probation subject to the condition that he not purchase, drink, or possess alcohol.  At Finch's revocation hearing, the trial court found that he had violated this condition of his probation on the basis of his probation officer's hearsay testimony.  The probation officer testified that Finch's mother told him that Finch went to work intoxicated and police had to physically remove him from the workplace. [***19] The probation officer likewise talked with a police officer who removed Finch from his place of work and testified that the officer had told him that during the incident Finch was both verbally and physically assaultive.  Finally, the probation officer relied on a report from a detoxification center indicating that Finch received treatment there after the incident at his workplace.  The Vermont Supreme Court upheld the revocation. It found that the mother and police officer were sufficiently reliable hearsay sources since their statements concerned the same event and corroborated each other.  It also noted that the detoxification center report appeared to be the kind of report where the "specter of questionable credibility and veracity is not present." Id. [569 A.2d] at 495.

   A second consideration may be whether the proffered hearsay is an objective fact reported by the declarant or instead contains conclusions which ought to be tested by cross-examination.  For instance, in United States v. Pattman, [*702]535 F.2d at 1063, the terms of Pattman's probation had required him both to notify his probation officer if he was arrested and to remain[***20] at all times in the Eastern District of Missouri.  The court upheld the admission of a police report, without the testimony of the arresting officer, to show that Pattman had been arrested in the Western District of Missouri and failed to report it.  In United States v. Bell, 785 F.2d 640 (8th Cir.1986), a condition of Bell's probation was that he "obey all local, state and federal laws." Id. at 642. He was subsequently arrested for driving while intoxicated, possession of marijuana, and possession of narcotic paraphernalia.  At his probation revocation hearing, the state sought to have the arrest report admitted as evidence of Bell's probation violation, and it was admitted by the trial judge.  Reviewing the admissibility of the report, the Eighth Circuit used Pattman to draw a distinction.  It said that "[w]hile police reports may be demonstrably reliable evidence of the fact that an arrest was made . . . they are significantly less reliable evidence of whether the allegations of criminal conduct they contain are true." Bell, 785 F.2d at 644. Thus, whether proffered hearsay evidence[***21] is a straightforward, objective fact observed by the declarant, or whether it contains inferences or conclusions drawn by the declarant, will weigh in the court's determination of its reliability.

   Third, the source of the proffered hearsay as well as any bias or motive to fabricate by the hearsay declarant may be an indicator of its reliability. Compare Brown v. State, 317 Md. 417, 423-25, 564 A.2d 772, 775 (1989) (codefendant's statements which reduced his own culpability and inculpated defendant found inherently unreliable); with Beach v. State, 75 Md.App. 431, 437, 541 A.2d 1012, 1014 (1988) (letters from state sanctioned probation program found reliable because of trustworthiness of source and absence of any motive to fabricate).  In Beach, the Court of Special Appeals decided a case very similar to the one at hand.  There, Beach's probation was conditioned on his completion of a program at Second Genesis, a state-sanctioned halfway [*703] house. After a revocation hearing, the trial judge revoked Beach's probation. The basis of revocation was a letter from Second Genesis stating[***22] that Beach had "absconded from the program." In affirming the circuit court, the Court of Special Appeals held that regardless of whether the letter was admissible as a business record, it was admissible as "reasonably reliable hearsay." The court reasoned that
  
"[f]or probation to remain a viable alternative to incarceration, compliance with the conditions laid down by the court must be carefully and effectively monitored.  It is therefore important, and expected, [**295] that when, as a condition to probation, a person is committed to a program operated by a third-party contractor, that contractor will inform the court or the Division of Parole and Probation if the committed person absconds or otherwise fails in some significant way to comply with the governing condition.  The letter . . . was not merely a gratuitous gesture . . . but rather a compliance with its obligation to the court.  Moreover, it is the kind of letter upon which the Division was entitled, and indeed obligated, to act . . . .  [T]he letter certainly had a kind of generic reliability. One would not expect a contractor such as Second Genesis to make a false report; nor does the record reveal any motive for it to do[***23] so in this case."
 
Id. at 436-37, 541 A.2d at 1014. Simply stated, the source of the proffered hearsay bolstered its reliability. We note that other courts have admitted hearsay reports from treatment centers in probation violation proceedings.  See, e.g., United States v. McCallum, 677 F.2d 1024 (4th Cir.), cert. denied, 459 U.S. 1010, 103 S.Ct. 365, 74 L.Ed.2d 400 (1982); Marshall v. Commonwealth, 638 S.W.2d 288 (Ky.App.1982).

   B.

   On the facts before us, we hold that the trial judge did not err in finding the St. Paul House letter reasonably reliable on the issue of whether Bailey completed the St. [*704] Paul House program.  Several of its characteristics provide sufficient indicia of reliability under the principles discussed above.

   First, the trial judge was entitled to place great weight on the fact that the St. Paul House letter was corroborated by Bailey's own tacit admissions to his probation officer. Thus, the letter did not stand by itself.

   Second, the probation condition is a straightforward one. [***24] Bailey either did or did not successfully complete the program, and the St. Paul House letter was admitted for the simple, objective, and uncontroverted fact that Bailey did not successfully complete the program.  The trial judge indicated that he found the letter to be "inherently reliable," particularly on the issue of his "leaving the [St. Paul] House." We might have a different case if the State were alleging that Bailey violated his probation based on characterizations of Bailey's behavior or opinions about his motivation that were contained in the letter.  The trial judge, however, ascribed reliability to and utilized only the portions of the letter which indicated Bailey did not complete the St. Paul House program.  As the trial transcript indicates, the court did not rely on those portions of the letter which drew conclusions about and characterized Bailey's behavior, presumably because these were irrelevant to the issue for which the State introduced the letter.

   Bailey also contends that the letter was offered to prove the additional proposition that the violation was willful.  The State, however, does not carry the burden of proving the violation was willful -- only that[***25] the violation occurred.  Proving that the violation resulted through no fault of his own is the probationer's burden.  The letter was offered by the State solely to meet its burden of proving that Bailey did not successfully complete the St. Paul House six month program.  Bailey then had the burden of showing that he was discharged from the program through no fault of his own.  Bailey's only and rather weak attempt to offer any such evidence was through the testimony of his father who [*705] could merely relate hearsay statements about what Bailey had told him regarding why he left St. Paul House.

   Third, we find the source of the hearsay statement a reliable one, applying the persuasive analysis in Beach v. State.  Like Second Genesis in Beach, St. Paul House, a structured half-way house, occupied a special role in the State's probation system.  St. Paul House, like Second Genesis, was duty-bound to report to the Division of Parole and Probation or the court any failure of the probationer to comply with its conditions for the completion of its program. St. Paul House's letter was not a gratuitous gesture, but a means of fulfilling its obligation to the State.  The trial[***26] [**296] judge was justified in determining that the letter had a sufficient degree of reliability and credibility.  While the fact that a letter is generated by a sanctioned rehabilitation program is not always dispositive of its reliability, this letter was admitted for its simple and, we think, reliable statement that Bailey prematurely left the program.  Although the letter's second half goes much further, the judge made it plain that the portion of the letter on which he was relying was the portion concerning Bailey's departure from St. Paul House.  We doubt that the letter's other strong language was capable of distracting a seasoned trial judge and affecting his ultimate determination of a case.

   In conclusion, considering the presence of corroborative evidence, the narrowness of the proposition the State sought to establish, and the source of the hearsay statement, we agree with the trial judge that the hearsay statement contained in the St. Paul House letter was reasonably reliable.

   We further hold that good cause to admit the letter was apparent from the record.  As we stated above, a trial judge may consider the reliability of the proffered hearsay as a major factor in determining[***27] good cause to admit the hearsay. In addition, the trial judge was also entitled to consider the inconvenience of calling a witness from St. Paul House to prove the uncontested fact that Bailey failed [*706] to complete the program, a fact Bailey implicitly acknowledged in his discussions with his probation officer and also corroborated through his father's testimony.  The fact that the letter's author was not shown to be unavailable is not dispositive.  The same reasons that an author of a business record need not be shown to be unavailable (i.e., inconvenience, probable lack of recollection of a routine business event, etc.) to admit the business record could also be considerations in determining good cause to admit the St. Paul House letter without establishing the unavailability of the letter's author.

   For the reasons indicated, we find that good cause existed to admit the hearsay and that Bailey's right of confrontation was not impinged upon.  The trial judge did not err in admitting the letter to establish that Bailey failed to successfully complete the six month program at St. Paul House.

   JUDGEMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED.  COSTS IN THIS COURT AND IN[***28] THE COURT OF SPECIAL APPEALS TO BE PAID BY PETITIONER. 

ALLSTATE INSURANCE COMPANY v. Frances HART 
No. 109, September Term, 1990
 
COURT OF APPEALS OF MARYLAND
 
327 Md. 526; 611 A.2d 100; 1992 Md. LEXIS 142

 August  25, 1992

   SUBSEQUENT HISTORY: [***1] As Corrected August 27, 1992.

PRIOR HISTORY: Certiorari to Court of Special Appeals. (Circuit Court for  Anne    Arundel  County). H. Chester Goudy, Jr., JUDGE

DISPOSITION: JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED, AND CASE REMANDED TO THAT COURT WITH DIRECTIONS TO AFFIRM THE JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY.  RESPONDENT TO PAY COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS. 
CASE SUMMARY 

PROCEDURAL POSTURE:  Petitioner appealed judgment by the Court of Special Appeals (Maryland) ruling that a household exclusion provision in a Florida automobile insurance policy, issued on a Florida registered automobile and valid under Florida law, should not be enforced by Maryland courts because of Maryland's public policy.

OVERVIEW:  Petitioner and her husband maintained a residence in Florida, but not in Maryland, and were co-owners of an automobile, which was registered in Florida, exhibited Florida license tags, and was covered by an insurance policy that was executed, issued, and delivered in Florida by respondent. Petitioner's husband was the named insured in the policy. The policy contained a household exclusion clause, under which liability coverage was excluded for bodily injury to a person related to the insured and residing in the insured's household. Petitioner was injured while a passenger in the car. Petitioner filed a tort suit, naming as defendants both her husband and the driver. Respondent declined to provide coverage because of the household exclusion clauses. The court held that Maryland public policy against household exclusion clauses did not apply because the statutory provision enforcing the public policy were not applicable since the automobile was not required to be registered in Maryland and the policy was not issued, sold, or delivered in Maryland.

OUTCOME:  The court reversed and remanded, holding that the state public policy against household exclusion clauses was not applicable under the facts of the case.
 
CORE TERMS:  household, public policy, coverage, liability coverage, exclusion clause, lex loci contractus, motor vehicle, insurance policy, insurance policies, registered, invalid, compulsory insurance, mandating, automobile insurance policy, automobile insurance, statutorily required, sufficiently strong, compulsory, Maryland Vehicle Law, contractual provision, liability insurance, insured household, indemnification, constituting, promisee, writ of certiorari, westbound, insured

CORE CONCEPTS -  

Contracts Law: Defenses: Public Policy Violations
Contracts Law: Contract Interpretation: General Rules
In deciding questions of interpretation and validity of contract provisions, Maryland courts ordinarily should apply the law of the jurisdiction where the contract was made. This is referred to as the principle of lex loci contractus. There is a limited exception to the rule of lex loci contractus, however, when a contractual provision is contrary to Maryland public policy. Nevertheless, for Maryland public policy to override the lex loci contractus rule, the public policy must be very strong and not merely a situation in which Maryland law is different from the law of another jurisdiction. Moreover, there is a heavy burden on him who urges rejection of foreign law on the ground of public policy. 

Insurance Law: Automobile Insurance: Household Exclusions
It is undisputed that a household exclusion clause in an automobile insurance policy is valid under Florida law.

Insurance Law: Automobile Insurance: Household Exclusions
The invalidity of household exclusion clauses in motor vehicle insurance policies is based entirely upon the specific statutory provisions mandating motor vehicle insurance, requiring particular coverages at specified minimums, authorizing some exceptions and exclusions, and generally not authorizing other exclusions from the required coverages.

COUNSEL: Edward C. Mackie (Rollins, Smalkin, Richards & Mackie, on brief), Baltimore, for petitioner.

   Alan Hilliard Legum, Annapolis, for respondent.

JUDGES: Murphy, C.J., Eldridge, Rodowsky, McAuliffe, Chasanow, Charles E. Orth, Jr., Judge of the Court of Appeals (ret., Specially Assigned), Marvin H. Smith, Judge of the Court of Appeals (ret., Specially Assigned), JJ.

OPINIONBY: ELDRIDGE

OPINION: [*528]

   [**100]

   The Court of Special Appeals in this case held that a household exclusion provision in a Florida automobile insurance policy, issued on a Florida registered automobile [**101] and valid under Florida law, should not be enforced by Maryland courts because of Maryland's public policy. We granted a petition for a writ of certiorari to review that holding.

   The relevant facts were stipulated to by the parties.  Both at the time of the accident giving[***2] rise to this case, and at the time the case was decided by the circuit court, Frances Hart and her husband, George Hart, maintained a residence in New York and in Florida, but not in Maryland.  They were co-owners of an automobile which was registered in Florida and exhibited Florida license tags.  The automobile was covered by an automobile insurance policy which was executed, issued and delivered in Florida by Allstate Insurance Company.  George Hart was the named insured in the policy.  The policy contained a household exclusion clause, under which liability coverage was excluded for bodily injury to a person related to the insured and residing in the insured's household.

   In late 1985, George Hart was driving the automobile in Anne Arundel County, Maryland, with Frances Hart as a passenger.  The Hart automobile had just exited from southbound Route 3 by an exit ramp leading to westbound Route 32, when it was struck in the rear by a vehicle going westbound on Route 32 and driven by William Leroy McNatt.  Frances Hart was injured in the accident.

   Thereafter, Frances Hart filed a tort suit in the Circuit Court for Anne Arundel County, naming as defendants both her husband, George [***3] Hart, and William Leroy McNatt.  Mrs. Hart alleged that both Mr. Hart and Mr. McNatt were negligent, and that the negligence of each contributed to the accident.

   Allstate Insurance Company declined to provide coverage for George Hart because of the household exclusion clause in the insurance policy. Thereupon Frances Hart commenced [*529] the present action by filing in the Circuit Court for Anne Arundel County, against Allstate, a complaint for a declaratory judgment.  Mrs. Hart sought a declaration that the household exclusion clause was invalid because of Maryland public policy and that Allstate was responsible for providing liability coverage to George Hart.

   After a hearing and after considering legal memoranda, the circuit court (Goudy, J.) rendered a judgment declaring that Allstate was not responsible for providing liability coverage. The circuit court pointed out that the meaning and validity of the household exclusion clause would ordinarily be determined in accordance with Florida law under the principle of lex loci contractus.  The court also pointed out that it was conceded that the clause was valid under Florida law.  While household exclusion clauses are generally[***4] invalid in Maryland to the extent of the compulsory liability coverage under Maryland law, the circuit court held that Maryland's public policy was not sufficiently strong to justify a refusal to apply Florida law.

   Upon Frances Hart's appeal, the Court of Special Appeals reversed, "hold[ing] that Maryland public policy is sufficiently strong as to require application of Maryland law, in this case, rather than the rule of lex loci contractus." Hart v. Allstate Ins. Co., 83 Md.App. 642, 648, 577 A.2d 373, 376 (1990). Thereafter this Court granted Allstate's petition for a writ of certiorari.

   In deciding questions of interpretation and validity of contract provisions, Maryland courts ordinarily should apply the law of the jurisdiction where the contract was made.  This is referred to as the principle of lex loci contractus. Kramer v. Bally's Park Place, 311 Md. 387, 390, 535 A.2d 466, 467 (1988); Bethlehem Steel v. G.C. Zarnas & Co., 304 Md. 183, 188, 498 A.2d 605, 607 (1985), and cases there cited.

   It is undisputed that a household exclusion[***5] clause in an automobile insurance policy is valid under Florida law.  See also, e.g., Fitzgibbon v. Government Employees Insurance [*530] Co., 583 So.2d 1020, 1021 (Fla.1991); Florida Farm Bureau Ins. Co. v. Government Employees Insurance Co., 387 So.2d 932, 934 (Fla.1980); Reid v. State Farm Fire & Cas. Co., 352 So.2d 1172, 1173 (Fla.1977). Since the insurance contract in this case was made in Florida, [**102]application of the principle of lex loci contractus would lead to the conclusion that the household exclusion clause in Allstate's insurance policy was valid and that, therefore, the insurance policy did not afford liability coverage for George Hart under the circumstances here.

   There is a limited exception to the rule of lex loci contractus, however, when a contractual provision is contrary to Maryland public policy. "Nevertheless, for Maryland public policy to override the lex loci contractus rule, the public policy must be very strong and not merely a situation in which Maryland law is different from the law of another jurisdiction." Kramer v. Bally's Park Place, supra, 311 Md. at 390, 535 A.2d at 467.[***6] See Bethlehem Steel v. G.C. Zarnas & Co., supra, 304 Md. at 189, 498 A.2d at 608; Harford Mutual v. Bruchey, 248 Md. 669, 676, 238 A.2d 115, 119 (1968); Texaco v. Vanden Bosche, 242 Md. 334, 340, 219 A.2d 80, 83 (1966). Moreover, "there is a heavy burden on him who urges rejection of foreign law on the ground of public policy," Harford Mutual v. Bruchey, supra, 248 Md. at 674, 238 A.2d at 117-118.

   Maryland's public policy with regard to household exclusion clauses in motor vehicle insurance policies, in light of Maryland's compulsory motor vehicle insurance law, has been the subject of two recent decisions by this Court, Jennings v. Government Employees Ins., 302 Md. 352, 488 A.2d 166 (1985), and State Farm Mut. v. Nationwide Mut., 307 Md. 631, 516 A.2d 586 (1986).

   The Jennings case, like the case at bar, was a declaratory judgment action by a member of the insured household, injured because of the negligent[***7] driving of another member of the insured household, against their automobile insurance company which had denied liability coverage in reliance [*531] on the household exclusion clause. This Court held that "the household exclusion clause is inconsistent with the public policy which the General Assembly adopted in Ch. 73 of the Acts of 1972, providing for compulsory automobile insurance for all Maryland automobiles with specified required coverages." Jennings v. Government Employees Ins., supra, 302 Md. at 357, 488 A.2d at 168.

   Our decision in Jennings was specifically based upon those provisions of the Insurance Code and the Maryland Vehicle Law mandating that "automobiles, plus many other types of motor vehicles, be covered by automobile insurance policies containing certain types of required coverages." 302 Md. at 357, 488 A.2d at 168-169. The Court in Jennings specifically referred to Maryland Code (1977, 1984 Repl. Vol.), § 17-103(b) of the Transportation Article, and Code (1957, 1979 Repl. Vol., 1984 Cum. Supp.), Art. 48A, §§ 539-541, which require in specified minimum amounts[***8] bodily injury liability insurance, property damage liability insurance, personal injury protection (PIP) benefits regardless of fault, and uninsured motorist insurance, and which require that specified other coverages be offered.  302 Md. at 358, 488 A.2d at 169.
 
   In Jennings we pointed out that in that various statutory provisions constituting the compulsory insurance law, "the General Assembly expressly authorized specified exclusions from the required coverages." 302 Md. at 358, 488 A.2d at 169. The Jennings opinion, 302 Md. at 358-359, 488 A.2d at 169, went on to reiterate the principle, applied in numerous cases, "that generally we will not insert exclusions from the required coverages beyond those expressly set forth by the Legislature," citing DeJarnette v. Federal Kemper Ins. Co., 299 Md. 708, 725, 475 A.2d 454, 463 (1984), and Pennsylvania Nat'l Mut. v. Gartelman , 288 Md. 151, 156, 416 A.2d 734, 737 (1980). More recently we set forth the same principle[***9] in the following language ( Gable v. Colonial Ins. Co., 313 Md. 701, 704, 548 A.2d 135, 137 (1988)):
"As a matter of statutory construction, where the Legislature has required specified coverages in a particular [*532] category of insurance, and has provided for certain exceptions or exclusions to the required coverages, additional exclusions are generally not permitted."
 
See also, e.g., Larimore v. American Ins. Co., 314 Md. 617, 622, 552 A.2d 889, 891 [**103] (1989); Nationwide v. USF & G, 314 Md. 131, 141, 550 A.2d 69, 74 (1988); Lee v. Wheeler, 310 Md. 233, 239, 528 A.2d 912, 915 (1987). The Court in Jennings quoted Art. 48A, § 541(c)(2)(i), where the Legislature had specifically authorized the household exclusion with regard to uninsured motorist coverage under certain circumstances.  302 Md. at 359-360, 488 A.2d at 170. See also Art. 48A, § 545(c), authorizing a household exclusion from PIP coverage under particular circumstances.  The Jennings[***10] opinion, observing that "[n]o similar provision has been enacted with regard to the required liability coverage," stated that "if the Maryland Legislature had intended to permit the household exclusion from required liability coverage, it would have said so." 302 Md. at 359-360, 488 A.2d at 170.

   In State Farm Mut. v. Nationwide Mut., supra, 307 Md. 631, 516 A.2d 586, the Court pointed out that the Jennings holding was based entirely upon the statutory provisions requiring specified minimum liability coverage; it was not based on any general or historic principle of public policy. 307 Md. at 635-637, 516 A.2d at 587-588. The Court thus held in State Farm that "a 'household exclusion' clause in an automobile liability insurance policy is invalid to the extent of the minimum statutory liability coverage" but that "it is a valid and enforceable contractual provision as to coverage above that minimum." 307 Md. at 644, 516 A.2d at 592.

   Consequently, it is clear from the Jennings and State Farm cases [***11] that the invalidity of household exclusion clauses in motor vehicle insurance policies is based entirely upon the specific statutory provisions mandating motor vehicle insurance, requiring particular coverages at specified minimums, authorizing some exceptions and exclusions, and generally not authorizing other exclusions from the required [*533] coverages. Jennings and State Farm do not support, and in fact reject, the notion that there is a public policy hostile to household exclusion clauses which extends beyond the scope of the statutorily required insurance coverages.

   The General Assembly in the Vehicle Law and the Insurance Code precisely delineated, in terms of vehicles and insurance policies, the scope of the statutorily required motor vehicle insurance coverages. Under Code (1977, 1987 Repl.Vol.), § 17-104(b) of the Transportation Article, the required insurance coverages must be maintained on "a motor vehicle that is required to be registered in this State . . . ." In addition, under Code (1957, 1991 Repl.Vol.), Art. 48A, § 541(a), the statutorily required coverages must be included in "every policy of motor vehicle liability insurance issued, sold, or delivered[***12] in this State . . . ." See Larimore v. American Ins. Co., supra, 314 Md. at 618-619, 552 A.2d at 889.

   If an automobile is not required to be registered in Maryland, and if the insurance policy covering an automobile was not issued, sold, or delivered in Maryland, the statutory provisions mandating particular insurance coverages, authorizing specified exclusions from those coverages, and generally not authorizing other exclusions, are totally inapplicable.  If those statutory provisions are inapplicable, then the limited prohibition against household exclusion clauses, which is based entirely on those statutory provisions, is also inapplicable.  To hold that the limited prohibition against household exclusion clauses, grounded entirely on the statutory provisions constituting the compulsory insurance law, extends to an automobile which is not required to be registered in Maryland and which is not covered by an insurance policy issued, sold, or delivered in Maryland, would be to extend the statutory provisions beyond the limits carefully drawn by the Legislature.

   Since the Maryland public policy against household exclusion clauses is a circumscribed[***13] one, applicable only to specified categories of insurance policies and coverages, and [*534] since the insurance policy and liability coverage in the present case do not fall within any of those categories, it would seem to follow that the household exclusion here is not at all inconsistent with Maryland public policy. Even if Florida law were not applied, under the circumstances of this case the household exclusion clause [**104]would appear to be valid under Maryland law.

   In any event, in light of the limited nature of Maryland's public policy against household exclusion clauses and the express statutory permissibility of household exclusion clauses under some circumstances (Art. 48A, §§ 541(c)(2)(i) and 545(c)), we cannot conclude that there is a sufficiently strong Maryland public policy against household exclusion clauses that would justify disregarding the lex loci contractus principle under the facts of this case. n1 See Kramer v. Bally's Park Place, supra, 311 Md. at 396, 535 A.2d at 470.

n1 It should be noted, however, that we are not holding that the lex loci contractus principle will always be applied to household exclusion clauses in insurance policies. For example, if a family had lived in Florida when the insurance policy on the family automobile was issued in Florida, but moved to Maryland during the life of the policy, and if Maryland law required that the family car be registered in Maryland, the Maryland compulsory insurance statutes, as construed in the Jennings case, would seem to mandate that the household exclusion clause not be enforced to the extent of the minimum required liability coverage.

[***14]

    Under circumstances similar to those in the case at bar, courts in other jurisdictions have reached the same conclusion and have applied the principle of lex loci contractus. See, e.g., Breen v. Aetna Casualty & Surety Co., 153 Conn. 633, 637, 220 A.2d 254, 256-257 (1966); Draper v. Draper, 115 Idaho 973, 975, 772 P.2d 180, 182 (1989); Sotirakis v. U.S.A.A., 106 Nev. 123, 126-127, 787 P.2d 788, 791-792 (1990); Priddle v. Insurance Company, 100 N.H. 73, 75, 119 A.2d 97, 99 (1955); Empire Mutual Insurance Co. v. Melburg, 67 N.J. 139, 336 A.2d 483 (1975); Roomy v. Allstate Insurance Co., 256 N.C. 318, 322, 123 S.E.2d 817, 820 (1962); Dairyland Ins. v. State Farm, 41 Wash.App. 26, 31-32, 701 P.2d 806, 809, review denied, 104 Wash.2d [*535] 1016 (1985); Knight v. Heritage Mut. Ins. Co., 71 Wis.2d 821, 825, 239 N.W.2d 348, 351 (1976).[***15]

   In refusing to apply Florida law, and in holding that the household exclusion clause was invalid under Maryland public policy, the Court of Special Appeals relied on Bethlehem Steel v. G.C. Zarnas & Co., supra, 304 Md. 183, 498 A.2d 605. Bethlehem Steel involved a construction contract, executed in Pennsylvania, to be performed in Maryland, under which the "promisor agreed to indemnify the promisee against liability for damages resulting from the sole negligence of the promisee." 304 Md. at 185, 498 A.2d at 606. We refused to apply Pennsylvania law, which permitted such an indemnification provision, because of the public policy set forth in Code (1974, 1989 Repl.Vol.), § 5-305 of the Courts and Judicial Proceedings Article.  In § 5-305, the General Assembly had expressly declared that such an indemnification provision was "against public policy." In addition, § 5-305 explicitly stated that such a clause was "void and unenforceable." Thus, as pointed out in Bethlehem Steel, supra, 304 Md. at 190, 498 A.2d at 608, the Legislature had "unequivocally[***16] told the Maryland judiciary" not to enforce the clause.  There are no provisions comparable to § 5-305 in the Maryland Vehicle Law or the Maryland Insurance Code applicable to household exclusions in insurance policies. Finally, unlike the statutory provisions involved in the present case, the pertinent statutory provision in Bethlehem Steel was not limited to certain contracts, such as ones entered into in Maryland.  Instead, § 5-305 of the Courts and Judicial Proceedings Article applied generally to indemnity clauses in construction contracts, without any territorial statutory limitations.  The Bethlehem Steel case furnishes no support for the Court of Special Appeals' decision here.

   JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED, AND CASE REMANDED TO THAT COURT WITH DIRECTIONS TO AFFIRM THE JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY.  [*536] RESPONDENT TO PAY COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS. 

Edward F. ROACH et ux. v. COMPTROLLER OF THE TREASURY 
No. 76, September Term, 1990
 
COURT OF APPEALS OF MARYLAND
 
327 Md. 438; 610 A.2d 754; 1992 Md. LEXIS 137

 August  20, 1992, Filed

   PRIOR HISTORY: [***1]

   Appeal from the Circuit Court for  Anne Arundel  County pursuant to Court of Special Appeals. H. Chester Goudy, Jr., JUDGE

DISPOSITION: JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY REVERSED, AND CASE REMANDED TO THAT COURT WITH DIRECTIONS TO REVERSE THE DECISION OF THE TAX COURT AND REMAND THE CASE TO THE TAX COURT FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.  APPELLEE TO PAY COSTS.

CORE TERMS:  income tax, unincorporated business tax, franchise tax, net income, characterization, unincorporated, resident, personal income, taxable income, declaration, unincorporated business, income paid, partnership, levied, Home Rule Act, tax credit, invoked, per centum, misunderstood, nonresident, undertake, professed, carrying, engaging, privilege of doing business, statutory language, appeal dismissed, tax statute, set forth, tax paid

COUNSEL: Kerry W. Kircher (Zuckerman, Spaeder, Goldstein, Taylor & Kolker, both on brief), Washington, District of Columbia, for appellants.

   Sheldon H. Laskin, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Deborah B. Bacharach, Gaylin Soponis, Asst. Attys. Gen., all on brief), Baltimore, for appellee.

JUDGES: Eldridge, Rodowsky, McAuliffe, Chasanow and Karwacki, JJ., and Charles E. Orth, Jr., and Marvin H. Smith, Judges of the Court of Appeals (retired), Specially Assigned.

OPINIONBY: ELDRIDGE

OPINION: [*439] [**754]

   Maryland Code (1988), § 10-703(a) of the Tax-General Article, provides, with certain exceptions not here relevant, that
"an individual may claim a credit only against the State income tax for a taxable year in the amount determined under subsection (c) of this section for tax on income paid to another[***2] state for the year." (Emphasis added). 
 
This appeal presents the question of whether the District of Columbia's tax on unincorporated businesses, D.C.Code Ann. § 47-1808.1 through § 47-1080.7 (1981, 1990 Repl. Vol.), is a "tax on income" under the above-quoted Maryland statute so that the taxpayers in this case are entitled to claim a credit against their Maryland income taxes.

   The pertinent facts of this case are not in dispute.  The taxpayers, Edward F. Roach and his wife, Josephine D. Roach, are residents of Annapolis, Maryland. Mr. Roach, during the 1986 tax year, was a 50% owner of a District of Columbia partnership called Roach & Seagraves.  Pursuant to § 47-1808.1 of the D.C.Code, Mr. Roach paid taxes to the District of Columbia on income he realized through the partnership. On their 1986 joint Maryland income tax return, pursuant to § 10-703 of the Tax-General Article of [*440] the Maryland Code, the Roaches claimed as a credit against their Maryland income tax the amount of the tax on income paid to the District of Columbia.  The Maryland Comptroller, however, disallowed the credit, and entered an assessment [**755] against the Roaches for unpaid tax, interest and[***3] penalties.

   The Maryland Tax Court upheld the Comptroller's assessment solely on the basis of this Court's decision in Gardella v. Comptroller, 213 Md. 1, 130 A.2d 752 (1957). Upon the Roaches' action for judicial review, the Circuit Court for Anne Arundel County affirmed the Tax Court's decision, also relying entirely upon Gardella.  The Roaches appealed, and this Court issued a writ of certiorari prior to argument in the Court of Special Appeals.

   Title 47, Ch. 18, subchapter VIII of the D.C.Code, comprising §§ 47-1801.1 through 47-1808.7, originally enacted by the District of Columbia Council as part of the Revenue Act of 1975, n1 entitled "Tax on Unincorporated Businesses," provides in relevant part as follows:
 
"§ 47-1808.1.  Tax on unincorporated businesses -- Definition.

   "For the purposes of this chapter (not alone of this subchapter) and unless otherwise required by the context, the words 'unincorporated business' mean any trade or business, conducted or engaged in by any individual, whether resident or nonresident, statutory or commonlaw trust, estate, partnership, or limited or special partnership, society, association, [***4] executor, administrator, receiver, trustee, liquidator, conservator, committee assignee, or by any other entity or fiduciary, other than a trade or business conducted or engaged in by any corporation and include any trade or business which if conducted or [*441]engaged in by a corporation would be taxable under subchapter VII of this chapter . . . .

   * * *
 
"§ 47-1808.2.  Same -- Definitions.

   "For purposes of this subchapter, the words:

   (1) 'Taxable income' mean the amount of net income derived from sources within the District . . . ."

    * * *
 
"§ 47-1808.3.  Same -- Levy and rates.

   "(a) Except as exempted under subchapter II of this chapter, for the privilege of carrying on or engaging in any trade or business within the District and of receiving income from sources within the District, there is levied:

   (1) For 1 taxable year beginning after December 31, 1974, a tax at the rate of 12 per centum upon the taxable income of every unincorporated business, whether domestic or foreign;

   (2) For the taxable years beginning after December 31, 1975, a tax at the rate of 9 per centum upon the taxable income of every unincorporated business, whether domestic or foreign, except that, [***5] effective October 1, 1984, the rate of tax shall be 10 per centum upon the taxable income for any taxable period; and

   (3) A surtax on the tax determined under paragraph (2) of this subsection at the following rates

   * * *
 
"§ 47-1808.5.  Same -- Persons liable for payment.

   "The taxes imposed by § 47-1808.3 shall be payable by the person or persons, jointly and severally, conducting the unincorporated business. The taxes imposed under this subchapter may be assessed in the name of the unincorporated business or in the name or names of the person or persons liable for the payment of such taxes, or both."
 
Thus, the tax imposed by the above-quoted statutory provisions applies to partnerships, and an individual partner is liable for the tax.  The tax is a percentage of "taxable [*442] income" which is defined as "net income derived from sources within the District."

n1 See Bishop v. District of Columbia, 401 A.2d 955 (D.C.App.1979), affirmed in banc, 411 A.2d 997 (D.C.App.), cert. denied, 446 U.S. 966, 100 S.Ct. 2943, 64 L.Ed.2d 825 (1980).

[***6]

   In Gardella v. Comptroller, supra, 213 Md. 1, 130 A.2d 752, this Court examined a prior District of Columbia unincorporated business tax which was substantially similar to the present tax on unincorporated businesses.  Our predecessors concluded in Gardella that the tax was a franchise tax and not an income tax and that, therefore, [**756] a Maryland taxpayer, who was a partner in a District of Columbia business, was not entitled to a credit against his Maryland income tax for the tax paid to the District of Columbia.  The Gardella opinion relied upon the District of Columbia's characterization of the tax, set forth in the statutory language, as a "franchise tax" which is "imposed on the privilege of carrying on and engaging in a trade or business in the District of Columbia and of receiving income from sources within said District . . . ." Gardella v. Comptroller, supra, 213 Md. at 4, 130 A.2d at 753. The Court in Gardella stated that, while a jurisdiction's "declaration that a tax shall be of a particular character does not make it such, nevertheless, the declaration of the[***7] law making power is entitled to much and respectful weight." Ibid. Although acknowledging that the tax was imposed on "taxable income," the Gardella opinion concluded that merely because a franchise tax is measured by a business's income does not make it an income tax. 213 Md. at 4-5, 130 A.2d at 754.

   As previously indicated, the statute involved in the Gardella case was replaced by provisions of the District of Columbia Revenue Act of 1975.  The subchapter of the 1975 statute imposing a tax on unincorporated businesses was before the District of Columbia Court of Appeals in Bishop v. District of Columbia, 401 A.2d 955 (D.C.App.1979), affirmed en banc, 411 A.2d 997 (D.C.App.), cert. denied, 446 U.S. 966, 100 S.Ct. 2943, 64 L.Ed.2d 825 (1980). The taxpayers in the Bishop case were a Maryland resident and a Virginia resident, both of whom practiced law in the District of Columbia.  The earlier District of Columbia unincorporated business tax had contained a "professional exemption," [*443] but the Revenue[***8] Act of 1975 repealed the exemption, "thereby allowing the District of Columbia to impose an unincorporated business tax upon unincorporated professionals and personal service businesses." Bishop v. District of Columbia, supra, 401 A.2d at 955. Congress in the District of Columbia Home Rule Act, however, had prohibited the District of Columbia Council from enacting a socalled commuter tax, i.e., an income tax on the personal income of nonresidents working in the District of Columbia.  Thus D.C.Code (1978 Supp.), § 1-147(a)(5), provided that
"the Council shall have no authority to

   * * *
 
(5) impose any tax on the whole or any portion of the personal income, either directly or at the source thereof, of any individual not a resident of the District."
 
The taxpayers in Bishop argued, inter alia, that the unincorporated business tax was an income tax and that, therefore, as applied to them it was invalid under the Home Rule Act. The District of Columbia government, on the other hand, insisted that the unincorporated business tax was a franchise tax, and, as such, was not precluded by the Home Rule Act. As stated by the Bishop court, [***9]401 A.2d at 956, "[t]he question is whether [the unincorporated business tax] imposes a tax on the personal income of nonresidents or whether the tax is levied on something other than income (e.g., the privilege of doing business in the District)."

   The District of Columbia Court of Appeals held in Bishop that the unincorporated business tax was an income tax and not a franchise tax. Initially, the court stated "that the nature and effect of a tax . . . determine if it is an income tax or not." 401 A.2d at 958, citing Dawson v. Kentucky Distilleries, 255 U.S. 288, 292, 41 S.Ct. 272, 274, 65 L.Ed. 638, 645 (1921). The Bishop opinion pointed out that numerous jurisdictions have "styled their tax a franchise tax only to have the courts intercede to reclassify the tax." 401 A.2d at 959, citing Gaulden v. Kirk, 47 So.2d 567, 574-575 (Fla.1950); State ex rel. v. Keller, 140 Fla. 346, 348-349, 191 So. 542, 547-548 (1939); Commissioners of Sinking [*444] Fund v. Howard, 248 S.W.2d 340, 342-343 (Ky.1952),[***10] aff'd, 344 U.S. 624, 73 S.Ct. 465, 97 L.Ed. 617 (1953); City of Louisville v. Sebree, 308 Ky. 420, 428, 214 S.W.2d 248, 253 (1948); Carter Carburetor Corp. v. City of St. Louis, 356 Mo. 646, 658, 203 S.W.2d 438, 440 (1947). The Court of Appeals in Bishop then emphasized that the unincorporated business tax was a tax upon the [**757] net income of the taxpayer instead of upon the gross receipts, and that the purpose and incidents of the tax were the same as those of income taxes generally and not the same as those of franchise taxes, 401 A.2d at 959-960. The court rejected the government's argument "that this tax is a tax on the right to earn income in the District," because it is not levied on "any act of earning income" but only on net income, id. at 960-961. The court went on to point out that the federal Commissioner of Internal Revenue had consistently ruled that the tax was an income tax, that it "is levied upon personal income," and that the individual is personally[***11] liable for the payment of the tax, id. at 961. Concluding that the "tax, by its very terms, is a tax on net income," id. at 960, the court held "that the professional tax here at issue is an invalid exercise of the City Council's legislative authority under the Home Rule Act." Id. at 961.

   In light of the Bishop case, applying this Court's rationale in Gardella v. Comptroller, supra, 213 Md. at 4, 130 A.2d at 753, leads to a decision which is opposite from the result in Gardella.  As previously discussed, the ruling in Gardella was based upon giving "much and respectful weight" to the District of Columbia's "declaration that [the] tax shall be of a particular character." The Gardella Court relied on the declaration, then set forth in the District of Columbia statutory language, that the unincorporated business tax was a "franchise tax" which is "imposed on the privilege of carrying on and engaging in a trade or business in the District of Columbia . . . ."

   If, however, we follow Gardella's approach and rely upon the District [***12]of Columbia's characterization of its present unincorporated business tax, we take that characterization [*445] from the interpretation of the statute by the highest court of the District of Columbia. n2 While the nature of another jurisdiction's statute for purposes of Maryland law is for this Court to decide, nevertheless, to the extent that we rely on the other jurisdiction's characterization of its statute in deciding that issue of Maryland law, we take the statute with whatever interpretative gloss has been placed upon it by the highest court of the other jurisdiction.  This principle was set forth long ago by Chief Justice Marshall for the Supreme Court in Elmendorf v. Taylor, 10 Wheat. 152, 159-160, 6 L.Ed. 289, 292 (1825), dealing with a Kentucky statute:

   "This Court has uniformly professed its disposition, in cases depending on the laws of a particular State, to adopt the construction which the Courts of the State have given to those laws.  This course is founded on the principle, supposed to be universally recognised, that the judicial department of every government, where such department exists, is the appropriate organ[***13] for construing the legislative acts of that government.  Thus, no Court in the universe, which professed to be governed by principle, would, we presume, undertake to say, that the Courts of Great Britain, or of France, or of any other nation, had misunderstood their own statutes, and therefore erect itself into a tribunal which should correct such misunderstanding.  We receive the construction given by the Courts of the nation as the true sense of the law, and feel ourselves no more at liberty to depart from that construction, than to depart from the words of the statute.  On this principle, the construction given by this Court to the constitution and laws of the United States is received by all as the true construction; and on the same principle, the construction given by the Courts of the [*446] several States to the legislative acts of those States, is received as true, unless they come in conflict with the constitution, laws, or treaties of the United States.  If, then, this question has been settled in Kentucky, we must suppose it to be rightly settled."
 
See R.A.V. v. City of St. Paul,    U.S.   ,    , 112 S.Ct. 2538, 2542, 120 [**758]L.Ed.2d 305,     (1992)[***14] ("In construing the St. Paul ordinance, we are bound by the construction given it by the Minnesota court"). This Court has applied the same principle.  See, e.g., White v. King, 244 Md. 348, 356-358, 223 A.2d 763, 768-769 (1966); Smith v. Mercantile Trust Co., 199 Md. 264, 281, 86 A.2d 504, 511-512 (1952); Heyn v. Fidelity Trust Company, 174 Md. 639, 658, 1 A.2d 83, 87 (1938); Zell v. Safe Dep. & Trust Co., 173 Md. 518, 196 A. 298, 301-302 (1938). See also Bishop v. Twiford, 317 Md. 170, 171, 562 A.2d 1238, 1239 (1989); Hauch v. Connor, 295 Md. 120, 121, 453 A.2d 1207, 1208 (1983); Harford Mutual v. Bruchey, 248 Md. 669, 672 n. 1, 238 A.2d 115, 116 n. 1 (1968); Holloway v. Safe Dep. & Tr. Co., 151 Md. 321, 327, 134 A. 497, 498-499, appeal dismissed, 274 U.S. 724, 47 S.Ct. 762, 71 L.Ed. 1329 (1926).[***15] 

n2 In the District of Columbia Court Reform and Criminal Procedure Act of 1970, 84 Stat. 475, D.C.Code Ann. § 11-102 (1981, 1989 Repl. Vol.), Congress provided that "[t]he highest court of the District of Columbia is the District of Columbia Court of Appeals." See Palmore v. United States, 411 U.S. 389, 93 S.Ct. 1670, 36 L.Ed.2d 342 (1973).

   The Comptroller in the present case argues that the Bishop opinion was "in error" and that the language of the D.C.Code shows that the District of Columbia views its unincorporated business tax as a franchise tax (brief, pp. 5-6, 9). But, as emphatically pointed out by the Chief Justice in Elmendorf v. Taylor, supra, 10 Wheat. at 159, 6 L.Ed. at 292, "no Court in the universe, which professed to be governed by principle, would, we presume, undertake to say that the Courts of [another jurisdiction] . . . had misunderstood their own statutes, and therefore erect itself into[***16] a tribunal which should correct such misunderstanding." We shall not undertake to say that the highest court of the District of Columbia misunderstood a District of Columbia statute.

   Recently the Supreme Court of Virginia decided the identical issue presented in the case at bar, King v. Forst, 239 Va. 557, 391 S.E.2d 60 (1990). The Supreme Court of [*447] Virginia held that the District of Columbia unincorporated business tax was an income tax, not a franchise tax, and that a Virginia taxpayer was entitled to a credit against his Virginia income tax for the amount of tax paid to the District of Columbia.  In reaching this decision, the Virginia court specifically relied upon the principle that the interpretation of a particular jurisdiction's statute by the highest court of that jurisdiction should be followed by the courts of another jurisdiction.  The court quoted Chief Justice Marshall's statement in Elmendorf v. Taylor, supra, 10 Wheat. at 159, 6 L.Ed. at 292, to this effect, as well as numerous other authorities.  King v. Forst, supra, 239 Va. at 560-561, 391 S.E.2d at 62. [***17]The Virginia court thus applied the interpretation and characterization of the District of Columbia tax statute by the highest court of the District of Columbia in the Bishop case. n3

n3 The Comptroller, in his brief in the case at bar, argues that the Supreme Court of Virginia's decision in King v. Forst was based upon the Full Faith and Credit Clause of the United States Constitution, Article IV, § 1, cl. 1, and that the Virginia court erroneously invoked the Full Faith and Credit Clause because the meaning and application of the tax credit provision of the Virginia income tax law was an issue of Virginia law to be determined by the Virginia Court.  (Comptroller's brief, p. 9 n. 6, pp. 13-17.) In our view, however, the opinion of the court in King v. Forst was not based on the Full Faith and Credit Clause.  The words "Full Faith and Credit" do not appear in the court's opinion, and the Clause was not cited by the court.  In fact, the United States Constitution was not mentioned.  Moreover, the Supreme Court of Virginia's principal reliance was Chief Justice Marshall's statement in Elmendorf v. Taylor, supra, 10 Wheat. at 159, 6 L.Ed. at 292. The Chief Justice's statement was obviously based on principles of comity and not on the Full Faith and Credit Clause, as he specifically referred to the interpretations of statutes of other nations by the courts of those nations.  In addition, none of the other cases cited by the Supreme Court of Virginia relied on the Full Faith and Credit Clause.  As to the matter of Virginia law, the court in King v. Forst, supra, 239 Va. at 559, 391 S.E.2d at 61, appeared to say that the parties did not dispute the meaning of Virginia law and that the only dispute concerned the District of Columbia's interpretation of its own statute.

   The dissent in King v. Forst did mention the Full Faith and Credit Clause, as well as "notions of comity," as possible bases for the majority's opinion, 239 Va. at 562, 391 S.E.2d at 63. The principle invoked by the dissent was that the meaning and application of the Virginia tax statute was an issue of Virginia law for the Virginia court, and that, as a matter of Virginia law, there should be no credit for the tax paid to the District of Columbia.

   We have no disagreement with the principle invoked by the dissent in King. In the instant case, we agree that whether the District of Columbia tax is a "tax on income" for purposes of Maryland Code (1988) § 10-703 of the Tax-General Article, is a question of Maryland law for this Court.  Nonetheless, to the extent that the issue of Maryland law is to depend upon the District of Columbia's interpretation and characterization of its own tax, we accept the interpretation and characterization from the Bishop case instead of concluding that Bishop mischaracterized the District of Columbia statute.

[***18]

   [*448] [**759]

    In sum, the District of Columbia, by its highest court, interprets and characterizes its unincorporated business tax as an income tax and not a franchise tax. According to the Bishop case, the tax is one imposed on net income earned in the District of Columbia, and its purposes are the same as the purposes of any other income tax. Therefore, applying the approach taken in Gardella v. Comptroller, supra, leads to the conclusion that the District's unincorporated business tax is an income tax and that the taxpayers in the present case should have been granted the credit provided for in Maryland Code (1988), § 10-703 of the Tax-General Article.

   In addition to the District of Columbia characterizing its unincorporated business tax as an income tax, both the nature of that tax and purpose of § 10-703 of the Tax-General Article confirm that the taxpayers in this case are entitled to the credit.

   The Comptroller in his brief conceded, as he must, that the District of Columbia tax is upon the taxpayer's "net income" (brief, p. 6).  Under D.C.Code § 47-1808.5, the tax is imposed upon and payable by the individual earning [***19]the net income within the District of Columbia.  At oral argument before us, the Comptroller also acknowledged that the District of Columbia tax return is filed by and the tax is paid by the individual engaged in the District of Columbia business.  Regardless of labels, these are characteristics of an income tax. Furthermore, residents of the District of Columbia are permitted to exclude from their gross income, [*449] for purposes of their personal income taxes, any net income subject to the unincorporated business tax. D.C.Code § 47-1803.2(a)(2)(D).  This also indicates that the District of Columbia unincorporated business tax is just another form of income tax.

   The obvious purpose of the credit granted by § 10-703 of the Tax-General Article is to avoid double taxation on the same income.  See Reiling v. Lacy, 93 F.Supp. 462, 470-471 (D.Md.1950), appeal dismissed, 341 U.S. 901, 71 S.Ct. 614, 95 L.Ed. 1341 (1951). To disallow the credit under the circumstances of this case cannot be squared with this legislative purpose.

   Section 10-703 of the Tax-General Article does not require, as [***20] a condition for the tax credit, that the other jurisdiction's tax be an income tax in any particular form or be labeled "income tax" or be exclusively an "income tax." n4 It simply requires that there be "tax on income paid to another State . . . ." Under the plain language of the Maryland statute, the taxpayers here have paid a "tax on income" to the District of Columbia.

n4 As pointed out by the District of Columbia Court of Appeals in Bishop, 401 A.2d at 959-960, quite often statutes label a tax as a "franchise tax" or purport to give it certain characteristics of a franchise tax, but courts hold that in substance the tax is also an income tax. In addition to cases previously cited, see, e.g., Md. Nat'l Bank v. St. Dep't of Assess., 57 Md.App. 269, 273, 469 A.2d 907, 909 cert. denied, 299 Md. 656, 474 A.2d 1344 (1984) ("franchise tax when measured on income is one of many 'income taxes'"); People v. Knapp, 230 N.Y. 48, 52-53, 129 N.E. 202, 203, 205 (1920) (per Cardozo, J.: tax labeled a "franchise" tax and imposed "for the privilege of doing business," but computed on net income, "must be held in practical operation to be a tax upon the income"); People v. Graves, 259 App.Div. 30, 18 N.Y.S.2d 418 (1940) (unincorporated business tax is an income tax).

[***21]

   The District of Columbia's interpretation and characterization of its unincorporated business tax, the nature of that tax, and the purpose of the Maryland tax credit provisions, all lead to the conclusion that the District of Columbia unincorporated business tax is a "tax on income paid to [*450] another state" within the meaning of § 10-703(a) of the Tax-General Article.

   JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY REVERSED, AND CASE REMANDED TO THAT COURT WITH DIRECTIONS TO REVERSE THE DECISION OF THE TAX COURT AND REMAND THE CASE TO THE TAX COURT FOR FURTHER PROCEEDINGS [**760] NOT INCONSISTENT WITH THIS OPINION.  APPELLEE TO PAY COSTS. 

WINFIELD M. KELLY, JR., SECRETARY OF STATE et al. v. VOTEKNOW COALITION OF MARYLAND, INC. et al. 
No. 54, September Term, 1992
 
COURT OF APPEALS OF MARYLAND
 
1992 Md. LEXIS 134

 August  19, 1992, Filed

   SUBSEQUENT HISTORY: As Corrected August 20, 1992.

PRIOR HISTORY: [*1]

   Appeal from the Circuit Court for  Anne Arundel  County pursuant to certiorari to Court of Special Appeals. Bruce C. Williams JUDGE

CORE TERMS:  ballot, general election, declaratory judgment, misleading, abortion

COUNSEL: ARGUED BY Ralph S. Tyler of Baltimore, MD (Deputy Attorney General) FOR PETITIONERS.
 
ARGUED BY Joseph A. Schwartz, III of Baltimore, MD, FOR RESPONDENTS.

JUDGES: ARGUED BEFORE Murphy, C. J., Eldridge, Rodowsky, McAuliffe, Chasanow, Karwacki, and Bell, JJ.

OPINIONBY: PER CURIAM; ROBERT C. MURPHY

OPINION: Per Curiam Order

   ORDER

   Ch. 1 of the Acts of 1991, which was Senate Bill 162 of the 1991 legislative session, addressed the subject of abortion and revised statutory provisions relating to abortion. Ch. 1 was petitioned to referendum and is to be submitted to the voters of Maryland at the November 1992 general election, pursuant to Art. XVI of the Constitution of Maryland and Maryland Code (1957, 1990 Repl. Vol.), Art. 33, § 16-6.

   The Circuit Court for Anne Arundel County, by order of August 12, 1992, declared that the ballot title language of Ch. 1, certified by the Secretary of State of Maryland, was misleading because it did not provide "a concise, intelligible and understandable summary of the principal features of SB 162 . . . ." The circuit court's August 12, 1992, order[*2] also enjoined the defendants from using the certified ballot language at the November 1992 general election and directed the defendant Secretary of State of Maryland to certify new ballot language.

   For reasons to be stated in an opinion later to be filed, it is this 19th day of August 1992,

   ORDERED, by the Court of Appeals of Maryland, that the declaratory judgment and injunctive order of the Circuit Court for Anne Arundel County is reversed; and it is further

   ORDERED by the Court of Appeals of Maryland, that the case is remanded to the Circuit Court for Anne Arundel County with directions to enter the following declaratory judgment:
 
"The ballot title of Ch. 1 of the Acts of 1991, certified by the Secretary of State, is not misleading and does not violate either Art. XVI, § 5, of the Constitution of Maryland or Code (1957, 1990 Repl. Vol.), Art. 33, § 16-6.  The defendants are entitled to utilize the ballot title certified by the Secretary of State at the November 1992 general election.
 
And it is further

   ORDERED, by the Court of Appeals of Maryland, that the Circuit Court for Anne Arundel County shall enter an order denying the plaintiffs' request for an injunction.

   Costs[*3] to be paid by the plaintiffs.  Mandate to issue forthwith.

   /s/ Robert C. Murphy

   Chief Judge 

John VOISHAN v. Margaret Voishan PALMA 
No. 99, September Term, 1991
 
COURT OF APPEALS OF MARYLAND
 
327 Md. 318; 609 A.2d 319; 1992 Md. LEXIS 125

 July  22, 1992, Filed

   PRIOR HISTORY: [***1]

   Appeal from the Circuit Court for  Anne Arundel  County pursuant to certiorari to Court of Special Appeals. Raymond G. Thieme, Jr. JUDGE

DISPOSITION: JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT.

CORE TERMS:  combined, guidelines, child support, child support obligation, adjusted, actual income, maximum, presumptive, proportion, household, chancellor, monthly, parental, monthly income, extrapolation, expenditure, support obligation, standard of living, child care, abused, Family Law Article, consistency, judicial discretion, calculated, decrease, daughter, apportioning, fixing, amount of support, high income

COUNSEL: William M. Ferris, argued and on brief (Lynn T. Krause, Krause & Ferris, on brief), Annapolis, for appellant.

   Ralph S. Tyler, Deputy Atty. Gen., argued and on brief (J. Joseph Curran, Jr., Atty. Gen. and Carolyn A. Quattrocki, Asst. Atty. Gen., on brief), Baltimore, as amicus curiae for the State.

   Bruce A. Kaufman, Baltimore, argued and on brief (Thomas C. Ries, Baltimore and Beverly Anne Groner, Bethesda, on brief), as amicus curiae for American Academy of Matrimonial Lawyers.

JUDGES: Murphy, C.J., and Eldridge, Rodowsky, McAuliffe, Chasanow, Karwacki and Robert M. Bell, JJ.  McAuliffe, Judge, concurring.  Eldridge, J., joins in this opinion.

OPINIONBY: CHASANOW

OPINION: [*321] [**320]

   John and Margaret Voishan were divorced on June 26, 1981, by decree of the Circuit Court for Anne Arundel County.  Margaret was awarded custody of their two daughters and John was ordered to pay $250 per week toward the girls' support.  Over four years later, an order dated October 7, 1985 increased [***2]the amount of John's obligation for the support of both children to $1400 per month.  The circuit [**321] court's order also awarded John certain detailed visitation rights.

   On March 8, 1991, the circuit court's intercession was again sought to address John's request to find Margaret in contempt for violating the visitation order as well as Margaret's motion to modify child support. The Honorable Raymond G. Thieme, Jr. presided at that hearing and shortly thereafter entered an order finding that Margaret was not in contempt of court.  That order also increased John's child support obligation for the one daughter who was still a minor from $700 per month to $1550 per month.  John then appealed the modification of child support to the Court of Special Appeals.  Because of the important issues raised on appeal, this Court granted certiorari before consideration by the intermediate appellate court.  While Margaret failed to file an appellee's brief or respond to John's oral arguments, both the Maryland Chapter of the American Academy of Matrimonial Lawyers and the Attorney General of Maryland filed amici curiae briefs and presented oral argument.

   [*322]

   This dispute requires[***3] the Court, for the first time, to address Maryland Code, (1984, 1991 Repl.Vol.) Family Law Article §§ 12-201 et seq. (the "guidelines"). n1 The General Assembly enacted these guidelines in 1989 to comply with federal law and regulations.  See 42 U.S.C. §§ 651-667 (1982 & 1984 Supp. II) and 45 C.F.R. § 302.56 (1989).  The federal mandate required that the guidelines be established and "based on specific descriptive and numeric criteria and result in a computation of the support obligation." Id. When drafting the guidelines, the Maryland Senate Judicial Proceedings Committee had before it Development of Guidelines For Child Support Orders: Advisory Panel Recommendations and Final Report, U.S. Department of Health and Human Services' Office of Child Support Enforcement.  This report explained that the need for the guidelines was threefold: (1) to "remedy a shortfall in the level of awards" that do not reflect the actual costs of raising children, (2) to "improve the consistency, and therefore the equity, of child support awards," and (3) to "improve the efficiency of court processes for adjudicating child support . . . ."

n1 Unless otherwise specified, all statutory references are to Maryland Code, (1984, 1991 Repl.Vol.) Family Law Article.

[***4]

   After considering several different models recommended by the Advisory Panel on Child Support Guidelines, the General Assembly chose to base Maryland's guidelines on the Income Shares Model.  See Senate Judicial Proceedings Committee, Bill Analysis, Senate Bill 49 (1989).  The conceptual underpinning of this model is that a child should receive the same proportion of parental income, and thereby enjoy the standard of living, he or she would have experienced had the child's parents remained together.  Id. see also Robert G. Williams, "Child Support Guidelines: Economic Basis and Analysis of Alternative Approaches," Improving Child Support Practice I-12 to I-13 (A.B.A.1986). Accordingly, the model establishes child support obligations based on estimates of the percentage of income that parents [*323] in an intact household typically spend on their children.  Id. Consistent with this model, the legislature constructed the schedule in § 12-204(e), which sets forth the basic child support obligation for any given number of children based on combined parental income.

   Following the Income Shares Model, Maryland's guidelines first require that the trial judge determine[***5] each parent's monthly "adjusted actual income." Section 12-201(d) states:
"'Adjusted actual income' means actual income minus:
(1) preexisting reasonable child support obligations actually paid;
(2) except as provided in § 12-204(a)(2) of this subtitle, alimony or maintenance obligations actually paid; and
(3) the actual cost of providing health insurance coverage for a child for whom the parents are jointly and severally responsible."
 
[**322] After determining each parent's monthly "adjusted actual income," the judge then adds these two amounts together to arrive at the monthly "combined adjusted actual income" of the parents.  See § 12-201(e).  Having calculated the combined adjusted actual income of the parents, the judge can then determine whether that figure falls within the range of incomes found in the schedule of § 12-204(e).  If the figure is within the schedule, the judge then locates the corresponding "basic child support obligation" for the given number of children.  Where the monthly income falls between two amounts set forth in the schedule, § 12-204(c) dictates that the basic child support obligation is the same as the obligation specified for the next[***6] highest income level.  The judge then divides this basic child support obligation between the parents in proportion to each of their adjusted actual incomes.  § 12-204(a).  The judge must then add together any work-related child care expenses, extraordinary medical expenses, and school and transportation expenses and allocate this total between the parents in proportion to their adjusted actual incomes.  § 12-204(g)-(i).  The [*324] amount of child support computed in this manner n2 is presumed to be correct, although this presumption may be rebutted by evidence that such amount would be unjust and inappropriate in a particular case.  § 12-202(a)(2).  In the instant case, evidence was presented at the March 8, 1991 hearing that John now earns $145,000 per year, while Margaret's annual income is $30,000.  John does not contend that his actual income should be reduced by any expenses identified in § 12-201(d).  Therefore, he computes a "combined adjusted actual income" of $175,000 a year or $14,583 per month in his argument to this Court.  This combined income exceeds $10,000 per month, which is the highest income provided for in § 12-204(e).  The legislature addressed this [***7] situation in § 12-204(d), which says: "If the combined adjusted actual income exceeds the highest level specified in the schedule in subsection (e) of this section, the court may use its discretion in setting the amount of child support."

n2 This is the proper procedure for cases other than shared physical custody cases.  § 12-204(k).  Where the parents share physical custody of the child, as defined by § 12-201(i), the judge shall multiply the basic child support obligation by one and one-half to determine the "adjusted basic child support obligation." See §§ 12-201(j) and 12-204(f).  The judge then divides that amount "between the parents in proportion to their respective adjusted actual incomes." § 12-204(l)(1).  After that, the judge calculates which parent owes payment to the other by applying the provisions of § 12-204(l)(2)-(5).

   While John's primary contention is that Judge Thieme abused his discretion in setting the monthly obligation at $1550, he first argues that the judge could not modify the amount of[***8] child support without making a threshold finding that there was a "material change of circumstance." See § 12-104(a).  At the hearing before Judge Thieme, John's trial counsel never suggested that the parties' circumstances had not materially changed.  In effect, John's trial counsel admitted that a material change in circumstances existed when she told Judge Thieme, "We're not arguing that [Margaret] shouldn't have an increase." Moreover, in more than doubling the amount of child support, [*325] Judge Thieme implicitly found that a change of circumstances had been shown.  See § 12-202(b).

   Having disposed of John's preliminary argument, we now reach his primary contention.  John contends that the $1550 monthly child support award is inconsistent with the spirit and intent behind the Income Shares Model, and concludes that Judge Thieme abused his discretion in awarding that amount.  John maintains that Judge Thieme accurately found that the parties' earnings created a ratio of 83 to 17 for John's and Margaret's respective percentages of their $175,000 combined annual income.  John contends, however, that Judge Thieme erred in the manner in which he applied these percentages[***9] to arrive at the amount of $1550 per month for John's share of the obligation.  Judge Thieme examined expense sheets for each of the parties and concluded that the "reasonable expenses of the child" were $1873 each month.  The judge then calculated 83% of [**323] that figure and rounded John's share of the obligation down to $1550.

   John argues here, as he did below, that a "reasonable approach" would have been for the trial judge to assume that the maximum basic child support obligation listed in the schedule is not only applicable to combined monthly incomes of $10,000, but also applies to those in excess of $10,000 per month. Under the schedule in § 12-204(e), the maximum basic child support obligation of $1040 per month is presumptively correct for parties who have a combined monthly income of $10,000.  John argues that $1040 per month should also provide the presumptively correct basic child support obligation for all combined monthly incomes over $10,000.  While we believe that $1040 could provide the presumptive minimum basic award for those with combined monthly incomes above $10,000, we do not believe that the legislature intended to cap the basic child support[***10] obligation at the upper limit of the schedule.  See, e.g., Hinshelwood v. Hinshelwood, 564 So.2d 141 (Fla.5th DCA 1990); In re Marriage of Van Inwegen, 757 P.2d 1118, 1120 (Colo.App.1988). Had the legislature intended to [*326] make the highest award in the schedule the presumptive basic support obligation in all cases with combined monthly income over $10,000, it would have so stated and would not have granted the trial judge discretion in fixing those awards.  Further, John's proposed approach creates an artificial ceiling and itself defeats the guidelines' policy that the child enjoy a standard of living consonant with that he or she would have experienced had the parents remained married.  We are unpersuaded by John's argument that the legislature meant for all children whose parents earn more than $10,000 per month to have the same standard of living as those whose parents earn $10,000 per month.

   Alternatively, John argues that Judge Thieme should have extrapolated from the guidelines to determine what the support obligation would have been had the schedule extended up to the parties' $14,583 monthly income. [***11] John notes that at the upper levels in the guidelines, the basic child support obligation for one child increases by $5 for every $100 rise in combined adjusted actual income. n3 Extrapolating on that basis, John argues that the basic child support obligation would be $1270 per month ($4583/100 [*327] X $5 plus $1040).  John also acknowledges that under the guidelines, in addition to the basic child support obligation -- whatever that is computed to be, he has an obligation to pay 83% of the additional work-related child care expenses which, in the instant case, are $400 per month.  See § 12-204(g). Taking 83% of the $1270 basic child support obligation plus 83% of the $400 work-related child care expenses, John argues, renders his portion of his daughter's support to be $1386 per month.  Although slightly more generous than his earlier argument, which would leave the judge with no discretion, John's second contention is essentially that this Court should significantly restrict the judicial discretion granted by § 12-204(d) and allow judges very [**324] little latitude in deviating from the extrapolation method.  John asks this Court to hold that Judge Thieme [***12] abused his discretion when he set the award $164 higher than the amount computed by John's strict extrapolation theory.  While we believe that the trial judge should consider the underlying policies of the guidelines and strive toward congruous results, we think that Judge Thieme did not abuse his discretion in fixing the amount of this award.

n3 This is true for combined adjusted actual incomes of $9000 through $10,000 per month:

   Combined                   Combined
   Adjusted                   Adjusted
    Actual         1         Actual         1
    Income       Child       Income       Child
     9000         989         9550         1017
     9050         992         9600         1020
     9100         994         9650         1022
     9150         997         9700         1025
     9200         999         9750         1027
     9250        1002         9800         1030
     9300        1004         9850         1032
     9350        1007         9900         1035
     9400        1009         9950         1037
     9450        1012        10000         1040
     9500          1014

 

   The legislature has clearly enunciated that the policies of the guidelines are those embodied in the Income Shares Model.  John also argues that this model relies on the assumption that the percentage of income expended on children [***13]decreases as parental income increases, and therefore the General Assembly could not have intended to permit an award in this case to exceed 10.4% of combined monthly income, the percentage represented by the schedule's maximum support obligation for one child.  The legislative history, however, indicates that the General Assembly did not intend to impose a maximum percentage of income or any similar restraint on the judge's discretion in setting awards where the parents' combined adjusted actual income exceeds $10,000 per month. In the hearings on the guidelines, the General Assembly was asked repeatedly to circumscribe the discretion granted in § 12-204(d).  The Fair [*328] Family Law Association of Maryland testified that "[t]he proposed statute leaves families with income above $10,000 a month ($120,000 a year) with absolutely no guidelines," and suggested that the schedule be amended to provide that "for family incomes greater than $10,000 per month the basic child support obligation shall be the same percentage of total family income as for income of $10,000 per month [10.4% for one child]." Senate Judicial Proceedings Committee, S.B. 49 Bill File (1989).  Several members[***14] of Family Law Section of the Montgomery County Bar Association testified that "[l]eaving the amount of child support in upper income cases to the discretion of the court will not help us to predict results or settle cases . . . .  We suggest that the table be extended, or that guidelines of some sort be provided." Id. Notwithstanding these pleas, the General Assembly did not change § 12-204(d) or address any specific comment to these concerns.  Rather, it chose to rely on judicial discretion. We agree with the Attorney General's conclusion in its amicus curiae brief that
"[i]mplicit in this judgment is the view that at very high income levels, the percentage of income expended on children may not necessarily continue to decline or even remain constant because of the multitude of different options for income expenditure available to the affluent.  The legislative judgment was that at such high income levels judicial discretion is better suited than a fixed formula to implement the guidelines' underlying principle that a child's standard of living should be altered as little as possible by the dissolution of the family."

   While the legislature specifically rejected the request[***15] for more explicit formulae for incomes above the schedule, the general principles from which the schedule was derived should not be ignored.  See § 12-202(a), which provides that "in any proceeding to establish or modify child support . . . the court shall use the child support guidelines set forth in this subtitle." (emphasis added).  To effectuate the legislative intent to improve the consistency of child support awards, trial judges should bear in mind the guidelines' [*329] underlying principles when deciding matters within their discretion.  Extrapolation from the schedule may act as a "guide," but the judge may also exercise his or her own independent discretion n4 in balancing
 
"the best interests and needs of the child with the parents' financial ability to meet [**325] those needs.  Factors which should be considered when setting child support include the financial circumstances of the parties, their station in life, their age and physical condition, and expenses in educating the children." (Citations omitted).
 
Unkle v. Unkle, 305 Md. 587, 597, 505 A.2d 849, 854 (1986). These principles expressed in the pre-guidelines[***16] Unkle decision are consistent with the underlying concept that the child's needs be met as they would have been absent the parents' divorce.

n4 See Battersby v. Battersby, 218 Conn. 467, 590 A.2d 427, 429-30 (1991) where the Supreme Court of Connecticut held that it would not construe a statute to require strict extrapolation where the legislature included no such provision.

   While we reject John's argument that Judge Thieme abused his discretion because he placed too little reliance on John's suggested mechanical extrapolation from the schedule, we also decline to adopt the position taken by the Maryland Chapter of the American Academy of Matrimonial Lawyers (the AAML) in their amicus curiae brief.  The AAML basically argues that Judge Thieme abused his discretion because he placed too much reliance on a mechanical application of the guidelines. The AAML contends that the economic data from which the figures in the schedule were derived did not include empirical [***17]evidence of the actual household expenditures for children of high income parents.  Because the research and data used in constructing the Income Shares Model did not contemplate these high-range combined parental incomes, the AAML argues, the model provides no assistance in calculating the proper amount of child support. Thus, the AAML concludes, "the trial court [*330] erred when it applied a rigid formula (relative percentage of parents' income) . . . ."

   In support of this conclusion, the AAML points out that the legislature did not include in § 12-204(d) the phrase which appears in § 12-204(a)(1), (g)(1), (h), and (i) -- "shall be divided between the parents in proportion to their adjusted actual incomes." While the argument is not expressly articulated, the AAML seems to suggest that Judge Thieme should not have divided the child support obligation in an 83 to 17 ratio.  We believe that Judge Thieme acted properly in apportioning the obligation based upon the parties' respective percentages of their combined adjusted actual income. Moreover this action was consonant with the principle, expressed in the Income Shares Model as well as preguidelines caselaw, that each parent[***18] "share the responsibility for parental support in accordance with their respective financial resources." Rand v. Rand, 280 Md. 508, 517, 374 A.2d 900, 905 (1977). Finally, Judge Thieme did not look only to the parties' incomes and calculate a particular percentage thereof.  Rather, he determined the reasonable needs of the child and then calculated each parent's proportionate share.

   The Court in Rand declined to "mandate any specific formula by which the chancellor is to calculate the amount of support to be charged against each parent" and left to the chancellor's discretion the manner of assessing financial resources.  Id. The legislature has modified Rand's holding, as § 12-201 now defines the manner in which the trial judge should determine each party's "adjusted actual income." This would seem to be the initial step in any proceeding to establish or modify child support, as the judge must first determine whether the parents' combined adjusted actual income falls within, above, or below the schedule range.  Although § 12-204(d) itself does not contain specific language requiring that the judge divide the child support [***19]obligation "between the parents in proportion to their adjusted actual incomes," this principle certainly underlies the Income Shares Model. Consequently, we believe [*331] that Judge Thieme properly calculated the support obligation and divided it between the parties in proportion to their incomes.

   In Rand and other cases decided before the enactment of the guidelines, the determination or modification of a child support award was left to the sound discretion of the trial court.  Rand, 280 Md. at 517, 374 A.2d at 905. As quoted from Unkle above, courts were to balance the best interests and needs of the child with the parents' ability to satisfy those needs, and to make awards based on the circumstances of each individual case.  Unkle, 305 Md. at 597, 505 A.2d at 854. Referring to alimony or child [**326] support in preguidelines cases, this Court had repeatedly said that
 
"'"[i]n making such an award the court can only use judicial discretion. Of course, there is no special statute or rule governing this discretion.  It must be exercised to the necessary end of awarding[***20] justice and based upon reason and law."'" (Emphasis added).
 
Bowis v. Bowis, 259 Md. 41, 44, 267 A.2d 84, 86 (1970) (quoting Burton v. Burton , 253 Md. 233, 237, 252 A.2d 472, 473 (1969), in turn quoting Waters v. Waters, 191 Md. 436, 440-41, 62 A.2d 250, 253 (1948)). We do not believe that the legislature intended that the schedule in § 12-204(e) "govern" a judge's discretion by dictating a cap or mechanical extrapolation. However, we also do not believe that the legislature intended that the principles from which the schedule was derived should be ignored when a judge exercises discretion under § 12-204(d).

   While awards made under § 12-204(d) will be disturbed only if there is a clear abuse of discretion, a reviewing court must also be mindful that the federal call for child support guidelines was motivated in part by the need to improve the consistency of awards.  Thus, the trial judge has somewhat more latitude than that argued by John, but not the unguided discretion of pre-guidelines cases as advocated by the AAML.  Rather, we agree with[***21] the Attorney General's position that the guidelines do establish a rebuttable presumption that the maximum support award under [*332] the schedule is the minimum which should be awarded in cases above the schedule. n5 Beyond this the trial judge should examine the needs of the child in light of the parents' resources and determine the amount of support necessary to ensure that the child's standard of living does not suffer because of the parents' separation. Further, the judge should give some consideration to the Income Shares method of apportioning the child support obligation. Consequently, we conclude that Judge Thieme properly exercised his discretion in receiving evidence of the parents' financial circumstances, considering the needs of the child, and then apportioning the "reasonable expenses of the child."

 n5 The Maryland guidelines were "patterned after the Colorado child support guidelines." Senate Judicial Proceedings Committee, Floor Report, Senate Bill 49 (1989).  While it appears the Colorado Supreme Court has not yet spoken on the issue, that state's intermediate appellate court has repeatedly held that in cases above the schedule "there is a rebuttable presumption that the basic child support obligation at the uppermost level of the guidelines is the minimum presumptive amount of support." In re Marriage of LeBlanc, 800 P.2d 1384, 1388 (Colo.App.1990) (emphasis in original).  Further, that court has held that it is an abuse of discretion for a trial judge to mechanically extrapolate from the guidelines without making a determination regarding the needs of the child.  In re Marriage of Van Inwegen, 757 P.2d 1118, 1121 (Colo.App.1988).

[***22]

   Finally John contends that, even if Judge Thieme did not abuse his discretion in the manner in which he set the award, the evidence upon which he based the award was legally insufficient.  This Court addressed a similar argument in Rothschild v. Strauss, 257 Md. 396, 263 A.2d 511 (1970). The father there argued "that 'the Chancellor did not base his award on any substantial evidence in the record,' the mother having supplied, so the father says, 'boxcar figures' as to the monthly needs." Id. at 398, 263 A.2d at 512. The Court said that the short answer to the father's contention was found in Maryland Rule 886a.  That Rule was subsequently readopted, without substantive change, as Md.Rule 8-131(c), which provides that an appellate court "will not set aside the judgment of the trial court on the evidence unless clearly erroneous, and will give due [*333]regard to the opportunity of the trial court to judge the credibility of the witnesses." The Court in Rothschild then held:
"the chancellor did have before him evidence from the mother of costs for support of the child.  It is obvious[***23] that the chancellor gave very careful consideration to the mother's testimony, the original agreement, the changes in the cost of living, changes by virtue of change in age insofar as the young lady is concerned and her actual needs.  It is significant in this regard that although the [**327] chancellor increased the support payments, he did not accept the support figure requested by the mother.  We cannot say that the chancellor's judgment in this case was 'clearly erroneous'."
 
Id.

   The case at hand is markedly similar to that in Rothschild.  Judge Thieme received testimony from Margaret about her daughter's expenses, accompanied by a list enumerating each.  This list identified food, shelter, and clothing as the primary expenses, but also itemized expenses for transportation, extracurricular activities, outside sports teams, and religious instruction. n6 Rather than adopt these numbers, Judge Thieme recessed to review the evidence and said, "I'm not going to shoot from the hip without looking at the expenses and making my own determination as to what this -- what this child reasonably needs for monthly [*334] expenses." Judge Thieme gave due consideration to the [***24]evidence before him, and we will not set aside his judgment.

n6 Discussing the economic studies of spending in intact households, Robert G. Williams noted that because most expenditures made on behalf of children are intertwined with household expenses (i.e., food, shelter, and transportation), many costs of the children become hidden in the larger pool of household expenses.  Consequently, Williams concludes "the full children's share of expenditures in those categories is generally not recognized, with the result that even parents may underestimate the true costs of bringing up their own children." Robert G. Williams, "Guidelines for Child Support Orders," Family Law Quarterly, Volume XXI, No. 3, Fall 1987.  Margaret, who shares her household only with the child whose support is sought, attributed a quarter of her household expenses to the child.  The evidence certainly could justify compensating Margaret for her estimate of household expenses attributable to the child.

   JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL[***25] COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT.

CONCURBY: McAULIFFE

CONCUR: McAULIFFE, Judge, concurring.

   I concur in the result.  I do not believe that the legislature intended to authorize trial judges to ignore basic policy decisions made by the legislature with respect to the equitable establishment of child support, or to authorize virtually unlimited discretion as soon as the combined adjusted actual income of the parties exceeds $10,000 per month.

   As the Court's opinion points out, the legislature adopted an Income Shares Model when it enacted Senate Bill 49 in 1989.  The Bill Analysis prepared for the Senate Judicial Proceedings Committee explains the basic concepts of this model in the following language:
The Income Shares model is based on the premise that the child should receive the same proportion of parental income he or she would receive if the parents lived together.  Under this model, a basic child support obligation is computed based on the combined income of the parents (replicating total income in an intact household).  This basic obligation is then prorated in proportion to each parent's adjusted gross income.  Prorated shares of child care costs and extraordinary medical expenses[***26] are added to each parent's basic obligation.
The economic assumptions underlying this model are based on recent studies estimating expenditures on children as a proportion of household consumption.

   The chancellor followed one of these policies when he allocated the share of each parent in accordance with their share of the total income.  He apparently ignored, however, the "recent studies estimating expenditures on children as a proportion of household consumption" which underlay the legislature's approved model, and instead reverted to an [*335] earlier practice of attempting to determine the needs of a child based upon the custodial parent's estimated allocation to the child of a portion of fixed expenses of the family.  As the Court of Special Appeals cogently observed in Tannehill v. Tannehill, 88 Md.App. 4, 11, 591 A.2d 888 (1991), one of the principal purposes for adopting the guidelines was "to improve the consistency and equity of child support awards." See also Richardson v. Richardson, 12 Va.App. 18, 401 [**328] S.E.2d 894, 895 (1991) (child support guidelines were intended[***27] to "decrease the disparity in the amount of awards, which, without the guidelines, range from unreasonably low to unrealistically high").

   I believe the Income Shares Model adopted by the legislature provides informed guidance for the fixing of child support obligations even when the combined adjusted actual income exceeds $10,000 per month, while still granting the discretion referred to in § 12-204(d) of the Family Law Article, Maryland Code (1991 Repl.Vol.).  The schedule of basic child support obligations, based upon data that the legislature found acceptable, shows that above the poverty level the percentage of parental income dedicated to childrearing expenses decreases as the parental income increases.  I do not agree with the father that the curve which can be plotted from the schedule must be projected to establish child support obligations beyond the limits of the schedule; that argument is contrary to the express intention of the legislature to grant a measure of discretion to the court when incomes exceed the highest income listed on the schedule.  But that does not mean that the entire concept of the schedule, or its underlying data, should be jettisoned as soon as the[***28] upper limit of the schedule is passed.  The legislative objective may be carried forward by using the schedule to establish presumptive maximum and minimum amounts for basic child support.

   Specifically, I suggest that the amount calculated in accordance with the schedule for child support when the combined income equals $10,000 per month should serve as the presumptive floor for awards based upon combined [*336] income in excess of that amount.  It makes no sense to hold the parents who would be required to provide $1,040 per month for the support of a child when their combined monthly income is $10,000 would be permitted to pay less if their income were $10,050 per month.  Similarly, I believe the presumptive maximum base payment for one child should be 10.4 percent of the combined income of the parents, which is the percentage that the maximum scheduled payment bears to the maximum combined income ($1,040 to $100,000).

   As I have noted above, the studies upon which the schedule is based demonstrate that the percentage of combined income of families living together that is dedicated to support of a child decreases as the income increases. Thus, it would hardly be inequitable[***29] to the child to establish as a maximum the percentage fixed by the schedule for a lesser amount of combined income.  It should be kept in mind, however, that it is the percentage of income that remains as a constant presumptive ceiling -- the amount of dollars to be paid for the support of the child obviously increases as the combined income increases.

   I certainly would not fault a chancellor for utilizing a projection of the schedule for combined incomes above $10,000 a month as a presumptive child support payment where other factors did not suggest a different amount, but I agree that such a projection is not required.  The legislature expressly reserved a considerable range of discretion to the chancellor when the combined monthly income of the parties exceeds $10,000, and thus there is no authority for requiring a mathematical projection.  It was, however, the intent of the legislature that this discretion be exercised in a manner consistent with the principles approved by the passage of subtitle 2 of Chapter 12 of the Family Law Article (Child Support Guidelines).  Accordingly, the presumptive maximum and minimum support payments should be dictated by those policies.

   Applying[***30] these principles to this case, the presumptive minimum base payment would be $1,040 (the payment established [*337] by the schedule for $10,000), and the presumptive maximum would be $1,517 (10.4 percent of combined income of $14,583).  Adding $400 of child care expenses to the presumptive maximum figure produces a total of $1,917, and multiplying that amount by 83 percent to arrive at the contribution to be made by the father produces a total presumptive maximum payment of $1,591.  The monthly payment ordered in this case was $1,550.  Although calculated [**329] by a method which I believe is at variance with the approach intended by the legislature, the payment ordered here falls within the range of discretion which I believe the legislature intended to grant to trial judges, and I would therefore affirm the decision in this case. 

BOARD OF SUPERVISORS OF ELECTIONS OF ANNE ARUNDEL COUNTY etal. v. Rayburn H. SMALLWOOD et al.; BALTIMORE COUNTY CITIZENS FOR REPRESENTATIVEGOVERNMENT, et al. v. BALTIMORE COUNTY, Maryland, et al. 
Nos. 71, 72, September Term, 1990
 
COURT OF APPEALS OF MARYLAND
 
327 Md. 220; 608 A.2d 1222; 1992 Md. LEXIS 124

 July  17, 1992, Filed

   SUBSEQUENT HISTORY: [***1] As Corrected July 22, 1992.  Second Correction August 17, 1992. Reported at 327 Md. 220, at 228.

PRIOR HISTORY: Appeal from the Circuit Court for  Anne Arundel  County pursuant to certiorari to Court of Special Appeals. Bruce C. Williams, JUDGE for No. 71.
 
Appeal from the Circuit Court for Baltimore County pursuant to certiorari to Court of Special Appeals. John F. Fader, II, JUDGE, for No. 72.

CORE TERMS:  charter, invalid, voters, tax year, property tax, county council, cap, tax rate, proposed amendment, ballot, charter amendment, general election, constant, referendum, property tax revenues, legislative body, escape clause, general law, election, roll, electorate, tax limitation, severed, conflicted, budget, governing body, county executive, severable, municipal, fiscal

COUNSEL: John R. Greiber, Jr. (Messinger & Greiber, both on brief), Annapolis, for petitioners Bd. of Supervisors, Richard W. Drury (Thomas G. Bodie, Thomas J. Dolina, Power & Mosner, P.A., all on brief), Towson, for petitioners Baltimore County Citizens.

   Diana G. Motz, and Frank, Bernstein, Conaway & Goldman, Baltimore, amicus curiae, for Talbot County Taxpayers' Ass'n and the Tax Reform Initiative by Marylanders.

   Roger D. Redden (Kurt J. Fischer, both on brief), Baltimore, David A. Plymyer, Deputy County Atty. (Stephen R. Beard, County Atty., both on brief), Annapolis, for respondents Smallwood, Roger D. Redden (Kurt J. Fischer, both on brief), Baltimore, Arnold Jablon, Co. Atty. (Stanley J. Schapiro, Deputy Co. Atty., Michael J. McMahon, Asst. Co. Atty., all on brief), Towson, for respondents[***2] Baltimore County.

JUDGES: Murphy, C.J., Eldridge, Cole, * Rodowsky, McAuliffe and Chasanow, JJ., and Charles E. Orth, Jr., Judge of the Court of Appeals (retired), Specially Assigned.  Murphy, Chief Judge, dissenting.  Chasanow, Judge, concurring in part and dissenting in part.

 * Cole, J., now retired, participated in the hearing, conference and decision of this case while an active member of this Court; after being recalled pursuant to the Constitution, Article IV, Section 3A, he also participated in the adoption of this opinion.

OPINIONBY: ELDRIDGE

OPINION: [*228]

   OPINION

   ELDRIDGE, Judge.

   These cases involve the validity of charter amendments proposed, pursuant to the Maryland Constitution, Art. XI-A, § 5, n1 by petitions of the voters of Baltimore and Anne Arundel Counties respectively.  This opinion sets forth the reasons underlying the Court's order requiring each county's Board of Election Supervisors to place proposed "Property Tax Limitation" charter amendments on the ballots for the 1990 general election. Also addressed is this Court's order prohibiting the Anne Arundel County Board of Supervisors of Elections from placing a "Ballot Initiative Amendment" on the ballot.

n1 Section 5 of Art. XI-A provides in relevant part as follows:
"Section 5.  Amendments to charters.

   Amendments to any charter adopted by the City of Baltimore or by any County of this State under the provisions of this Article may be proposed by a resolution of the Mayor of Baltimore and the City Council of the City of Baltimore, or the Council of the County, or by a petition signed by not less than 20% of the registered voters of the City or County, provided, however, that in any case 10,000 signatures shall be sufficient to complete a petition.  * * *."

[***3]

   I.

   As this opinion encompasses two distinct appeals, the facts and procedural history of each case will be addressed separately.

   A.

   On July 5, 1990, the Baltimore County Citizens for Representative Government (BCCRG) submitted a petition to place a Property Tax Limitation charter amendment on the [*229] 1990 general election ballot. n2 The Board of Election Supervisors reviewed the petition and found that it contained the requisite number of signatures. n3 The proposed charter amendment would have altered § 710 of the Baltimore County charter. Section 710 of the charter provides that when the county budget has been finally adopted, the county council shall levy and raise the amount of taxes required by the budget. The proposed amendment would have required the property tax revenues for the tax year 1991-1992 to be limited to the amount of property tax revenues realized for the tax year 1989-1990; it would not have allowed the tax revenues to be raised by more than 2% per year, beginning with tax year 1992-1993.  An "escape clause" would have permitted the county council to increase property taxes by more than the 2% maximum when at least two-thirds of the qualified registered [***4]voters in the county approved the increase by referendum. The proposed amendment to § 710 of the Baltimore County charter also [*230] contained a severability provision in the event that any portion of the proposed amendment were found to be invalid.

n2 The petition proposed that the following language be added to § 710 of the Baltimore County Charter:
"(d) Property Tax. Notwithstanding any other provision of this Charter, commencing on July 1, 1991, and for the tax year 1991-1992, the County property tax may not exceed the property tax realized by the County for the tax year 1989-1990, except as provided in subparagraph (1) and (2) herein:

   (1) For the tax year 1992-1993, and for succeeding years the County property tax may be increased, but by no more than 2 percent per year.

   (2) In any tax year subsequent to tax year 1991-1992, the county may increase the property taxes by no more than 2 percent provided such increase is put to referendum by the County and is approved by not less than two thirds of the qualified registered voters in the County.

   (3) The limitation provided for in subparagraph (d) above shall not apply to property taxes or special assessments to pay the interest and redemption charges on any indebtedness approved by the voters prior to the time this section becomes effective.

   (4) If any paragraph, part, clause or phrase hereof is for any reason held to be invalid or unconstitutional, the remaining portions of the law shall not be affected but will remain in full force and effect."
[***5] 

n3 The requisite number of signatures required 20% of the registered voters of the County, or 10,000, whichever is less.  See note 1, supra.

   On August 16, 1990, Baltimore County and nine individual taxpayers filed a complaint in the Circuit Court for Baltimore County.  The plaintiffs sought a declaration that the proposed amendment to the [**1227] charter of Baltimore County was void because it violated Art. XI-A of the Maryland Constitution and/or because it conflicted with Maryland Code (1986), § 6-302(a) and § 6-308 of the Tax-Property Article.  The plaintiffs also requested an injunction prohibiting the placement of the amendment on the general election ballot.

   On August 31, 1990, the circuit court declared that the proposed amendment violated both the Maryland Constitution and the Tax-Property Article of the Maryland Code and therefore could not be on the ballot. Nevertheless, the court directed the Board of Supervisors of Elections of Baltimore County not to remove the proposed tax limitation amendment from the ballot until the earlier of October 5, 1990, n4 or a decision as to the[***6] validity of the amendment by this Court.  On the same day, the BCCRG noted an appeal to the Court of Special Appeals.  Prior to any proceedings in the Court of Special Appeals, Baltimore County filed in this Court a petition for writ of certiorari which we granted on September 6, 1990.

n4 October 5, 1990, was the latest date by which the Board of Supervisors of Elections must have been informed of all items which would be placed on the November 6, 1990, election ballot.

   B.

   The facts and procedural history surrounding the Anne Arundel County case are similar.  On July 20, 1990, the Anne Arundel Taxpayers for Responsive Government (AATRG) submitted petitions to place a Property Tax Limitation [*231] charter amendment n5 and a Ballot Initiative charter amendment on the 1990 general election ballot.

n5 The petition proposed that the following language be added to § 710 of the Anne Arundel County Charter:
"[d] Property Tax

   "(1) Notwithstanding any other provision of this article, commencing on 1 July 1991 (tax year 1991-1992), the County Council may not establish property tax rates which would provide more property tax revenues than were raised during the 1988-1989 tax year, except as provided in subparagraphs [a] and [b] below:

   "[a] The Constant Yield Tax Rate, as currently specified by the Tax-Property Article of the Annotated Code of Maryland, shall continue as the method of assurance that revenue derived from the property tax remains at a constant level from one year to the next.  The provisions of the Tax-Property Article of the Annotated Code of Maryland which permit local taxing authorities to increase property tax rates above the Constant Yield Tax Rate shall be used by the Anne Arundel County Council in the following manner: Commencing 1 July 1992, and applicable to subsequent tax years, the Council may set an annual tax rate which exceeds the Constant Yield Tax Rate by a value which will permit property tax revenues to increase by (1) a percentage corresponding to the immediately previous January Consumer Price Index, U.S. City Average, percentage of change from the preceding January, as computed by the Department of Labor (or other widely accepted index that measures from time to time the rate of inflation), or (2) by 4.5 percent, whichever is the lesser amount.

   "[b] In any tax year subsequent to 1992, the County Council may increase property tax revenues for that year by an amount greater than that stated in paragraph (d) herein by referring a specific revenue increase to a referendum of the qualified voters of the County."

[***7]

   Section 710 of the Anne Arundel County charter requires the County Council to maintain a balanced budget. The section also exempts from executive veto any ordinance that levies taxes required to balance the budget. The proposed amendment to § 710 of the Anne Arundel County charter would have limited property tax revenues for the tax year 1991-1992 to the amount of property revenues raised during the 1988-1989 tax year. The proposal would have placed the tax cap provision of the amendment in the context of the constant yield tax rate provided for in the Tax-Property Article of the Annotated Code of Maryland. Specifically, beginning with tax year 1992-1993, the Anne [*232] Arundel County Council could not have allowed property tax revenues to exceed the constant yield rate by a value greater than the increase in the Consumer Price Index from the preceding January, or by 4.5%, whichever would be less.  The proposed Anne Arundel County amendment also contained an "escape clause" that would have allowed the county council to exceed the cap upon approval by [**1228]the qualified voters of the county in a referendum.

   The second Anne Arundel County proposed charter amendment would[***8] have amended § 308 of the county charter. Section 308 reserves to the voters of Anne Arundel County the right of referendum regarding legislation passed by the county council. The proposed amendment would have given the voters of Anne Arundel County the power to initiate legislation which would not be subject to the veto power of the County Executive, and which could only be amended or repealed by an affirmative vote of all seven members of the county council. n6

n6 Initiative refers to the process by which the electorate petitions for and votes on a proposed law.  Referendum is the process by which legislation passed by the governing body is submitted to the electorate for approval or disapproval.  O.M. Reynolds, Jr., Handbook of Local Government Law, §§ 203, 204 (1982).  See also Cheeks v. Cedlair Corp., 287 Md. 595, 613 n. 9, 415 A.2d 255, 264 n. 9 (1980) (defining initiative); Ritchmount Partnership v. Board, 283 Md. 48, 60, 388 A.2d 523, 531 (1978) (defining referendum).  See generally Bd. of Election Laws v. Talbot County, 316 Md. 332, 347-351, 558 A.2d 724, 731-733 (1989).

[***9]

   On August 6, 1990, four individual taxpayers and Anne Arundel County filed in the Circuit Court for Anne Arundel County a complaint and motion for summary judgment.  The plaintiffs sought injunctive and declaratory relief, alleging that both of the proposed amendments were invalid because they violated the Maryland Constitution.  The plaintiffs further contended that the Property Tax Limitation amendment was in conflict with §§ 6-302(a) and 6-308 of the Tax-Property Article of the Maryland Code.

   On August 30, 1990, the Circuit Court for Anne Arundel County declared that both proposed amendments were unconstitutional.  [*233] The court entered an injunction prohibiting the Board of Supervisors of Elections of Anne Arundel County from placing either proposed amendment on the 1990 general election ballot. The same day, AATRG filed a notice of appeal to the Court of Special Appeals.  Before any proceedings in the Court of Special Appeals, Anne Arundel County and the individual taxpayers filed a petition for a writ of certiorari which was granted by this Court on September 6, 1990.

   C.

   The oral arguments for the Baltimore County and Anne Arundel County appeals were advanced to September[***10] 19, 1990.  On appeal, the parties addressed the standing of the plaintiffs, the constitutionality of the charter amendments, the potential conflict of the charter amendments with public general law, and the possibility of severing any portions found to be invalid. n7

n7 The defendants in both cases contested the standing of Baltimore County and Anne Arundel County to challenge the validity of the proposed charter amendments.  As previously stated, however, individual taxpayers in each county also contested the proposed amendments' validity.  Individual taxpayers have standing to sue for an injunction against submitting a proposal to the electorate; otherwise, they would be "put to wrongful expense for the publication of the referendum and the printing of it on the ballots of the next general election." Sun Cab Company v. Cloud, 162 Md. 419, 422, 159 A. 922, 923 (1932). See also Bd. of Election Laws v. Talbot County, supra, 316 Md. at 341-342, 558 A.2d at 728-729; State v. Burning Tree Club, Inc., 315 Md. 254, 292, 554 A.2d 366, 385, cert. denied, 493 U.S. 816, 110 S.Ct. 66, 107 L.Ed.2d 33 (1989); Inlet Associates v. Assateague House, 313 Md. 413, 441, 545 A.2d 1296, 1310 (1988); Citizens P. & H. Ass'n v. County Exec., 273 Md. 333, 338-343, 329 A.2d 681, 684-687 (1974).

   It is a long established rule that "[w]here there exists a party having standing to bring an action or take an appeal, we shall not ordinarily inquire as to whether another party on the same side also has standing." Board v. Haberlin, 320 Md. 399, 404, 578 A.2d 215, 217 (1990). See also Sugarloaf v. Waste Disposal, 323 Md. 641, 650 n. 6, 594 A.2d 1115, 1119 n. 6 (1991); State v. Burning Tree Club, Inc., supra, 315 Md. at 291, 554 A.2d at 385; Montgomery County v. Board of Elections, 311 Md. 512, 516 n. 3, 536 A.2d 641, 643 n. 3 (1988); State's Atty v. City of Balto., 274 Md. 597, 602, 337 A.2d 92, 96 (1975), and cases there cited.

[***11]
 
   [*234]

   At the conclusion of oral arguments, we affirmed the portion of the judgment of the Circuit Court for Anne Arundel County which prohibited the Board of Election Supervisors of Anne Arundel County from placing the proposed Ballot Initiative [**1229] amendment on the ballot. Otherwise, we reversed the judgments of the circuit courts and required the Boards of Supervisors of Elections of Baltimore County and Anne Arundel County to place the respective proposed Property Tax Limitation charter amendments, with certain invalid portions severed, on the 1990 general election ballot. n8

n8 We note that both of the proposed Property Tax Limitation charter amendments were rejected by the voters of Anne Arundel and Baltimore Counties at the November 1990 general election.

   II.

   The proposed Anne Arundel County Ballot Initiative charter amendment attempted to reserve to the voters of that county "the power to propose public local laws in the same manner as provided for the County Council . . . and to adopt or reject [***12] the same, at the [next county-wide election]." The effect of the proposed amendment would have been to allow voter-initiated legislation in Anne Arundel County.  Anne Arundel County and the individual plaintiffs argued that the amendment violated Art. XI-A, § 3, of the Maryland Constitution, and thus was invalid. n9

n9 Art. XI-A, § 3, of the Maryland Constitution provides in relevant part as follows:
"Section 3.  Legislative bodies; chief executive officers; enactment, publication and interpretation of local laws.

   "Every charter so formed shall provide for an elective legislative body in which shall be vested the law-making power of said City or County.  Such legislative body in the City of Baltimore shall be known as the City Council of the City of Baltimore, and in any county shall be known as the County Council of the County.  The chief executive officer, if any such charter shall provide for the election of such executive officer, or the presiding officer of said legislative body, if such charter shall not provide for the election of a chief executive officer, shall be known in the City of Baltimore as Mayor of Baltimore, and in any County as the President or Chairman of the County Council of the County, and all references in the Constitution and laws of this State to the Mayor of Baltimore and City Council of the City of Baltimore or to the County Commissioners of the Counties, shall be construed to refer to the Mayor of Baltimore and City Council of the City of Baltimore and to the President or Chairman and County Council herein provided for whenever such construction would be reasonable.  From and after the adoption of a charter by the City of Baltimore, or any County of this State, as hereinbefore provided, the Mayor of Baltimore and City Council of the City of Baltimore or the County Council of said County, subject to the Constitution and Public General Laws of this State, shall have full power to enact local laws of said City or County including the power to repeal or amend local laws of said City or County enacted by the General Assembly, upon all matters covered by the express powers granted as above provided; provided that nothing herein contained shall be construed to authorize or empower the County Council of any County in this State to enact laws or regulations for any incorporated town, village, or municipality in said County, on any matter covered by the powers granted to said town, village, or municipality by the Act incorporating it, or any subsequent Act or Acts amendatory thereto.  * * *"

[***13]

   [*235]

   In Bd. of Election Laws v. Talbot County, 316 Md. 332, 348-350, 558 A.2d 724, 732-733 (1989), this Court flatly held that § 216 of the Talbot County charter, authorizing voter-initiated legislation, was "manifestly repugnant" to Art. XI-A, § 3, of the Maryland Constitution.  Quoting from the opinion in Cheeks v. Cedlair Corp., 287 Md. 595, 613, 415 A.2d 255, 264 (1980), we stated (316 Md. at 349, 558 A.2d at 732):
"'The powers of referendum and initiative, though each may affect the form or structure of local government, are otherwise distinctly different.  Under the referendum power, the elective legislative body, consistent with § 3, continues to be the primary legislative organ, for it has formulated and approved the legislative enactment referred to the people.  The exercise of the legislative initiative power, however, completely circumvents the legislative body, thereby totally undermining its status as the primary legislative organ.' Thus, we held that 'the power to initiate legislation, unlike the referendum power, cannot be reconciled with § [***14] 3.'"
 
[*236] Talbot County is precisely on point, and is determinative of the ballot initiative issue here.  See also Griffith v. Wakefield, 298 Md. 381, 470 A.2d 345 (1984); Ritchmount Partnership v. Board, 283 Md. 48, 388 A.2d 523 (1978); Rowe v. Chesapeake & [**1230] Potomac Tel. Co., 56 Md.App. 23, 466 A.2d 538 (1983).

   We reiterate that the voters of a charter county cannot reserve to themselves the power to initiate legislation because such initiative conflicts with the terms of Art. XI-A, § 3, of the Maryland Constitution.  Therefore, the proposed Ballot Initiative amendment was unconstitutional, and the injunction prohibiting the Board of Election Supervisors of Anne Arundel County from placing it on the general election ballot was proper.

   III.

   The proposed Property Tax Limitation charter amendments in Baltimore and Anne Arundel Counties would have placed a percentage cap on the amount of local property tax revenues to be raised each year.  The plaintiffs in both cases attacked the proposed Property Tax Limitation amendments[***15] on two grounds.  First, they asserted that a limitation on the taxing power of the county councils is not proper charter material, and thus is repugnant to Art. XI-A of the Maryland Constitution.  Relying on Griffith v. Wakefield, supra, 298 Md. at 385, 388, 470 A.2d at 348-349, and Cheeks v. Cedlair Corp., supra, 287 Md. at 606-607, 415 A.2d at 261, the plaintiffs argued that a charter is intended to establish "the form and structure of government" and that the proposed amendments would not have changed "the form and structure" of the counties' governments.  Second, the plaintiffs claimed that the proposed tax limitation amendments conflicted with public general law, namely §§ 6-302(a) and 6-308 of the Tax-Property Article of the Maryland Code.

   A.

   The tax cap portion of the proposed tax limitation amendments constituted proper charter material.  We have [*237] repeatedly explained that a county charter is equivalent to a constitution.  Bd. of Elections Laws v. Talbot County, supra, 316 Md. at 341, 558 A.2d at 728; County Exec., Prince Geo's Co. v. Doe, 291 Md. 676, 680, 436 A.2d 459, 461 (1981);[***16] Cheeks v. Cedlair Corp., supra, 287 Md. at 606, 415 A.2d at 261; Ritchmount Partnership v. Board, supra, 283 Md. at 58, 388 A.2d at 530; Harford County v. Schultz, 280 Md. 77, 85, 371 A.2d 428, 432 (1977); Anne Arundel County v. Moushabek, 269 Md. 419, 422, 306 A.2d 517, 519 (1973). The basic function of a constitution or a charter is to distribute power among the various agencies of government, and between the government and the people who have delegated that power to their government.  As Chief Judge Murphy stated for the Court in Cheeks v. Cedlair Corp., supra, 287 Md. at 607, 415 A.2d at 261:
"A charter . . . is the organic, the fundamental law, establishing basic principles governing relationships between the government and the people."
 
The proposed Property Tax Limitation amendments directly involved the relationship between the people and the government by limiting the power of the government to tax.

   Limitations imposed by the people on their[***17] government are fundamental elements of a constitution.  See, e.g., Marbury v. Madison, 1 Cranch 137, 176-177, 2 L.Ed. 60, 73 (1803); The Federalist, Nos. 78, 81, 84 (1788) (Alexander Hamilton). n10 [**1231] The Maryland Declaration of Rights and the [*238] Bill of Rights to the United States Constitution largely represent limitations on governmental power.  In fact, the desire of the people to limit the government's ability to tax was a major cause of the American Revolution.  "There was no colony of English America, in which the claim of the inhabitants, to exemption from all taxation not sanctioned by their assent, was more familiar than in Maryland." n11 The Constitution of the United States, n12 the Constitution of Maryland, n13 and the charters of Anne Arundel and Baltimore counties, n14 are replete with provisions limiting the power of governments to raise and appropriate revenue.  Thus, a limitation on the power of a legislative body to raise revenue is at the heart of the form and structure of our government and thus is proper charter material.  See Bd. of Election Laws v. Talbot County, supra, 316 Md. at 347-348, 558 A.2d at 731-732;[***18] Griffith v. Wakefield, supra, 298 Md. at 389, 470 A.2d at 350; Cheeks v. Cedlair Corp., supra, 287 Md. at 606-608, 415 A.2d at 261-262; Ritchmount Partnership v. Board, supra, 283 Md. at 58, 388 A.2d at 530.

 n10 Thus, even those who are particularly known for having favored broad constructions of the federal constitution have recognized that an essential -- perhaps the essential -- function of a constitution is to limit government power.

   In Marbury v. Madison, supra, 1 Cranch at 176, 2 L.Ed. at 73, Chief Justice John Marshall, after pointing out that the government of the United States is one with "certain limits not to be transcended," went on to say: "that those limits may not be mistaken, or forgotten, the constitution is written." Later the Chief Justice emphatically stated that if constitutional limitations on legislative power are not enforceable, "then written constitutions are absurd attempts, on the part of the people, to limit a power, in its own nature illimitable." 1 Cranch at 177, 2 L.Ed. at 73.

   In No. 84 of The Federalist, Alexander Hamilton argued extensively that the federal constitution, by only delegating certain powers to the federal government, represented essentially a limitation upon governmental powers.  He stated "that the constitution is itself, in every rational sense, and to every useful purpose, a bill of rights." (Emphasis in original).

[***19] 

n11 J. McMahon, Historical View of the Government of Maryland, 326 (1831).

n12 Article I, § 7, cl. 1; Article I, § 8, cl. 1; Article I, § 9, cls. 1, 4, 5, 6; Article I, § 10, cls. 2, 3.

n13 Declaration of Rights: Articles 14, 15; Constitution: Article II, § 17; Article III, §§ 32, 34, 51, 52, 54; Article VIII, § 3; Article XI, § 7; Article XI-E, § 5; Article XI-F, §§ 8, 9.

n14 Anne Arundel County Charter, §§ 608, 704, 709, 710, 718 and 719; Baltimore County Charter, §§ 704, 709, 710, 716 and 717.

   Neither Griffith v. Wakefield, supra, nor Cheeks v. Cedlair Corp., supra, upon which the plaintiffs rely, are to the contrary.  As Judge Rodowsky noted in his dissent in [*239] Griffith v. Wakefield, supra, 298 Md. at 390-391, 470 A.2d at 350-351, "the majority opinion does not conflict" with the conclusion that taking fiscal power away from the county council is "bedrock charter material" that "alters the form and structure of government . . . in a [***20]most fundamental way." Instead both Griffith v. Wakefield and Cheeks v. Cedlair Corp. were concerned with attempts by the voters to initiate detailed legislation through the guise of charter amendments.

   In Cheeks v. Cedlair Corp., this Court invalidated a proposed amendment to the Baltimore City charter which would have created a tenant-landlord commission and would have imposed a comprehensive system of rent control.  We held that the proposed amendment was an attempt to "divest the [City] Council of its acknowledged . . . power to legislate on the subject of rent control." 287 Md. at 609, 415 A.2d at 262. Thus, the proposed amendment was essentially legislative in nature and not valid charter material.

   The proposed charter amendment in Griffith v. Wakefield sought to create a system of binding arbitration for Baltimore County and the fire fighters' union. The proposal set forth in detail the entire system of arbitration and left "nothing for the determination of the County Executive or the County Council." 298 Md. at 386, 470 A.2d at 348. The Court held that the amendment was invalid [***21]because it was "'essentially legislative in character;' [and] it [was] a complete and specifically detailed legislative scheme." 298 Md. at 388, 470 A.2d at 349. In distinguishing Maryland Cl. Emp. Ass'n v. Anderson, 281 Md. 496, 380 A.2d 1032 (1977), the Court stated (298 Md. at 389, 470 A.2d at 350):
"It is common for constitutions or charters to authorize, or preclude, specified types of enactments by legislative bodies.  This is quite different from a charter itself containing all of the detailed provisions concerning the subject."
 
See also Harford County v. Board, 272 Md. 33, 39, 321 A.2d 151, 154 (1974) ("It is not uncommon for people to [*240] write into their basic charter a restriction upon the powers of their legislative body"); Bell v. Arel, 123 N.H. 311, 316, 461 A.2d 108, 110-111 (1983) (citizens may require limits on taxation as long as no impairment of the city's ability to carry out its mandatory obligations will occur); E. McQuillin, The Law [**1232] [***22] of Municipal Corporations, § 44.26 (3rd ed. 1984) ("A common express restriction upon the municipal power to tax is one limiting the amount or the rate that may be imposed in any one year.  The validity of such a provision generally is sustained").

   The proposed Property Tax Limitation amendments at issue here did not suffer from the same weakness as was presented by the proposed amendments in Cheeks and Griffith.  These proposed tax limitation amendments were not back-door attempts by the voters of Baltimore and Anne Arundel Counties to enact detailed legislation.  Nor did they divest the county councils of the ability to set the property tax rates.  Rather, each would have merely precluded a particular type of enactment by the legislative body, namely the power to collect property taxes above the specified cap.

   There are also practical difficulties with the plaintiffs' position that the proposed Property Tax Limitation amendments would have impermissibly infringed on the legislative power conferred on the county councils by Art. XI-A and thus were not proper charter material.  Acceptance of the plaintiffs' arguments that limits cannot be placed on the budgetary and fiscal[***23] authority of county councils would result in the invalidation of many existing provisions in county charters which, as previously noted, limit the power of the county councils in these areas.  For example, the executive budget system, in effect in several counties, places a greater restriction on the fiscal power of the county councils than these proposed Property Tax Limitation amendments would have. Under the executive budget system, the county executive prepares and submits a budget for each fiscal year.  See Baltimore County Charter, § 706; Anne Arundel County Charter, § 706.  The county [*241] council has "no power to change the form of the budget as submitted by the county executive, to alter the revenue estimates except to correct mathematical errors, or to increase any expenditure recommended by the county executive for current or capital purposes." Baltimore County Charter, § 709; Anne Arundel County Charter, § 709. Various other limitations on the fiscal powers of the two county councils are contained in their charters. See note 14, supra.

   Consequently, we hold that a provision in a county charter placing restrictions upon the county council's revenue raising[***24] authority is a fundamental aspect of the form and structure of government and thus is proper charter material.

   B.

   The proposed Property Tax Limitation amendments also were challenged on the ground that they conflicted with public general law, Code, §§ 6-302(a) and 6-308 of the Tax-Property Article. n15

n15 Section 6-302(a) provides:

   "(a) In general.  -- Except as otherwise provided in this section and after complying with § 6-305 of this subtitle, in each year after the date of finality and before the following July 1, the Mayor and City Council of Baltimore City or the governing body of each county annually shall set the tax rate for the next taxable year on all assessments of property subject to that county's property tax."
Section 6-308 provides in relevant part as follows:
"§ 6-308.  Constant yield tax rate.

   "(b) In general.  -- (1) Unless the requirements of this section are met, a taxing authority may not set a county or municipal corporation property tax rate that exceeds the constant yield tax rate in any taxable year excluding revenue from property appearing for the first time on the assessment roll . . . .

   "(c) Notice of rate change.  -- If a taxing authority intends to set a county or municipal corporation property tax rate that exceeds the constant yield tax rate, it shall advertise to the public . . . .

   * * *

   "(e) Contents of notice.  -- The notice shall state:

   (1) that the meeting is being held to hear comments regarding an increase in the county or municipal corporation property tax rate that will make the rate exceed the consent [sic] yield tax rate; and

   (2) the day, time, and location of the meeting.

    * * *

   "(g) Adoption of tax rate.  -- After the meeting, the taxing authority may adopt by law an increase in the county or municipal corporation property tax rate that exceeds the constant yield tax rate . . . ."

[***25]

   [*242] [**1233]

   We have on numerous occasions pointed out that "[w]hen a provision in a county charter conflicts with a public general law, the public general law prevails under Art. XI-A, § 1." Rosecroft Trotting & Pacing v. P.G. County, 298 Md. 580, 599, 471 A.2d 719, 729 (1984). See also Montgomery County v. Board of Elections, 311 Md. 512, 514, 536 A.2d 641, 642 (1988); East v. Gilchrist, 296 Md. 368, 374, 463 A.2d 285, 288 (1983); Wilson v. Bd. of Sup. of Elections, 273 Md. 296, 301, 328 A.2d 305, 308 (1974); Schneider v. Lansdale, 191 Md. 317, 61 A.2d 671 (1948). Nevertheless, "[w]herever reasonably possible, courts will construe enactments so that there is no conflict.  This principle avoids the need to invalidate one law or the other." Town of Forest Heights v. Frank, 291 Md. 331, 337, 435 A.2d 425, 428 (1981); Wilson v. Bd. of Sup. of Elections, supra, 273 Md. at 301, 328 A.2d at 308.[***26]

   Section 6-302(a) of the Tax-Property Article provides that the government body of a county shall set the tax rate on property for the next taxable year. The proposed tax limitation amendments would not have conflicted with this provision.  If the proposed amendments had been adopted, the county councils of Baltimore and Anne Arundel Counties could still have exercised discretion to determine the tax rates on property for the next taxable year.  A limitation would simply have been placed on this power, so that the increase in property tax revenue for the next tax year could not have exceeded 2% in Baltimore County or 4.5% in Anne Arundel County.  The proposed tax limitations would not have had the effect of allowing the electorate of the two counties to set the tax rates. As required by § 6-302(a), the legislative body in each county would continue to set the [*243] tax rate on property.  There is no language in the statute indicating that reasonable limits cannot be placed on the legislative power to set the tax rate.

   Nor do we agree with the plaintiffs' argument that the proposed Property Tax Limitation amendments conflicted with § 6-308 of the Tax-Property Article.  Both Baltimore[***27] and Anne Arundel Counties contended that § 6-308(g) constitutes an affirmative grant of power authorizing the county councils to adopt an increase in the property tax rate which exceeds the constant yield rate.  We have previously held, however, that § 6-308(g) represents a limitation on the taxing power of a county.  Garrett County v. Bolden, 287 Md. 440, 446-447, 413 A.2d 190, 193 (1980). We stated that the purpose of § 6-308 "is to focus public attention from one year to the next on the interrelationship between the rate of property tax and the assessable basis in a period of rising property values." Ibid. Contrary to the plaintiffs' interpretation, § 6-308 specifies detailed procedural requirements with which a county governing body must comply before it will be permitted to increase the tax rate above the constant yield rate.  The proposed tax limitation amendments would have also limited the power of the county councils to raise the tax rate above the constant yield rate.  Since § 6-308 is a procedural provision limiting a county's authority, rather than an affirmative grant of power, it does not conflict with the proposed[***28] Property Tax Limitation amendments.

   C.

   We hold that the tax cap portions of the proposed Property Tax Limitation amendments were facially valid because they constituted proper charter material and did not conflict with public general law. Nevertheless, we render no opinion as to the validity of the tax caps as they might have been applied in practice. County governments are required by state law to provide many public services such as public education, police and fire protection services, [*244] water and sewage services, etc.  If it is subsequently demonstrated in a particular case that a local limitation on property tax revenues so hampers a county government that it cannot perform the duties required under state law, a tax limitation charter provision may well be found to be invalid as applied.  See E. McQuillin, The Law of Municipal Corporations, supra, at § 44.26.

   [**1234] IV.

   While the tax cap portion of the proposed Property Tax Limitation amendments were valid, there were two aspects of the amendments that were inconsistent with public general law and thus were invalid. Those portions of the amendments, however, were severable.

   A.

   The "roll back" provisions[***29] of the proposed amendments would have limited the amount of property tax revenues for the tax year 1991-1992 to no more than the amount collected in the tax year 1989-1990 for Baltimore County, and no more than that collected in the tax year 1988-1989 for Anne Arundel County.  These provisions violated § 6-302(a) of the Tax-Property Article which mandates that the governing body of each county is to set the property tax rate for the next tax year. Unlike the tax cap provisions that would have simply placed a limit on the taxing power of each county council, the roll back provisions would have transferred the county councils' § 6-302(a) powers to the voters. Instead of the councils setting the tax rates, the roll back provisions would have allowed the voters of Baltimore and Anne Arundel Counties to set the property tax rates for the tax year 1991-1992.

   In addition, each county's proposed amendment included an escape clause that would have allowed the county councils to increase the property tax rates in any given tax year above the rate specified in the tax cap by referring the proposed increase to the voters for approval.  The escape [*245] clause provisions were invalid for[***30] the same reason that the roll back provisions were invalid. Section 6-302(a) of the Tax-Property Article requires that a county's tax rate be set by the governing body of the county.  The effect of the escape clause provisions would have been that, even if a county council would determine in any given year that it is necessary to raise the tax rate above the limit specified by the cap, the voters of the county would have decided whether the rate would be raised to particular levels above the caps or would remain at cap levels.  Thus, in essence, the voters would be setting the tax rate for that year.

    In light of our conclusion that the escape clause provisions violated public general law, we need not deal with other issues that were raised concerning the validity of the escape clauses.

   B.

   Both the invalid roll back and the invalid escape clause provisions were severable from the valid portions of the proposed Property Tax Limitation amendments.  There is a strong presumption that if a portion of an enactment is found to be invalid, the intent is that such portion be severed. Sugarloaf Citizens Assoc. v. Gudis, 319 Md. 558, 574, 573 A.2d 1325, 1333 (1990); [***31]Porten Sullivan Corp. v. State, 318 Md. 387, 410, 568 A.2d 1111, 1122 (1990); State v. Burning Tree Club, Inc., 315 Md. 254, 297, 554 A.2d 366, 387 (1989); O.C. Taxpayers v. Ocean City, 280 Md. 585, 600, 375 A.2d 541, 550 (1977). This presumption has never been limited solely to bills enacted by the General Assembly, but has been applied to local ordinances, Anne Arundel County v. Moushabek, supra, 269 Md. at 430, 306 A.2d at 523, charter amendments, O.C. Taxpayers v. Ocean City, supra, 280 Md. at 601-603, 375 A.2d at 550-551, and provisions of the state constitution invalidated under the federal constitution, Davidson v. Miller, 276 Md. 54, 83, 344 A.2d 422, 439 (1975). This presumption applies even in the absence of an express clause declaring the drafters' intent that the enactment be severed if a portion is found to be [*246] invalid. Cities Service Co. v. Governor, 290 Md. 553, 575, 431 A.2d 663, 676 (1981); [***32]O.C. Taxpayers v. Ocean City, supra, 280 Md. at 600, 375 A.2d at 550. Inclusion of a severability clause, like the clause inserted in the proposed charter amendment in Baltimore County, reinforces the presumption.  Cities Service Co. v. Governor, supra, 290 Md. at 576, 431 A.2d at 676; O.C. Taxpayers v. Ocean City, supra, 280 Md. at 601, 375 A.2d at 550.

   [**1235] In addition to this general presumption, it is a settled principle that "[w]hen the dominant purpose of an enactment may largely be carried out notwithstanding the [enactment's] partial invalidity, courts will generally hold the valid portions severable and enforce them." O.C. Taxpayers v. Ocean City, supra, 280 Md. at 601, 375 A.2d at 550. See also State v. Burning Tree Club, Inc., supra, 315 Md. at 297, 554 A.2d at 387-388; Cities Service Co. v. Governor, supra, 290 Md. at 576, 431 A.2d at 676.

   The dominant purpose of the proposed Property Tax Limitation[***33] amendments was to place a cap on property tax revenues. We have upheld the facial validity of these tax cap provisions.  The purpose of the tax cap could have been carried out without the invalid roll back or escape clause provisions. Thus, under the principles set forth in the above-cited cases, we had a duty to sever the invalid provisions and allow the tax cap provisions to be submitted to the electorate at the November 1990 general election. n16

n16 We wish to point out that the Court did not rewrite, to suit itself, the proposed amendments in our Order of September 20, 1990.  Instead, applying the principles set forth in the above-cited cases, we simply deleted the portions of the amendments which we found to be invalid. This necessitated changing some of the dates specified in the proposed amendments in order to eliminate the invalid roll back provisions.  But cf. The Sun, October 9, 1990, editorial, p. 6A ("The Court of Appeals . . . took the unprecedented step of rewriting the referendum questions to suit the court's fancy.")

[***34]

   Despite these well established principles of severability, the plaintiffs argued that any invalid provisions should not be severed and that if any portion of the proposed [*247] amendment was invalid, the entire amendment should not be submitted to the electorate. In essence their argument was that severability principles did not apply to a proposed charter amendment. The severability principles discussed above are a fundamental part of the determination of validity.  This court has "consistently taken the position that the submission to the voters of a proposed charter amendment, in conflict with public general law, should be enjoined." Montgomery County v. Board of Elections, supra, 311 Md. at 518, 536 A.2d at 644; Wilson v. Bd. of Sup. of Elections, supra, 273 Md. at 300, 328 A.2d at 308; Planning Commission v. Randall, 209 Md. 18, 23-24, 120 A.2d 195, 198 (1956); Schneider v. Lansdale, supra, 191 Md. at 322, 61 A.2d at 673. Similarly, if a portion of a proposed charter amendment is invalid [***35] and severable, this Court has a duty to sever those portions when they are challenged.  See O.C. Taxpayers v. Ocean City, supra, 280 Md. at 600, 375 A.2d at 550; Shell Oil Co. v. Supervisor, 276 Md. 36, 48, 343 A.2d 521, 528 (1975); Bringe v. Collins, 274 Md. 338, 351, 335 A.2d 670, 678 (1975).

   This Court in Schneider v. Lansdale, supra, was confronted with the issue of whether portions of the proposed Montgomery County Charter conflicted with the Maryland Constitution.  The Court held that the challenged portions of the Charter under consideration were valid and, therefore, did not need to reach the issue of whether and when to sever portions found to be invalid. The Court, however, did infer that this determination would be based upon whether any invalid portion was "so inseparable from the remainder that its invalidity makes the whole invalid." Schneider v. Lansdale, supra, 191 Md. at 323, 61 A.2d at 673.

   Other language in Schneider arguably supports[***36] the idea that even if portions of a proposed charter amendment are invalid and capable of being severed, they should not be severed until after the election. Such language in Schneider was dicta.  Moreover, to the extent that it could be interpreted to allow voters to vote on invalid portions of a charter amendment, it is inconsistent with subsequent decisions [*248] of this Court and is erroneous.  See, e.g., Montgomery County v. Board of Elections, supra, 311 Md. at 520, 536 A.2d at 645 ("Allowing a vote on proposed charter amendments which, if approved by the electorate, cannot go into effect because they conflict with higher law, would be to sanction 'straw votes' on a multitude of [**1236] public issues or potential issues").  Furthermore, submission of an amendment with invalid and severable portions intact would mislead the public during the election by asking them to vote on an amendment which, in its present form, was incapable of becoming part of their charter. We do not believe that it is appropriate to deceive the voters in this fashion.

   We have determined in this case that severance of the invalid portions does [***37]not destroy the dominant purpose of the amendments and that they were not "so inseparable from the remainder that [their] invalidity makes the whole invalid." Schneider, 191 Md. at 323, 61 A.2d at 673. Thus, the invalid roll back provisions and the invalid escape clause provisions of the Property Tax Limitation amendments were severed. The tax cap provisions were properly submitted to the voters of Baltimore and Anne Arundel Counties at the November 6, 1990, general election.

CONCURBY: CHASANOW (In Part)

DISSENTBY: MURPHY; CHASANOW (In Part) 

STATE of Maryland v. Shirley Mitchell BROWN 
No. 30, September Term, 1991
 
COURT OF APPEALS OF MARYLAND
 
327 Md. 81; 607 A.2d 923; 1992 Md. LEXIS 113
 
   June  19, 1992, Filed

   PRIOR HISTORY: [***1] Certiorari to Court of Special Appeals.  (Circuit Court for  Anne Arundel  County).  Raymond G. Thieme, Jr., JUDGE

DISPOSITION: JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED.  CASE REMANDED TO THAT COURT WITH DIRECTIONS TO REMAND THE CASE TO THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY TO CONDUCT A NEW TRIAL IN ACCORDANCE WITH THIS OPINION.  COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID BY ANNE ARUNDEL COUNTY.

CORE TERMS:  drug transaction, disclosure, modus operandi, relevance, admissible, discovery, cocaine, unlawfully obtained, crimes evidence, admissibility, disclose, hearsay evidence, probative value, discoverable, sentencing, guilty plea, intermediate, undercover officer, new trial, involvement, intends, discovery violation, motion to suppress, undercover agent, contested issue, unfair, subset, Maryland Rule, record of conviction, apartment

COUNSEL: Kreg Paul Greer, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., both on brief) Baltimore, for petitioner.

   H. Richard Duden, III (Henley & Duden, both on brief) Annapolis, for respondent.

JUDGES: Murphy, C.J., Eldridge, Rodowsky, McAuliffe, Chasanow and Karwacki, JJ., and Charles E. Orth, Jr., Judge of the Court of Appeals (retired), Specially Assigned.  Eldridge, Judge, concurring and dissenting.

OPINIONBY: CHASANOW

OPINION: [*83] [**924]

   Shirley Mitchell Brown was convicted by a jury in the Circuit Court for Anne Arundel County of distribution and conspiracy to distribute cocaine. The charges against Brown stemmed from an ongoing undercover investigation of drug activity in Annapolis.  When that investigation focused on Brown as a likely suspect, Special Agent Kenneth Johnson of the[***2] Drug Enforcement Administration contacted paid confidential informant Reginald Gray to arrange for Johnson to be introduced to Brown so that Johnson could then buy cocaine from Brown.  Agent Johnson testified that originally he and Gray were to meet Brown at a shopping center in Annapolis, but those plans fell through.  Gray testified that Brown was unwilling to deal directly with Agent Johnson, preferring instead to deal with Gray, whom he knew.

   [*84]

   On February 17, 1988 Johnson and Gray drove to the Brooks Court Apartments in the Newton 20 area of Annapolis.  There the two stopped the car in the apartment parking lot just past a group of men standing near a parked car.  For Johnson's benefit, Gray identified Brown among the group before getting out of the car and approaching him.  According to Gray's testimony, he and Brown had a brief conversation during which he asked the price of an ounce of cocaine and Brown replied that it would cost $1350.  Gray then returned to the car and advised Johnson of the substance of the exchange.  At Brown's request, Gray told Johnson to park the car farther down the parking lot.  At that same time, Johnson saw Brown talk to another individual[***3] who then walked into apartment 805B of Brooks Court.

   Agent Johnson testified that approximately five minutes later a man approached Johnson's car from the general direction of apartment 805B and identified himself to Johnson as "Larry." He handed Johnson an ounce of cocaine, stating that its price was $1350.  Johnson gave Larry $1400 and then watched as Larry walked over to Brown, made an exchange with him, and returned to Johnson to give him $50 change.  Detective Todd Young of the Anne Arundel County Police Department saw this transaction from the vantage point of his car parked in another section of the parking lot and corroborated most of Johnson's and Gray's testimony.

   Over defense counsel's objection, Detective Young also testified that he was involved in an undercover cocaine purchase from Brown which occurred on March 7, 1988, roughly three weeks after the drug transaction here at issue.  The court granted a continuing objection pursuant to Maryland Rule 4-323(b) to any testimony regarding the March 7, 1988 incident on the grounds of surprise, relevance, undue prejudice, and failure of the State to provide discovery. The trial court permitted the following exchange between[***4] the State's Attorney and Detective Young regarding the March 7, 1988 drug purchase:
 
[*85] Q: Now, did he hand the drugs to you or did he hand the drugs to the CI [confidential informant]?
 
A: No, he handed the drugs to the CI.
 
Q: What did Mr. Brown say to the CI?
 
A: He told the CI the next time for him to do a deal by himself.
 
Q: Did Mr. Brown then have occasion to say anything to you?
 
A: Yes.  He told me that it's not that -- he said exactly, "It's not that you're [**925] not okay, I just don't deal with anybody new."

   Following this testimony, defense counsel objected that evidence of Brown's involvement in the second drug deal was irrelevant and highly prejudicial.  The trial court allowed this testimony and also admitted the record of Brown's resulting conviction for distribution of cocaine, finding that neither was being offered to show Brown's propensity to commit the crime, but rather as evidence of Brown's "identity."

   On appeal, the Court of Special Appeals held that Brown's statement to Detective Young was discoverable under Md.Rule 4-263(b)(2) and should have been produced in response to Brown's request.  Further, that court found that this discovery violation[***5] was a sufficient ground for granting a mistrial because it could not say, beyond a reasonable doubt, that Brown would have been convicted on the evidence presented minus his statement to Young.  Brown v. State, 85 Md.App. 523, 532-34, 584 A.2d 164, 169-70 (1991). Noting that this holding was dispositive of the appeal, the intermediate appellate court nevertheless went on for the benefit of the judge on retrial to address the admissibility of the evidence of Brown's actions during the second sale.  The Court of Special Appeals ruled that the trial judge abused his discretion in admitting evidence of the March 7, 1988 transaction, because its probative value was outweighed by its prejudicial effect.

   [*86]

   This Court granted certiorari to review each of these two holdings, as well as a third issue relating to the admissibility of hearsay evidence at sentencing. 323 Md. 27, 590 A.2d 549 (1991).

   I. Admissibility of Evidence at Trial

   We must first consider whether the trial court erred in admitting evidence regarding Brown's involvement in the March 7, 1988 drug transaction. The admitted evidence[***6] consisted of "one sheet showing the entry of [Brown's] guilty plea" to distribution of cocaine as well as Detective Young's testimony about Brown's statements and physical acts during that drug transaction. In its petition for certiorari, the State alleges that:
"In this case, evidence of Brown's involvement in a drug transaction other than that for which he was standing trial was relevant to establish his participation in the instant offense.  Indeed, inasmuch as Brown himself did not make the actual delivery of the cocaine to the undercover officer, it was imperative that the State show the precise extent of Brown's involvement in the charged drug transaction. Evidence of his unwillingness to deal directly with persons with whom he was unfamiliar, as evidenced by his statement to Officer Young in the March 7, 1988 drug transaction to the effect that he did not deal with strangers, goes to explain and reinforce . . . [Brown's participation in the instant offense]."
 
The Court of Special Appeals categorized all the evidence as "other crimes" evidence and indicated that the trial judge had abused his discretion in admitting it.  As to evidence of Brown's conviction as the result[***7] of his guilty plea for the second drug deal, we believe it was correctly categorized as "other crimes" circumstantial evidence.  If only Brown's conduct and the resulting conviction were offered, the evidence would not be admissible, since it would not fall within the identity exception for which it was proffered.  Brown's statement during the transaction, however, was admissible because it had special relevance to a contested issue in the [*87] case, was not introduced simply to prove criminal character, and had probative force that substantially outweighed its potential for unfair prejudice.  See Harris v. State, 324 Md. 490, 597 A.2d 956 (1991).

   The Court of Special Appeals concluded that "[t]he events of March 7, 1988 are insufficient to establish a modus operandi unique to appellant when linked with the events of February 17, 1988 and thus had little, if any, probative value." Brown v. State, 85 Md.App. at 537, 584 A.2d at 171. Had this evidence been offered in the absence of the statement, we would agree that Brown's use of a "runner" to deliver cocaine was not "'so unusual  [***8] and distinctive [**926]as to be like a signature'" and earmark the crime as the handiwork of the accused.  State v. Faulkner, 314 Md. 630, 638, 552 A.2d 896, 900 (1989), (quoting McKnight v. State, 280 Md. 604, 613, 375 A.2d 551, 556 (1977), in turn quoting McCormick on Evidence § 190, at 479 (2d ed. 1972)).  Were this the only ground of admissibility, the "other crimes" evidence could not be admitted. n1

n1 This Court most recently addressed the admissibility of other bad acts or crimes evidence in Harris v. State, 324 Md. 490, 597 A.2d 956 (1991). There the Court held that such evidence is generally not admissible unless "the evidence 1) has special relevance, i.e. is substantially relevant to some contested issue in the case and is not offered simply to prove criminal character, and 2) has probative force that substantially outweighs its potential for unfair prejudice . . . ." Id. at 500, 597 A.2d at 961. The Court of Special Appeals decided the instant case below and the parties argued to this Court before we had filed our decision in Harris.  The intermediate appellate court concluded that the trial judge had abused his discretion in admitting the evidence because its probative value was clearly outweighed by its prejudicial effect.  While this is a valid conclusion, we doubt that the evidence would survive Harris' threshold inquiry as to the "special relevance" of the evidence.

[***9]

   We agree with the Court of Special Appeals that the conviction must be reversed, although for substantially different reasons.  Since the Court of Special Appeals "for the direction of the court on retrial" indicated that all of the events on March 7, 1988 would be inadmissible, we feel compelled to correct the intermediate appellate court's instructions [*88] and to point out that Brown's statement on that date also relates to the sale in the instant case and was properly admitted.

   Brown's statement is not confined to the sole category of "other crimes" evidence.  During the March 7, 1988 drug transaction, Brown told Detective Young: "It's not that you're not okay, I just don't deal with anybody new." A reasonable implication from Brown's statement is that he conducts an ongoing drug business in which he has direct contact only with customers he knows and, with customers like the undercover agent in the instant case whom he does not know, he deals indirectly through an intermediary.  Brown's explanation of how he conducted his ongoing business was probative of how he conducted that same business 2 1/2 weeks earlier during the sale here charged.  Moreover, Brown's statement would[***10] not be objectionable on the ground of hearsay, because it was an admission of a party opponent.  This Court has stated that "an admission is a statement of pertinent facts which, in connection with proof of other facts, tends to prove guilt . . . ." Holland v. State, 244 Md. 671, 673, 224 A.2d 864, 865 (1966). See also 2 McCormick on Evidence, § 254 (4th ed., J. Strong 1992).

   The Court of Special Appeals saw the issue as only involving the admissibility of "other crimes" evidence.  We disagree.  The evidence was not simply that on another occasion Brown also sold drugs -- it was that Brown made an admission about the manner in which he acts when carrying on his drug business.  His statement related to not just the March 7th drug sale -- it also related to and explained his actions on February 17, 1988.

   The statement has relevancy, therefore, far beyond any improper suggestion that Brown has a criminal propensity, or that since he dealt drugs on another occasion, he is more likely to have done so in the case charged.  Perhaps an analogous situation might be a case where the defendant was charged with selling drugs to an undercover[***11] agent at a certain location on Tuesday, April 2.  Two weeks later, on [*89] Tuesday, April 16, the defendant sold drugs to a second undercover agent at the same location.  On the second occasion the defendant said, "I sell drugs in this area only on Tuesdays." The second sale would not be admissible to prove guilt of the first sale, but the admission about selling drugs on Tuesdays might be admissible. Likewise, Brown's statement is relevant to the manner in which he operates and operated on February 17, 1988.

   Obviously, Detective Young's testimony about Brown's statement would make little sense to the jury if offered in a vacuum.  An explanation of the context in [**927] which the statement was made is necessary to make clear the implications of the statement.  To that end, Detective Young's testimony concerning Brown's conduct as well as his statements during the March 7, 1988 transaction might be properly admitted.

   The evidence with probative value is Brown's statement about how he generally conducted his drug business, not the fact that he sold drugs on March 7.  A one-page record of conviction showing Brown's guilty plea to the March 7th sale was offered, over objection, [***12] following Detective Young's testimony about the sale and Brown's admission.  The record of conviction was unnecessary "other crimes" evidence of the second sale, and not of Brown's admission during that sale.  Therefore, it should not have been admitted.

   We must next address whether admitting the one-page record of Brown's guilty plea to the March 7th sale was harmless beyond a reasonable doubt.  The jury might have misused the conviction to draw an inference that Detective Young's testimony was more credible because it was corroborated by evidence of the guilty plea conviction.  Further, the sheet which revealed Brown's guilty plea -- and thus his conviction -- also showed that the judge had ordered Brown to undergo weekly urinalyses and to be subjected to a "drug history" investigation. This information, which went beyond the conviction, may have indicated to the jury [*90] the judge's belief that Brown was a habitual drug user.  The prejudicial effect of the record of conviction, therefore, outweighed its probative value, and its admission was not harmless beyond a reasonable doubt. For these reasons, the conviction must be reversed.

   II. Scope of Md.Rule 4-263(b)(2)

    The second[***13] issue raised in the petition for certiorari, which we hold was erroneously decided by the Court of Specials Appeals, is whether the State was compelled, in response to Brown's pretrial request, to disclose the admission that Brown made to Detective Young that "I just don't deal with anybody new." The resolution of this issue requires us to further define the scope of discovery mandated by Maryland Rule 4-263(b)(2), which provides:
"(b) Disclosure Upon Request.  -- Upon request of the defendant, the State's Attorney shall:

   * * *
 
2) Statements of the Defendant.  -- As to all statements made by the defendant to a State agent that the State intends to use at a hearing or trial, furnish to the defendant, but not file unless the court so orders: (A) a copy of each written or recorded statement, and (B) the substance of each oral statement and a copy of all reports of each oral statement."
 
Present Rule 4-263 was derived from former Md.Rule 741 and was adopted without significant change to the language that addresses the required disclosure of a defendant's statements.  This Court has not previously had occasion to address a discovery challenge under 4-263(b)(2), but those[***14] cases interpreting the same language in former 741(b)(2) are controlling.

   Although the literal language of 4-263(b)(2) refers to "all statements made by the defendant to a State agent that the State intends to use at a hearing or trial," we have explained that the scope of required disclosure is defined by the underlying policies of the Rule.  In defining those [*91] "statements" which the State must disclose, this Court most recently explained that subsection (b) cannot be read in isolation, but should be read in conjunction with subsection (a).  Bailey v. State, 303 Md. 650, 655, 496 A.2d 665, 667 (1985). Maryland Rule 4-263(a) provides in pertinent part:
"Discovery and inspection in circuit court shall be as follows:

   (a) Disclosure Without Request. -- Without the necessity of a request, the State's Attorney shall furnish to the defendant:

   * * *

   (2) Any relevant material or information regarding: (A) specific searches and seizures, wire taps or eavesdropping, (B) the acquisition of statements made [**928]by the defendant to a State agent that the State intends to use at a hearing or trial, and (C) pretrial identification[***15] of the defendant by a witness for the State." (Emphasis added.)

   This Court has indicated through both judicial interpretation and its constitutional rulemaking power that the scope of the "statements" under Rule 4-263(a)(2)(B) and (b)(2) is to be parallel.  Further, the Court has consistently interpreted the scope of the "statements" in accordance with the underlying policies of the disclosure rule.  The Court in White v. State, 300 Md. 719, 481 A.2d 201 (1984), cert. denied, 470 U.S. 1062, 105 S.Ct. 1779, 84 L.Ed.2d 837 (1985), addressed the scope of disclosure under former Md.Rule 741(a)(2)(b), which by its language required the State to disclose "statements made by the defendant." While the literal language of the Rule may have implied a broader scope, the Court held that the express limitation in subsection (b)(2) -- statements made to a State agent that the State intends to use at a hearing or trial -- should also be read into subsection (a)(2).  White, 300 Md. at 733, 481 A.2d at 208. The Court adopted this limited interpretation [***16]of "statements" based on the clear relationship between the disclosure rule and the rule dealing with pretrial suppression motions.  Judge Rodowsky, writing for the Court, stated [*92] that "the purpose of Rule 741 a 2 is to force the defendant to file certain motions before trial, including a motion to suppress an unlawfully obtained statement." Id. at 734, 481 A.2d at 208. Consequently, the Court concluded that "[b]ecause statements made to third parties who are not State agents cannot ordinarily be the subject of a motion to suppress on the ground that they have been unlawfully obtained, they are not within the ambit of disclosure required by Rule 741 a 2." Id. at 736, 481 A.2d at 209.

   In 1985 this Court, through its rulemaking power, incorporated the interpretation of subsection (a)(2) as set forth in White by adding the language "made to a State agent that the State intends to use at a hearing or trial" in order to provide for the consistency of treatment of subsections (a)(2) and (b)(2).  12:21 Maryland Register 2017-18, 2020 (October 10, 1985); 13:9 Maryland Register 1012 (April[***17] 25, 1986).  Thus, the language of both subsections makes clear that Rule 4-263 was not intended to authorize wide-open discovery of all of a defendant's statements.  It does not authorize discovery of admissions or confessions made to one who is not a State agent.  Rather, it provides for the discovery of statements which might possibly have been unlawfully obtained.

   In Jennings v. State, 303 Md. 72, 492 A.2d 295 (1985), n2 the Court again identified a limitation on the scope of required State disclosure of "statements." The Court in Jennings held that comments made by the defendant to an undercover officer in connection with an illegal drug sale for which the defendant was being tried were not "statements" within the meaning of subsections (a)(2)(b) and (b)(2).  The Court noted that "the issue presented concerns the meaning of 'statement(s)' as used in both § a 2(b) and b [*93] 2" and explained the relationship between these two subsections:
"The discovery of contents of statements was governed by § b, and the automatic production required by § a of 'material or information dealing with circumstances in which a statement was [***18] obtained from the accused by a State agent' triggered the running of the time under former Md.R. 736 b within which the defendant was to file a motion to suppress."
 
Id. at 76-77, 492 A.2d at 297. Thus, the Court in Jennings indicated that the scope of the "statements" contemplated by the two subsections was to be parallel.  If the State was not compelled to disclose the "relevant material or information regarding . . . the acquisition of" the statement under subsection (a)(2)(b), neither would [**929] the State be required, upon defendant's request, to disclose the "substance" of the statement under subsection (b)(2).

n2 The Criminal Rules Subcommittee, in considering the evolving scope of discovery as defined by Jennings v. State, 303 Md. 72, 492 A.2d 295 (1985), stated that it "believe[d] that this matter of interpretation is best left to developing caselaw." Minutes of September 13, 1985 Rules Committee at 66-67.

[***19]

   In Jennings, we looked both to the background of the Maryland Rules and to Federal Rule of Criminal Procedure 16(a)(1)(A) n3 for guidance.  We then reasoned that "[u]nder a state rule tracking current FED.R.CRIM.P. 16 Jennings' conversation with [the undercover officer] would not be discoverable. At a minimum this would be because their conversation was not electronically recorded and because [the undercover officer] was not at the time known to Jennings to be a State agent." Id. at 85, 492 A.2d at 301-02. [*94] See, e.g., United States v. McClure, 734 F.2d 484, 493 (10th Cir.1984) (oral statements made by defendant to undercover agent during drug deal were not discoverable because defendant did not know true identity of agent when statements were made during deal).

n3 FED.R.CRIM.P. 16(a)(1)(A), insofar as it is relevant to the case before us, provides:
"(A) Statement of Defendant.  Upon request of a defendant the government shall permit the defendant to inspect and copy or photograph: any relevant written or recorded statements made by the defendant, or copies thereof, within the possession, custody or control of the government, the existence of which is known, or by the exercise of due diligence may become known, to the attorney for the government; the substance of any oral statement which the government intends to offer in evidence at the trial made by the defendant whether before or after arrest in response to interrogation by any person then known to the defendant to be a government agent; and recorded testimony of the defendant before a grand jury which relates to the offense charged." (Emphasis added.)

[***20]

   The Court in Jennings expressly, and implicitly by citing the federal corollary, emphasized that the underlying purpose of disclosure under subsections (a)(2) and (b)(2) is to force the defendant to file a motion to suppress prior to trial.  See also Bailey, 303 Md. at 655, 496 A.2d at 667, where the Court noted "that there is an interrelationship between §§ a and b of the rule and that the automatic disclosure required by § a is designed to force the accused to file any motions to suppress in advance of trial on the merits." Admissions, statements, or confessions that might have been unlawfully obtained are subject to a pretrial motion to suppress under Md.Rule 4-252(a)(4).  Under Rule 4-252 an allegation that an admission, statement, or confession was unlawfully obtained must be raised by pretrial motion or it is waived.  In limiting by rule required State disclosure to statements made to State agents, and in excluding by decision statements made to State agents during the commission of the crime, this Court has, as have the federal courts, made it clear that oral statements which must be disclosed under 4-263 are those statements[***21] which might possibly have been unlawfully obtained and suppressible under 4-252.  Statements made during the commission of the crime, albeit to a State agent, could not possibly have been unlawfully obtained and under Jennings need not be disclosed under 4-263.  The statement made in the instant case is analogous to the statements in Jennings.  In both cases the statements were made during drug deals to persons who were not known to be State agents and who were not trying to elicit any admissions or confessions.

   There is not the slightest suggestion before this Court that Officer Young's involvement in the second drug transaction was for the purpose of inducing or deliberately eliciting Brown's statement.  Rather, Brown voluntarily [*95] made the statement under circumstances involving no interrogation or coercion. Brown, therefore, did not and could not contend that his statement was acquired in violation of his Fourth, Fifth, or Sixth Amendment rights.  We can find no reason to compel the State to produce a statement voluntarily made to an undercover officer during a drug transaction merely because it occurred after the crime for which the defendant was charged.  Consequently, [***22] Brown's statements, like Jennings', are not discoverable under Md. Rule 4-263(a)(2)(B) and (b)(2).  The State was required to disclose neither the substance of Brown's admission nor the circumstances behind its acquisition; therefore, no discovery violation occurred for which a sanction could be imposed.

   [**930] As a final word on required State disclosure under this Rule, we note that the State should err on the side of disclosure in any case where there reasonably exists the possibility that the statement was unlawfully obtained. This word of caution is issued because if the statement was discoverable and wasn't provided, the trial court may, within its discretion, impose a sanction for the discovery violation under 4-263(i).  Subsection (i) authorizes the trial judge to order the violating party "to permit the discovery of the matters not previously disclosed, strike the testimony to which the undisclosed matter relates, grant a reasonable continuance, prohibit the party from introducing in evidence the matter not disclosed, grant a mistrial, or enter any other order appropriate under the circumstances." Thus, the State should consider the possible repercussions of failing to[***23] disclose a statement that the defendant had reasonable grounds to argue was subject to a pretrial suppression motion.

   III. Admissibility of Evidence at Sentencing

   Brown's final argument to this Court is that the trial court erred by passing sentence based on hearsay evidence of dubious reliability.  Because we have remanded this case for a new trial, we need not review any possible error in [*96]sentencing. We do note, however, that should Brown be subject to resentencing, any hearsay evidence admitted by the sentencing court must meet the requirements of Maryland Code, Art. 27, § 298(d) (1987 Repl.Vol., 1991 Cum. Supp.):
 
"(d) Use of hearsay evidence.  -- Notwithstanding any provision of law to the contrary, at any hearing relating to bail or sentencing arising out of any violation or alleged violation of any provision of this subheading, hearsay evidence shall be admissible if relevant to the issue and if the underlying circumstances upon which it is based and the reliability of the source of the information is demonstrated." (Emphasis added.)

   Accordingly, we must remand this case for a new trial. At the new trial, the State should be allowed to prove Brown's [***24] admission and the circumstances surrounding the admission but not the record of conviction of the subsequent distribution charge.

   JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED.  CASE REMANDED TO THAT COURT WITH DIRECTIONS TO REMAND THE CASE TO THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY TO CONDUCT A NEW TRIAL IN ACCORDANCE WITH THIS OPINION.  COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID BY ANNE ARUNDEL COUNTY.

CONCURBY: ELDRIDGE (In Part)

DISSENTBY: ELDRIDGE (In Part)

DISSENT: ELDRIDGE, Judge, concurring and dissenting:

   I concur in both the grant of a new trial and in the first paragraph of Part III of the majority's opinion, relating to the admissibility of hearsay evidence at sentencing. I do not agree, however, with the remainder of the majority's opinion or with that portion of the judgment directing that the new trial be conducted in accordance with the majority's opinion.

   [*97] I.

   The basis for the Court of Special Appeals' reversal of the defendant's conviction was the court's holding that the State had violated Maryland Rule 4-263(b)(2) by failing to disclose the defendant's statement made to Detective Young.  The first question presented in the State's petition for a writ of [***25]certiorari was as follows:

   "1. Did the Court of Special Appeals err in concluding that Maryland's discovery rule requires the State to disclose, upon defense request, statements made by the defendant to an undercover police officer during the commission of a crime, where evidence of that crime is offered as 'other crimes' evidence at the defendant's trial?"
 
The majority deals with this issue in Part II of its opinion.

   For the reasons set forth in my dissenting opinion in Jennings v. State, 303 Md. 72, 86-88, 492 A.2d 295, 302-303 (1985), I disagree with Part II of the majority's opinion [**931] in this case.  Furthermore, even if I had agreed with the Court's holding in Jennings, I would dissent from the majority's expansion of the Jennings holding in this case.  As Judge Bishop pointed out for the Court of Special Appeals below (Brown v. State, 85 Md.App. 523, 532, 584 A.2d 164, 169 (1991)),
 
"[m]oreover, . . . Jennings concern[ed] statements made to State agents during the commission of the crime on trial, and not statements made during subsequent crimes.

   "The case [***26] sub judice does not fall within the limited . . . Jennings exclusion [].  The plain reading of Md.Rule 4-263(b)(2) requires the disclosure of 'all statements' made to State agents.  . . . Jennings . . . excluded the 'obvious' statements in any illegal drug sale, the verbal acts necessary to effect a transaction.  In . . . Jennings the statements were negotiations for the purchase of illegal drugs.  Further, the excluded verbal acts formed the crime for which the defendant was standing trial.  To ensure that the accused will have the opportunity to [*98] prepare a defense free from unfair surprise, we will strictly construe every limitation upon Md.Rule 4-263(b)(2).  Only those statements that pertain directly to verbal acts necessary to effect the commission of the crime for which the defendant is accused are excluded from Md.Rule 4-263(b)(2).  Appellant's statement was an extraneous remark made at the conclusion of a sale of cocaine conducted almost three weeks after the alleged transaction for which the defendant was on trial. It was discoverable under Md.Rule 4-263(b)(2), and should have been produced in response to the defendant's request."

   II.

   While the Court[***27] of Special Appeals ruled that the discovery violation was "dispositive of the appeal," the intermediate appellate court "for the direction of the court on retrial . . . respond[ed]" to the defendant's contention that the evidence concerning the March 7, 1988, drug transaction was inadmissible "other crimes" evidence.  The majority disagrees with the Court of Special Appeals' suggestion that all of this evidence is inadmissible, and the majority feels "compelled to correct the intermediate appellate court's instructions." Maj. at 87-88.

   The majority asserts that Brown's statement during the March 7, 1988, transaction "was admissible because it had special relevance to a contested issue in this case, was not introduced simply to prove criminal character, and had probative force that substantially outweighed its potential for unfair prejudice." Maj. at 86-87.  In my view the Court of Special Appeals was justified in concluding that the evidence of the March 7th drug transaction was inadmissible under the rule which generally excludes evidence of other crimes or misconduct.

   As acknowledged by the majority opinion, this Court in Harris v. State, 324 Md. 490, 597 A.2d 956 (1991),[***28] reaffirmed that other crimes evidence "is generally not admissible . . . [unless] the evidence 1) has special relevance, i.e. [*99] is substantially relevant to some contested issue in the case and is not offered simply to prove criminal character, and 2) has probative value that substantially outweighs its potential for unfair prejudice . . . ." Harris v. State, supra, 324 Md. at 500, 597 A.2d at 961. Moreover, we "conclude[d] that continued adherence to the 'exclusionary' approach [to other crimes evidence] is appropriate," 324 Md. at 494-495, 597 A.2d at 959. Finally, we stated in Harris that "[t]he so-called exceptions [to the exclusionary rule] are helpful as classifications of those areas where evidence has most often been found admissible even though it discloses other bad conduct . . .," 324 Md. at 497-498, 597 A.2d at 960.

   The majority engages in the Harris two-step analysis first by asserting, without explanation, that the evidence has special relevance. It then conducts the requisite balancing and concludes that the evidence[***29] is admissible. The majority makes no attempt to demonstrate the special relevance by reference to any of the categories of [**932] exceptions to the general exclusionary rule developed by our previous cases.  See, e.g., State v. Werner, 302 Md. 550, 556-557, 489 A.2d 1119, 1122-1123 (1985); Ross v. State, 276 Md. 664, 669-670, 350 A.2d 680, 684 (1976).

   In fact, somewhat inconsistently, the majority agrees with the Court of Special Appeals that the evidence concerning the March 7, 1988, incident does not fall within the modus operandi subset of the identity exception to the other crimes rule (maj. at 87).  Yet no explanation is offered to demonstrate the special relevance of this evidence except that "Brown's explanation of how he conducted his ongoing business was probative of how he conducted the same business 2 1/2 weeks earlier during the sale here charged." (Maj. at 88).  This seems to be part of the reasoning underlying the identity or modus operandi exception to the rule precluding evidence of other crimes.  See State v. Faulkner, 314 Md. 630, 638-640, 552 A.2d 896, 899-901 (1989).[***30] Furthermore, the only "special relevance" asserted by the State at trial, in the Court of Special Appeals, and in [*100] this Court, was that the evidence fell within the identity exception.

   This Court in State v. Faulkner, supra, 314 Md. at 637-640, 552 A.2d at 899-900, discussed in detail the identity exception to the rule excluding other crimes evidence. The Court set forth ten subsets of the exception, one of which was "that a peculiar modus operandi used by the defendant on another occasion was used by the perpetrator of the crime on trial." 314 Md. at 638, 552 A.2d at 900. As the Court of Special Appeals pointed out, the modus operandi subset is the obvious one involved in the present case.  In fact, it is the statement by the defendant to Detective Young describing the defendant's method of doing business, i.e., his modus operandi, that furnishes a basis for the State's attempt to have the evidence concerning the March 7, 1988, drug transaction admitted under the identity exception to the other crimes exclusionary rule.

   The majority's rationale suggesting the admissibility[***31] of this other crimes evidence is unclear.  If the majority is saying that the modus operandi or identity exception to the rule precluding other crimes evidence can be demonstrated in several ways, such as by the evidence of the common pattern offered in State v. Faulkner, supra, or by a description of how the defendant usually conducts business similar to that offered in this case, I would not disagree in principle. n1 But, if the majority actually agrees [*101] with the Court of Special Appeals that this evidence does not fall within the modus operandi exception, I cannot comprehend how this evidence has special relevance. If the majority's opinion is taken literally, it is internally inconsistent as well as inconsistent with our prior cases involving the rule precluding other crimes evidence and the exceptions to that rule.  See Harris v. State, supra; State v. Faulkner, supra, 314 Md. 630, 552 A.2d 896; Ross v. State, supra, 276 Md. 664, 350 A.2d 680.

n1 I note that the evidence offered here falls short of the requirements of modus operandi.  The Faulkner opinion set forth the requirements for the modus operandi subset of the identity exception as follows (314 Md. at 638, 552 A.2d at 900, quoting McKnight v. State, 280 Md. 604, 613, 375 A.2d 551, 556 (1977), quoting C. McCormick, Evidence § 190, at 479 (2d ed. 1972):
"In order to establish modus operandi, the other crimes must be '"so nearly identical in method as to earmark them as the handiwork of the accused . . . . The device [used to commit the crime] must be so unusual and distinctive as to be like a signature."'"

   In Faulkner, the defendant had committed three armed robberies of Safeway stores, all on Friday nights, using a distinctive mask, gloves and bag each time, and jumping on the check-out stand each time, demanding large denomination bills.  The facts of the instant case, involving testimony of one other drug transaction and the defendant's statement that he does not deal with anybody new, can be distinguished from Faulkner.  The mere statement in this case concerning how the defendant does business is not sufficient to show a modus operandi within the meaning of Faulkner.  Despite the statement to Detective Young on March 7, 1988, about how the defendant does business, the defendant in fact dealt face to face with Detective Young on that day.  His actions seem to negate his admission about how he usually conducts his business.

[***32]

   [**933] For the foregoing reasons, I would simply affirm the judgment of the Court of Special Appeals. 

Carla SONGER v. STATE of Maryland 
No. 116, September Term, 1991
 
COURT OF APPEALS OF MARYLAND
 
327 Md. 42; 607 A.2d 557; 1992 Md. LEXIS 106
 
   June  11, 1992, Filed

   PRIOR HISTORY: [***1] Certiorari to Court of Special Appeals.  (Circuit Court for  Anne Arundel  County).  Robert H. Heller, Jr., JUDGE.

DISPOSITION: JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED AND CASE REMANDED TO THAT COURT WITH DIRECTIONS TO REMAND THE CASE TO THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY WITH INSTRUCTIONS TO VACATE JUDGMENT FOR RESTITUTION AGAINST PETITIONER.  COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID BY ANNE ARUNDEL COUNTY.

CORE TERMS:  restitution, probation, sentence, condition of probation, original sentence, order of restitution, sentencing, reimposed, payment of restitution, third-party, suspended, payor, order to pay, monetary, amount of restitution, governmental entity, pay restitution, prescribed, convicted, revoked, suspend, suspended sentence, writ of certiorari, money judgment, deems proper, probationer, recorded, indexed, order restitution, restitution order

COUNSEL: Victoria S. Lansburgh, Asst. Public Defender (Stephen E. Harris, Public Defender, both on brief), Baltimore, for petitioner.

   Kathryn Grill Graeff, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on brief), Baltimore, for respondent.

JUDGES: Murphy, C.J., and Eldridge, Rodowsky, McAuliffe, Chasanow, Karwacki and Robert M. Bell, JJ.

OPINIONBY: KARWACKI

OPINION: [*44]

   We issued a writ of certiorari in this case to address the question of whether a judgment representing the amount of restitution that a probationer had been ordered to pay as a condition of probation was properly entered against probationer following revocation of her probation.

   I.

   The petitioner, Carla Songer, was convicted in the Circuit Court for Anne Arundel County of welfare fraud, an offense punishable[***2] under Maryland Code (1957, 1982 Repl. Vol., 1983 Cum.Supp.), Article 27, § 230A. n1 She was sentenced on January 13, 1984 to imprisonment for one year with that term suspended in favor of probation for five years with special conditions, inter alia, that she pay restitution in the amount of $2,231.00 to the Department of Social Services n2 and that she pay the court costs incident to her prosecution.

n1 Unless otherwise indicated all further references to Article 27 of the Md.Code will be to this edition.

n2 At sentencing the trial court addressed Songer as follows:

   "COURT: The Court is going to sentence you to a period of one (1) year to the Commissioner of Correction.  I am going to suspend that sentence and place you on supervised probation for a period of five (5) years.  Now, the reason I make it five years, I want to give you enough time to pay back what you owe . . . . And, as a special condition, you are to make restitution to the Department of Social Services, that's from whom you got the money . . . .  In the amount of $2,231.00 as agreed with the probation supervisor.  Now, depending on what you make, you sit down and talk with him and tell him what you can afford to pay. And, if that's what he agrees, it has to be paid within that five years."

[***3]

   [*45]

   On May 2, 1984, a bench warrant was issued charging Songer with violation of her probation, in that she had failed to pay the court costs or to make any restitution payments.  On July 9, 1984, Songer was found guilty of violating her probation but her probation was continued.

   On January 18, 1988, Songer was again found guilty of violating her probation, because at that time Songer had paid only $20.00 n3 in restitution and had not paid any court costs.  With Songer's consent the court extended Songer's probation for five more years to enable her to pay the balance of the restitution and ordered her to pay $130.00 in court costs within 60 days. Songer paid the court costs on March 28, 1988.

n3 The $20.00 which Songer paid on June 17, 1986, had not reduced the amount of restitution ordered because a collection fee had been added to the amount due.  Songer's probation agent testified at the hearing on July 30, 1990, that the amount of restitution and accrued collection fees then due was $2,255.62.

 
   Songer[***4] was again charged with violation of her probation on April 11, 1990.  On July 30, 1990, Songer's probation was revoked for failure to pay the prescribed restitution, after her probation agent testified [**559] that Songer had made no payments since January 18, 1988.  The following orders were entered:

   "COURT: All right, Ms. Songer, the sentence of this Court is that the order of probation previously entered in this case is vacated.  And the sentence of this Court is that you shall be confined to the Anne Arundel County Detention Center on weekends beginning August 4th, 1990 for a period of nine months.  You shall report on August 4th, 1990 at 8:00 a.m. and you shall be incarcerated on consecutive weekends for a period of nine months, to be released on Monday mornings at 9 -- at 8:00 a.m. So [*46] it will be from Saturdays to Mondays from 8:00 a.m. to 8:00 a.m. for a period of nine months.

   "I enter judgment -- I order that a judgment be entered in favor of the Department of Social Services in the amount of two thousand two hundred and thirty-one dollars as a judgment against you.  I waive any other open court costs or other fees that are -- are due.  I waive any public defenders[***5] fees that are due or should be charged and I terminate the tip -- probation status in this case.  You'll just serve the period of incarceration."
 
Songer appealed the monetary judgment in the amount of $2,231.00, representing the balance of the amount of restitution that she had been ordered to pay as a condition of probation. The Court of Special Appeals affirmed.  Songer v. State, 88 Md.App. 221, 594 A.2d 621 (1991). We granted Songer's petition for writ of certiorari.

   II.

   An order to pay restitution is a form of punishment for criminal conduct. Spielman v. State, 298 Md. 602, 610, 471 A.2d 730, 734 (1984). See Coles v. State, 290 Md. 296, 307, 429 A.2d 1029, 1034 (1981). A sentencing court may order restitution in one of two ways -- either directly as part of the sentence or as a condition of probation. Md.Code, Art. 27, § 640(b) and (c). n4 See Smitley v. [*47] State, 61 Md.App. 477, 482, 487 A.2d 315, 317 (1985). Welfare fraud is a crime for which restitution as part of a sentence [***6] is clearly contemplated by Article 27, § 640(b)(i).  Furthermore, Article 27, § 230A expressly authorizes a court before whom a defendant is convicted of welfare fraud to order the defendant as part of the sentence to "make full restitution of the money, property, food stamps, medical care or other assistance unlawfully received, or the value thereof." Md.Code, Art. 27, § 230A(b).

n4 At the time of Songer's conviction, Article 27, § 640(b) provided:

   "(b) Restitution upon conviction of crime; priority of payment.  -- (1) On conviction of a crime, the court may order the defendant to make restitution in addition to any other penalty for the commission of the crime, if:

    "(i) Property of the victim was stolen, converted, unlawfully obtained, or its value substantially decreased as a direct result of the crime;

   "(ii) The victim suffered actual medical expenses, direct out-of-pocket losses, or loss of earnings as a direct result of the crime; or

   "(iii) The victim incurred medical expenses that were paid by the Department of Health and Mental Hygiene or any other governmental entity.

   "(2) The court may order that restitution be made to:

   "(i) The victim;

   "(ii) The Department of Health and Mental Hygiene or any other governmental entity; or

   "(iii) A third-party payor, including an insurer, which has made payment to the victim to compensate the victim for a property loss under paragraph (1)(i) of this subsection, or pecuniary loss under paragraph (1)(ii) of this subsection.

   "(3) If the victim has been fully compensated for the victim's loss by a third-party payor, the court may order restitution to the third-party payor. Otherwise, payment of restitution to the victim has priority over payment of restitution to the third-party payor.

   "(4) Payment of restitution to the victim under this subsection has priority over payment of restitution to the Department of Health and Mental Hygiene or other governmental entity.

   Article 27, § 640(c) provided:

   "(c) Sentence or condition of probation or parole.  -- When an order of restitution has been entered pursuant to subsection (b), compliance with the order may be made as a sentence or condition of probation or parole."

[***7]

   Alternatively, a defendant may be ordered to pay restitution as a condition of probation. The court in sentencing Songer had the authority to exercise this option [**560] pursuant to either § 640(c) n5 or § 641A n6 of Article 27. In 1977, the [*48] General Assembly amended Art. 27, § 640 in an attempt to broaden and confirm the sentencing court's power to order restitution. At the time of Songer's conviction, Art. 27, § 640(b) provided that upon conviction of certain crimes, "the court may order the defendant to make restitution in addition to any other penalty for the commission of the crime."

n5 See footnote 4, supra.

 n6 At the time of Songer's sentencing, Article 27, § 641A in pertinent part provided:

   "(a) Suspension of sentence; probation.  -- Upon entering a judgment of conviction, the court having jurisdiction may suspend the imposition or execution of sentence and place the defendant on probation upon such terms and conditions as the court deems proper. The court may impose a sentence for a specified period and provide that a lesser period be served in confinement, suspend the remainder of the sentence and grant probation for a period longer than the sentence but not in excess of 5 years.  However, if the defendant consents in writing, the court may grant probation in excess of 5 years, but only for purposes of making restitution."

[***8]

   While requiring Songer to pay restitution to the Department of Social Services, the trial court did not order Songer to make restitution as a part of the sentence, as it could have under § 230A or § 640(c) of Article 27.  See Montgomery v. State, 292 Md. 155, 159-61, 438 A.2d 490, 492-93 (1981). The unambiguous language employed by the trial judge in this case demonstrates that he ordered restitution as a condition of probation.

   The trial court's authority to revoke Songer's probation was delineated by Md.Code (1957, 1987 Repl.Vol.), Art. 27, § 642.  Pursuant to that statute, the court had the options to:
 
"proceed to sentence the person to serve the period of imprisonment prescribed in the original sentence or any portion thereof, or if no sentence was imposed, any sentence provided for by law for the crime for which that person was originally convicted. The sentence may be suspended in whole or in part and the offender may be placed on further probation on the terms and conditions the judge deems proper but no term of probation may exceed the maximum prescribed by § 641A of this article."
 
Donaldson v. State, 305 Md. 522, 528-29, 505 A.2d 527, 530-31 (1986).[***9] In the instant case the original sentence imposed on January 13, 1984, was imprisonment for one year.  Restitution was not part of that sentence but rather was made a condition of the probation which was imposed [*49] upon suspension of that sentence. Consequently, on revoking that probation the court was limited by Article 27, § 642 to imposing a term of imprisonment not to exceed one year.  It was without authority to enhance the sentence by rendering a monetary judgment against Songer.  When the original sentence or some portion of it is reimposed after revocation of probation the "original sentence is effective with the probationary provisions stricken out." Coleman v. State, 231 Md. 220, 222, 189 A.2d 616, 618 (1963). That is because the "original sentence is the only true punishment; the probation revocation is merely the withdrawal of favorable treatment previously accorded the defendant." Clipper v. State, 295 Md. 303, 313, 455 A.2d 973, 978 (1983), quoted in Turner v. State, 307 Md. 618, 625, 516 A.2d 579, 582 (1986).

   The State argues[***10] that the monetary judgment against Songer for restitution did not enhance the original sentence since on revoking probation the trial court only imposed a portion of the original sentence. It cites dicta from Smitley v. State, n7 supra, in support of that proposition.  [*50] [**561]We reject that notion.  Whether the original sentence or only a portion thereof is reimposed following revocation of probation, Article 27, § 642 does not authorize the enhancement of that reimposed sentence by a judgment for restitution which was not ordered as part of the original sentence.

n7 In Smitley, the defendant was convicted of disorderly conduct and battery. He was sentenced to concurrent terms of imprisonment for 60 days and two years, which sentences were suspended in favor of three years probation. One of the conditions to his probation was that he should pay restitution to the victim of the battery.  Later his probation was revoked, and the court reimposed the concurrent sentences of six months and two years.  In addition the court ordered him to pay the balance of the restitution originally ordered as a condition to his probation when those sentences were suspended. The Court of Special Appeals vacated the sentences and remanded the case for resentencing.  On remand the court suggested to the sentencing court that:
"It may even be possible, pursuant to § 642 of art. 27, for the court to direct execution of the suspended sentence, suspend anew a part of that sentence, place the defendant on further probation, and continue an order of restitution as a condition of the new probation. What the court may not do, however, when the restitution is not 'as a sentence' but only a condition of probation, is to direct execution of the full term of the suspended sentence and continue the restitution order, either 'as a sentence' or as a condition to some further probation. That is equivalent to increasing, not merely implementing, the suspended sentence."
61 Md.App. at 484, 487 A.2d at 318 (emphasis in original and footnote omitted).

   We need not pass on the validity of this dicta since in the instant case the probation revoking court did not exercise the option set forth in Article 27, § 642, which was alluded to by the Court of Special Appeals in the portion of its opinion just quoted.  "The [reimposed] sentence may be suspended in whole or in part and the offender may be placed on further probation on the terms and conditions the judge deems proper." Md.Code, Art. 27, § 642.

[***11]

   The Court of Special Appeals affirmed the monetary judgment against Songer, relying on Md.Code (1957, 1987 Repl.Vol., 1990 Cum.Supp.) Art. 27, § 640(g), (h) and (k), which provide in pertinent part:

   "(g) Orders requiring payment of money -- Nature, effect, etc. -- If an order of restitution requiring the payment of money is recorded and indexed in the civil judgment index under subsection (h) or subsection (i) of this section:

   "(1) The order of restitution shall constitute a money judgment in favor of the individual, governmental entity, or third-party payor to whom the defendant has been ordered to pay restitution; . . .

   "(h) Same -- Circuit court.  -- (1) An order of restitution that is issued by a circuit court under this section shall be recorded and indexed in the civil judgment index by the clerk of the circuit court as a money judgment as prescribed by the Maryland Rules . . . .

   "(k) Termination of order or probation.  -- (1) Subject to the Maryland Rules, unless complete restitution is paid by a defendant, termination of an order of restitution or probation by a court does not affect a money judgment that has been recorded and indexed under this section." n8
[***12] 

n8 Subsection (g) of § 640 was first added with the enactment of Chapter 487 of the Acts of 1989, which, in Section 2 of that act, provided that "this Act shall take effect July 1, 1989." Subsequently, the General Assembly rewrote subsection (g) and added subsections (h) through (l) with the enactment of Chapter 386 of the Acts of 1990.  Under Section 2 of that Act, Chapter 386 was to "take effect contingent on the taking effect of Chapter [385 of the Acts of 1990]." Chapter 385 reenacted subsection (g) as it first appeared in Chapter 487 of the Acts of 1989, and further provided, in Section 3 of Chapter 385, that "this Act shall apply to any Order of Restitution issued by a court on or after July 1, 1989."

   [*51]

   Songer argues that the language of § 640 relied upon by the Court of Special Appeals was not enacted until after the initial order to pay restitution was entered in the present case. n9 Thus, Songer concludes that the intermediate appellate court improperly upheld the trial court's action in reducing [***13]the restitution order to judgment after it revoked her probation. We agree.  Assuming, arguendo, that the intent of the General Assembly in enacting subsections (g) through (k) was to provide that an order to pay restitution, even if imposed solely as a condition of probation, is to continue as a judgment against the probationer after probation is revoked, the statute as amended cannot validate the order to pay restitution [**562] in this case.  By its express terms, ch. 385, § 3 of the Laws of 1990 provides that the amendments to § 640 are to apply only to restitution orders "issued by a court on or after July 1, 1989." The order to pay restitution in this case was issued by the trial court on January 13, 1984.  A statute is presumed to have prospective effect only, unless there is a clear legislative intent that the statute operate retroactively.  Spielman, 298 Md. at 607, 471 A.2d at 733. In the instant case [*52]that presumption is immaterial since the Legislature expressly provided that § 640 as amended does not affect any order of restitution issued before July 1, 1989.  Subsections (g) through (k) of § 640 cannot be invoked[***14] to salvage the legality of the judgment of restitution in this case, where the original order to pay was issued well before July 1, 1989. n10

 n9 The State acknowledges that the language of § 640 relied upon by the Court of Special Appeals was added by amendments in 1989 and 1990 and was not in effect in 1984, when the initial order of restitution in the present case was issued.  The Court of Special Appeals, subsequent to its decision in Songer, has declined to apply the provisions of § 640 to orders of restitution issued prior to the statutory amendments.  See Hunt v. State, No. 150, Sept. Term, 1991 (Court of Special Appeals, Dec. 6, 1991) (unreported) slip op. at 3-4; Musgrove v. State, No. 1930, Sept. Term, 1990 (Court of Special Appeals, Oct. 25, 1991) (unreported) slip op. at 1.  The State has filed a petition for writ of certiorari in Hunt, Petition Docket No. 568, Sept. Term, 1991.

n10 On May 12, 1992, the Governor signed into law an amendment to Md.Code, Art. 27, § 640, which for the first time defines "order of restitution." This amendment provides in pertinent part that: "'Order of restitution' means either a direct order for payment of restitution or an order for payment of restitution that is a condition of probation in an order of probation." Ch. 236 of the Acts of 1992.  We decline to comment on the amendment's impact on future restitution cases.

[***15]

   JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED AND CASE REMANDED TO THAT COURT WITH DIRECTIONS TO REMAND THE CASE TO THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY WITH INSTRUCTIONS TO VACATE JUDGMENT FOR RESTITUTION AGAINST PETITIONER. COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID BY ANNE ARUNDEL COUNTY. 

Robert George WILLIAMS v. STATE of Maryland 
No. 55, September Term, 1991
 
Court of Appeals of Maryland
 
326 Md. 367; 605 A.2d 103; 1992 Md. LEXIS 64

 April  27, 1992, Filed

   PRIOR HISTORY: [***1] Certiorari to Court of Special Appeals. (Circuit Court for  Anne Arundel  County). Bruce C. Williams, JUDGE

DISPOSITION: JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED; CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO VACATE THE JUDGMENTS AND TO REMAND THE CASE TO THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.  COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID BY ANNE ARUNDEL COUNTY.

CORE TERMS:  plea offer, mandatory sentence, plea agreement, sentence, advice, deficient performance, prejudiced, co-defendant, new trial, imprisonment, favorable, deficient, advise, maim, newly discovered evidence, adverse effect, reasonable probability, crime of violence, prior to trial, testifying, sentenced, convicted, mandatory, assault, prong, substantial possibility, enunciated, subjective, probable, vacated

COUNSEL: Michael R. Braudes, Asst. Public Defender (Stephen E. Harris, Public Defender, on brief), Baltimore, for petitioner.

   David P. Kennedy, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on brief), Baltimore, for respondent.

JUDGES: Murphy, C.J., Eldridge, Rodowsky, McAuliffe, Chasanow, Robert M. Bell, JJ., and Charles E. Orth, Jr., Judge of the Court of Appeals of MD (retired, specially assigned).  Murphy, C.J., and Chasanow, J., concur in the result only. 

OPINIONBY: BELL

OPINION: [*369] [**104] A single issue is presented in this case: whether, at his joint trial with Alton D. ("Pete") Grimes, Jr. in the Circuit Court for Anne Arundel County, at which both were convicted of kidnapping and related offenses, Robert George Williams, the petitioner, received adequate assistance[***2] of counsel.  A post conviction court held that he did not and ordered a new trial. The State's application for leave to appeal was granted by the Court of Special Appeals, which then remanded the case to the post conviction court with instructions to vacate the order granting a new trial. At [*370] the petitioner's request, we granted the petition for writ of certiorari to review the matter.  We shall reverse the judgment of the Court of Special Appeals.

   I.

   The petitioner and Grimes were tried by a jury, which, as indicated, convicted both of kidnapping and several other offenses. n1 Grimes was sentenced to 20 years imprisonment, with, however, the possibility of parole.  The petitioner, on the other hand, was sentenced, pursuant to Maryland Code (1957, 1992 Repl.Vol.), Art. 27, § 643B, n2 to a term of 25 years imprisonment, without the possibility of parole. n3 On [*371] direct appeal, [**105] the Court of Special Appeals affirmed the convictions in an unpublished opinion.

n1 Grimes was the petitioner's employer and, according to their counsel, the dominant personality.

n2 Section 643B(c) provides:
 
(c) Third conviction of crime of violence.  -- Any person who (1) has been convicted on two separate occasions of a crime of violence where the convictions do not arise from a single incident, and (2) has served at least one term of confinement in a correctional institution as a result of a conviction of a crime of violence, shall be sentenced, on being convicted a third time of a crime of violence, to imprisonment for the term allowed by law, but, in any event, not less than 25 years.  Neither the sentence nor any part of it may be suspended, and the person shall not be eligible for parole except in accordance with the provisions of Article 31B, section 11.  A separate occasion shall be considered one in which the second or succeeding offense is committed after there has been a charging document filed for the proceeding occasion.
 
Because subsection (d) requires the State to comply with the Maryland Rules concerning "the indictment and trial of a subsequent offender," the State was required to advise the petitioner, pursuant to Maryland Rule 4-245(c), that "the law prescribes a mandatory sentence because of a specified previous conviction . . . at least 15 days before sentencing . . . ." No issue is raised concerning the adequacy of notice.

[***3] 

n3 In addition to this sentence, which was imposed in respect to the kidnapping count, the petitioner was convicted of, and sentenced for conspiracy to kidnap, false imprisonment, conspiracy to falsely imprison, extortion, conspiracy to extort, assault and battery, and use of a handgun in the commission of a crime of violence.  Those sentences, which ranged from five to seven years, were ordered to run concurrently with the sentence for kidnapping. The court granted motions for judgments of acquittal as to assault with intent to maim, at the end of the State's case, and as to assault and use of a handgun in the commission of a felony, at the end of the entire case.

   Pursuant to the Maryland Post Conviction Procedure Act, Art. 27, §§ 645A-645J and Maryland Rules 4-401-408, the petitioner filed a petition for post conviction relief, in which he alleged that he "was denied the effective assistance of counsel at trial in that his attorney . . . failed to adequately and competently represent him." One of the bases offered in support of that allegation was the failure of the petitioner's counsel, who was[***4] also Grimes's counsel, to advise him, before the trial, that he could receive a mandatory 25 year sentence. The prejudice accruing to him, he argued, was his inability to take advantage of a plea agreement providing a more favorable disposition than the sentence he ultimately received. n4

n4 The petitioner's arguments at the post conviction proceeding, as in the Court of Special Appeals, were broad based.  He also argued that a conflict of interest caused his counsel to render greater assistance to his co-defendant, who retained and paid him, than to him.  Another ground offered by the petitioner was the seating arrangement at the trial.  Because he was seated next to his co-defendant, who, in turn, was seated next to counsel, the petitioner maintained that his ability to communicate with counsel was inhibited.  The petitioner also asserted that counsel failed to discuss the case with him face-to-face and separate from his co-defendant, to follow through on his request that the trial be severed and to be available to discuss the petitioner's defense, all further demonstrating the inadequacy of his representation.  We find none of these contentions to be meritorious.

[***5]

   The petitioner's trial attorney testified at the post conviction hearing that just before the start of trial the State "agreed to accept a plea to assault with intent to maim, which carried a ten year maximum penalty." n5 The petitioner, without challenge by the State and consistent with the [*372] trial court's finding, characterizes the plea as contemplating "a sentence with a 10 year cap." Contrary to the petitioner's recollection (he had previously testified that no plea offer was communicated to him at any time prior to, or even after, the start of the trial), counsel testified that the offer was discussed with both defendants, one of whom, Grimes, adamantly refused it, and the other, the petitioner, "indicated that he wanted to do what Mr. Grimes would."

n5 The maximum penalty for committing an assault with intent to maim is currently 15 years imprisonment. Maryland Code (1957, 1992 Repl.Vol.), Art. 27, § 386; see 1991 Md.Laws 234, § 1.  When the plea offer was made, however, the maximum penalty was ten years imprisonment, see Maryland Code (1957, 1982 Repl.Vol.), and that is controlling here.

[***6]

   The notice of intention to seek mandatory sentence was filed by the State subsequent to the petitioner's conviction.  Consequently, the petitioner's trial counsel did not know when he tried the case that the State intended to seek an Art. 27, § 643B mandatory sentence. On the other hand, counsel was so familiar with the petitioner's criminal background that on that basis, he advised the petitioner not to testify at trial.  Armed with that information, he should have anticipated the possibility that the State would seek a mandatory 25 year sentence. Counsel candidly testified, however, that, prior to trial or conviction, he neither discussed with petitioner the possibility that he could receive a mandatory sentence, nor did he know that petitioner was eligible to receive one.

   The record does not reflect that the State's plea offer was conditioned on its being accepted by both defendants.  On the other hand, it is clear that the offer was made to both defendants.

   The post conviction court filed a memorandum opinion and order, in which it made clear that failure to inform the petitioner of the possible mandatory sentence of 25 years without parole "shows ineffective assistance of trial [***7]counsel." The court, however, did not delineate very clearly how that prejudiced the petitioner.  The court did mention several factors: the State agreed to a plea offer with a ten year cap which was communicated to the petitioner; no advice was given concerning the potential mandatory sentence which, in addition to providing context for the plea offer, would have provided the petitioner with information with which realistically to assess his exposure; and, upon [*373] being told of the effect of testifying in light of his criminal [**106] record, the petitioner followed counsel's advice and refrained from testifying at trial.

   Reversing the circuit court, the Court of Special Appeals held that the petitioner was not prejudiced by counsel's deficient performance. As the court saw it:
 
[F]or Williams to be entitled to relief on that basis, it must be shown that the State would have been willing to offer Williams a separate plea bargain.  No such showing was made in this case, and in the absence of some showing that a plea bargain would have been available, if requested, counsel's failure to explain to Williams the possible sentencing consequences did not prejudice Williams. [***8] The prejudice prong of the Strickland test not having been met, no basis exists to rule that counsel was ineffective because he failed to inform Williams that he faced a mandatory 25 year sentence without parole.

   II.

   The test to be used in assessing the adequacy of counsel's performance in representing a defendant was enunciated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To establish a claim of ineffective assistance of counsel, a defendant must prove both:
 
 "(1) counsel's performance was deficient; and
 
(2) the deficient performance prejudiced the defense."
 
Bowers v. State, 320 Md. 416, 424, 578 A.2d 734, 738 (1990) (emphasis in original).  The Strickland test was explicated in Harris v. State, 303 Md. 685, 496 A.2d 1074 (1985) and, more recently, in Bowers v. State, supra. Because the burden of proof is on the defendant to establish ineffective assistance of counsel, Bowers, 320 Md. at 424, 578 A.2d at 738,[***9] as to the first prong, a defendant must prove, that, under prevailing professional norms, his counsel's representation, objectively speaking, fell below a standard of reasonableness.  Strickland v. Washington, 466 U.S. at 688, 104 [*374] S.Ct. at 2064, 80 L.Ed.2d at 693; Bowers, 320 Md. at 424, 578 A.2d at 738; see also Harris, 303 Md. at 698-99, 496 A.2d at 1080-81.

   Because this is not a case in which prejudice may be presumed, see Bowers, 320 Md. at 425, 578 A.2d at 738, the second prong requires the defendant affirmatively to prove prejudice.  Thus, the defendant must prove that "the particular and unreasonable errors of counsel 'actually had an adverse effect on the defense.'" Bowers, 320 Md. at 425, 578 A.2d at 738, quoting Strickland, 466 U.S. at 693, 104 S.Ct. at 2067, 80 L.Ed.2d at 697.

   We recently conducted an analysis of the "tests for determining whether counsel's representation[***10] is so defective that it is constitutionally ineffective." Bowers, 320 Md. at 423, 423-27, 578 A.2d at 737, 737-39. We began by acknowledging that "[t]he right to counsel plays a crucial role in the adversarial system embodied in the Sixth Amendment, since access to counsel's skill and knowledge is necessary to accord defendants the 'ample opportunity to meet the case of the prosecution' to which they are entitled." 320 Md. at 424, 578 A.2d at 737-38, quoting Strickland, 466 U.S. at 685, 104 S.Ct. at 2063, 80 L.Ed.2d at 692 (quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 275, 276, 63 S.Ct. 236, 240, 87 L.Ed. 268, 273 (1942)). We then reasoned:

   To show that an error of counsel "actually had an adverse effect on the defense" may seem to be an almost impossibly high requirement.  But surely the Supreme Court did not intend a Strickland analysis to be a total barrier to relief in ineffective assistance cases.  See Sullivan v. Fairman, 819 F.2d 1382 (7th Cir.1987).[***11] And indeed, the Strickland Court's further discussion of the performance standard indicates the "actually had an adverse effect" language is not to be read literally.

   After stating the "actually had an adverse effect" criterion, the Court went on to explain that it would not be sufficient for the defendant to show merely "that the errors had some conceivable effect on the outcome of the [*375] proceedings." 466 U.S. at 693, [**107] 104 S.Ct. at 2067, 80 L.Ed.2d at 697. After all, virtually any error could have some conceivable effect on the outcome.  But "[o]n the other hand, we believe that a defendant need not show that counsel's deficient conduct more likely than not altered the outcome in the case." Id., [at 693,] 104 S.Ct. at 2068, 80 L.Ed.2d at 697. In other words, the prejudicial effect of counsel's deficient performance need not meet a preponderance of the evidence standard.  The Court at one point indicated that the test is whether the trial can be relied on "as having produced a just result." Id. at 686, 104 S.Ct. at 2064, 80 L.Ed.2d at 692-693.[***12]

    In explicating the standard it adopted as the appropriate measure of prejudice, the Court rejected the "high standard for newly discovered evidence claims." Id. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 697. We ourselves have recently had occasion to consider the proper standard to use in cases of newly discovered evidence, and we came to a conclusion much like the one the Supreme Court reached in Strickland.

   In Yorke v. State, 315 Md. 578, 556 A.2d 230 (1989), we had to decide what degree of impact on the outcome of a trial would justify the granting of a new trial on the ground of material newly discovered evidence. Judge Orth, for the Court, explained that other jurisdictions "apply essentially the 'might' standard or the 'probable' standard," both of which he described as "rather nebulous." 315 Md. at 586, 556 A.2d at 233. After careful review of the various possibilities, we chose "a standard that falls between 'probable,' which is less demanding than 'beyond a reasonable doubt,' and 'might' which is less stringent than probable." [***13] Id. at 588, 556 A.2d at 234-35. We thought a workable standard was:
 
The newly discovered evidence may well have produced a different result, that is, there was a substantial or significant possibility that the verdict of the trier of fact would have been affected.
 
Id., 556 A.2d at 235.
 
[*376] Bowers, 320 Md. at 425-26, 578 A.2d at 738-39 (emphasis in original). We concluded that "substantial possibility," as defined in Yorke, "aptly describes the prejudice standard the Supreme Court adopted in Strickland." Bowers, 320 Md. at 427, 578 A.2d at 739. We have not retreated from the use of that standard and, so, we apply it here.

   III.

   It is not disputed that trial counsel never advised the petitioner that he faced a possible mandatory sentence. Nor does the State contend that trial counsel's omission was reasonable.  Thus, rather than focus on the performance prong, the State maintains that the petitioner failed to prove that his counsel's deficient performance prejudiced him.  It[***14] argues that, because the test is a subjective one, to show prejudice, the petitioner had to show that he would have accepted the plea agreement that the State offered at the trial table just prior to trial. See Hill v. Lockhart, 877 F.2d 698, 703 n. 11, vacated, 883 F.2d 53, panel opinion adopted en banc, 894 F.2d 1009 (8th Cir.1989), cert. denied,    U.S.   , 110 S.Ct. 3258, 111 L.Ed.2d 767 (1990). That burden has not been met, it asserts, by an "unsupported and self-serving claim that he would have taken a plea," which is all the evidence that the petitioner produced.

   Alternatively, the State contends that post conviction relief was correctly refused because the petitioner did not prove that the plea offer was available to him alone, rather than only jointly with his co-defendant. Without that proof, the State says, the petitioner simply was not prejudiced. It argues, in that regard, that the prosecution was prepared for trial, its witnesses being present and ready to testify, the case against the petitioner was "overwhelming," and, because[***15] the same evidence was admissible against both defendants, the same case would have had to have been presented even had one pled guilty, there was no incentive for a separate plea agreement.

   [*377] IV.

   Trial counsel's testimony regarding the plea offer made just prior to trial did [**108] not specify whether, and if so, how, that plea offer was limited.  He testified that the offer was made to both defendants.  The State made no attempt to refute the inference that the plea offer was available to either defendant or, when the burden of production shifted to it, to produce evidence that the offer was only available to the defendants as a unit. Contrary to the State's position, there was a sufficient demonstration that there was a plea offer which the petitioner could accept, whether or not his co-defendant did.  When a plea offer containing no express limitation is made in a case involving more than one defendant, it may be assumed that the offer may be accepted by either defendant, without regard to what the other might do. n6 Indeed, the finding that the offer was available to the petitioner alone is implicit in the post conviction court's decision.

n6 The court in Turner v. State of Tennessee, 858 F.2d 1201 (6th Cir.1988), vacated on other grounds, 492 U.S. 902, 109 S.Ct. 3208, 106 L.Ed.2d 559 (1989) rejected a similar challenge by the State of Tennessee.  The State argued that, because Turner failed to establish that the court would have approved the plea offer in that case, he did not meet his burden of proving prejudice.  The court disagreed, holding that it was "unfair and unwise to require litigants to speculate as to how a particular judge would have acted under particular circumstance." Id. at 1207 (footnote omitted).  It went on to observe:
 
We find it much more significant that the State can point to no evidence that indicates that the state trial court would not have approved the two-year plea arrangement.  We believe that, if the State wishes to suggest that the trial court would not have approved the plea arrangement, the State, and not Turner, bears the burden of persuasion.
 
Id. Berger v. Kemp, 483 U.S. 776, 107 S.Ct. 3114, 97 L.Ed.2d 638 (1987) and Smith v. Regan, 583 F.2d 72 (2nd Cir.1978), relied on by the State, are inapposite.  In Kemp, no plea offer was made and the evidence was that this was so despite counsel's efforts to obtain one.  483 U.S. at 786, 107 S.Ct. at 3121, 97 L.Ed.2d at 652. In Regan, the only plea offered the co-defendants was a "'package' or 'both or nothing' deal," 583 F.2d at 76, which both defendants rejected.  The court noted that, given the strength of its case, "there was no reason for the State, once it was required to try its case against one defendant not to go to trial against both." Id.

[***16]

   [*378] A trial attorney performs deficiently when he or she does not disclose to the client that the State has made a plea offer. U.S. v. Rodriguez, 929 F.2d 747, 752 (1st Cir.1991); Johnson v. Duckworth, 793 F.2d 898, 902 (7th Cir.), cert. denied, 479 U.S. 937, 107 S.Ct. 416, 93 L.Ed.2d 367 (1986); Caruso v. Zelinsky, 689 F.2d 435, 438 (3rd Cir.1982); Barentine v. U.S., 728 F.Supp. 1241, 1251 (W.D.N.C.1990); Williams v. Arn, 654 F.Supp. 226, 235-36 (N.D.Ohio 1986); Rasmussen v. State, 280 Ark. 472, 658 S.W.2d 867, 868 (1983); Lloyd v. State, 258 Ga. 645, 373 S.E.2d 1, 3 (1988); Lyles v. State, 178 Ind.App. 398, 382 N.E.2d 991, 994 (1978); State v. Simmons, 65 N.C.App. 294, 309 S.E.2d 493, 497 (1983); Ex parte Wilson, 724 S.W.2d 72, 74 (Tx.Cr.App.1987). [***17] So, too, does a trial attorney who, while disclosing the plea offer, provides the defendant with incomplete or misleading information with regard to the offer. See Turner v. State of Tennessee, 858 F.2d 1201, 1205 (6th Cir.1988), vacated on other grounds, 492 U.S. 902, 109 S.Ct. 3208, 106 L.Ed.2d 559 (1989) (erroneous advice to defendant to reject plea offer); Beckham v. Wainwright, 639 F.2d 262, 265-66 (5th Cir.1981) (counsel's failure to be aware of, and advise client as to, the consequences of withdrawing a guilty plea and proceeding to trial); Lewandowski v. Makel, 754 F.Supp. 1142, 1147 (W.D.Mich.1990) ("[C]ounsel's failure to inform client of significant aspects of the law regarding the risk of an appeal . . . ."); People v. Pollard, 231 Cal.App.3d 823, 282 Cal.Rptr. 588, 594, cert. granted, 286 Cal.Rptr. 778, 818 P.2d 61 (1991) (when counsel fails "to advise or has misstated some aspect of the law important to the intelligent evaluation[***18] of the [plea] offer, deficient representation has been demonstrated."); Commonwealth of Pennsylvania v. Napper, 254 Pa.Super. 54, 385 A.2d 521, 524 (1978) (counsel's failure "to make clear . . . 'the risk, hazards or prospects of the case.'"); State v. James, 48 Wash.App. 353, 739 P.2d 1161, 1167 (1987) (to effectively assist client, counsel must aid client in making an informed decision to accept or reject plea offer by discussing with client the strengths and weaknesses of client's case); Tucker v. Holland, 174 W.Va. 409, 327 S.E.2d 388, 394 (1985) [**109] (counsel's [*379] advice must be accurate to enable client to make an informed choice whether to accept plea); State v. Ludwig, 124 Wis.2d 600, 369 N.W.2d 722, 726 (1985) (effective assistance of counsel includes informing "the defendant of the legal options and ramifications of those options . . . .").

   Acceptance of a plea offer that would expose him to a maximum sentence of ten years was an option available to petitioner, and the failure of[***19] his attorney to advise the petitioner of his exposure of the imposition of a mandatory 25 year sentence was deficient conduct.  Where there is no plea agreement providing more favorable terms than the mandatory sentence to which the client may have been subjected, that failure, while indicative of counsel's deficient performance, may not be prejudicial.  It is the existence of a plea agreement with more favorable terms than those required by imposition of a mandatory sentence that renders the omission potentially prejudicial.  Whether prejudice actually occurs requires consideration of the proof offered by the client regarding what would have been done with proper and adequate advice.

   Unlike the State, the petitioner does not believe that in order to prevail, it is necessary that the record contain "objective" evidence that he was prejudiced, that is, that he would have accepted the plea agreement offered by the State.  He endorses the position enunciated in People v. Pollard, supra, 282 Cal.Rptr. at 594,: "[t]he defendant must show that but for the failure to convey the offer or to misadvise concerning the law, it is reasonably probable [***20]that the defendant would have accepted the offer." On the other hand, it is enough, the petitioner asserts, that "counsel's failure to inform the petitioner of the consequences of going to trial precluded him from making a knowing and intelligent decision to accept the offer." In other words, it is his inability to make an informed choice that is the critical fact, not whether, on an objective basis, he would have reached a different conclusion.  In either case, the petitioner maintains that we need not look for "objective" evidence of his intention.  All that is required is that the totality of [*380] the evidence supports an inference that the outcome "may well" have been different had he been fully and accurately informed.

   There are cases that eschew "subjective, self-serving" statements by a defendant, instead looking for, and relying on, objective evidence that the defendant would have acted differently upon being apprised adequately of the situation.  E.g. Turner, supra, 858 F.2d at 1206-07; Lewandowski, supra, 754 F.Supp. at 1147. n7 Other courts have refused to characterize the evidence required to show prejudice[***21] as either "subjective" or "objective" and have looked to the "facts of each case" to see if "there is at least an inference from the evidence" that such prejudice exists.  E.g., Lloyd, supra, 373 S.E.2d at 3. n8 See also Hanzelka [**110] v. State, 682 S.W.2d 385, 387 [*381] (Tex.App.1984); People v. Whitfield, 40 Ill.2d 308, 239 N.E.2d 850, 852 (1968); Curl v. State, 272 Ind. 605, 400 N.E.2d 775, 777 (1980); Lyles, supra, 382 N.E.2d at 994; Simmons, supra, 309 S.E.2d at 498. Lloyd characterizes those cases as simply presuming prejudice from the fact that acceptance of a plea offer available to the defendant would have resulted in more favorable treatment than he or she actually received.  These cases may be viewed, and we so view them, as focusing on an important fact from which the inference could be drawn that the defendant with more, or better, information, would have acted differently.  In any case, the attempt[***22] is to determine whether, but for the deficient performance by counsel, there is a substantial possibility that the defendant would have accepted the plea agreement.

n7 In Johnson v. Duckworth, 793 F.2d 898, 902 n. 3 (7th Cir.), cert. denied, 479 U.S. 937, 107 S.Ct. 416, 93 L.Ed.2d 367 (1986), in dicta, the court indicated that it would apply an objective standard when the issue of prejudice resulting from a deficient performance by counsel is before it:
 
Johnson does not argue or allege in his brief, however, "that there is a reasonable probability that, but for counsel's error," he would have accepted the plea agreement . . . .  Although he argues that he would have been able to accept the agreement but for Carmouche's actions, his freedom to act does not establish a reasonable probability that he would have acted.  It is true that, for the first time in his reply brief, Johnson does cite his testimony from the post-conviction challenge to his attorney's actions which he claims illustrates his desire to plead guilty in conjunction with accepting the plea agreement. Nonetheless, Johnson cites no evidence prior to his conviction which would indicate any desire on his part to plead guilty to a lesser charge.  Under these circumstances, we seriously doubt whether Johnson's after-the-fact testimony regarding his wishes in and of itself would be sufficient to establish that prior to trial, but for Carmouche's actions, there was a reasonable probability he would have accepted the plea agreement. (citations omitted)
[***23] 

n8 Upon a review of the entire record, the court, in Lloyd v. State, 258 Ga. 645, 373 S.E.2d 1, 3 (1988), concluded that no inference could be drawn that the defendant in that case would have accepted the offer, or any counter offer, that was made.  It is significant that in that case, trial counsel, who did not communicate the offer to the defendant "implied that had he communicated the offer to Lloyd, he would have recommended against it [and e]ven the trial judge commented that had he been on the jury, he would have voted to acquit." 373 S.E.2d at 2 n. 3.

   In Turner, the "objective" evidence found sufficient was the defendant's response to a two year plea offer by proposing a one year counter offer and the lower court's finding that the defendant was under the control of his attorney, who, with only a slight change in his advice, could have ensured a plea.  858 F.2d at 1206. In Lewandowski, when previously clearly advised as to the consequences of going to trial, the defendant[***24] had pled guilty.  The court viewed that fact as objective evidence that, "with competent legal counsel and advice, it is reasonable to believe that when faced with the real possibility of going to trial on first degree murder, petitioner would have changed his mind and withdrawn his appeal to vacate his plea." 754 F.Supp. at 1150.

   In the case sub judice, the plea offer is certainly more favorable than the sentence the petitioner actually received.  Furthermore, the record reflects that, when previously fully and accurately advised, in light of his criminal history, of the consequences of testifying, the petitioner following counsel's advice, elected not to testify.  And the [*382] petitioner has, after the fact, indicated that had he been told of the possible mandatory sentence, he would have accepted the plea.  Upon our independent constitutional appraisal of this record, Harris, 303 Md. at 697-98, 496 A.2d at 1080, it may be inferred that, had he been as clearly and fully advised concerning the potential mandatory sentence as he was concerning the consequences of testifying, the petitioner "may well" [***25] have opted to accept the plea agreement, i.e., there is at least a "substantial possibility" that the outcome would have been different.  The inference is supported by "objective" evidence -- the petitioner's prior acceptance of his counsel's advice to remain silent.  See Turner and Lewandowski, both supra.  Accordingly, the evidence of prejudice in this case is ample.

   The Court of Special Appeals erred in finding that the petitioner was not prejudiced by the failure of his counsel to inform him of the possible mandatory sentence.

   V.

   Although the petitioner requested a new trial and the post conviction court ordered one, it is significant that the only incompetence of counsel we have determined to exist pertains to the deprivation of the petitioner's opportunity to have accepted a plea agreement more favorable than the mandatory sentence that he faced.  This raises the question of the appropriate remedy for that incompetence.  In United States v. Morrison, 449 U.S. 361, 364, 101 S.Ct. 665, 668, 66 L.Ed.2d 564, 568 (1981), the Supreme Court pointed out that relief from a violation of the Sixth Amendment right [***26] to the effective assistance of counsel should be tailored to fit the circumstances of the case.  A new trial is not the appropriate remedy since the violation did not impact the fairness of the trial.  Turner, 858 F.2d at 1208. Had counsel performed competently in this case, advising the petitioner of the mandatory sentence he faced, the most the petitioner could have done would have been to accept the plea offer. Giving him that opportunity now will place him in the same position he would have [**111]been in but for the [*383] incompetence of his counsel. Accordingly, we will direct that the case be remanded to the Circuit Court for Anne Arundel County so that the petitioner may enter a plea of guilty pursuant to the plea offer. n9 Upon acceptance of a plea of guilty to the charge of assault with intent to maim, the trial judge should proceed to impose sentence. In the unlikely event petitioner declines to enter a plea of guilty within 30 days after the issuance of our mandate, the trial judge shall reinstate the original convictions and sentence.

n9 Because the trial judge granted the petitioner's motion for judgment of acquittal on the charge of assault with intent to maim, in order to avail himself of the plea offer, the petitioner must consent to the vacation of that judgment.

[***27]

   JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED; CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO VACATE THE JUDGMENTS AND TO REMAND THE CASE TO THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.  COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID BY ANNE ARUNDEL COUNTY.

CONCURBY: MURPHY; CHASANOW

CONCUR: MURPHY, C.J., and CHASANOW, J., concur in the result only.

   They believe that the test enunciated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) is that there must be a "reasonable probability" that counsel's deficient conduct affected the result. 

In re CRIMINAL INVESTIGATION NO. 1/242Q 
No. 72, September Term, 1991
 
Court of Appeals of Maryland
 
326 Md. 1; 602 A.2d 1220; 1992 Md. LEXIS 46

 March  13, 1992, Filed

   SUBSEQUENT HISTORY: [***1] As Corrected March 19, 1992.

PRIOR HISTORY: Appeal from the Circuit Court for  Anne Arundel  County pursuant to certiorari to Court of Special Appeals. Bruce C. Williams, JUDGE

DISPOSITION: JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY REVERSED. CASE REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.  COSTS TO BE PAID BY THE APPELLEE.

CORE TERMS:  attorney-client, disclosure, subpoena, legal advice, confidential, narcotics, confidentiality, subpoenaed, Sixth Amendment, tax investigation, fee arrangement, income tax, suspected, disclose, expenditure, privileged, fees paid, compulsion of law, general rule, articulated, confidence, prosecutors, confidential communication, requiring disclosure, footnotes omitted, actual conflict, incriminating, indictment, dealer, spent

COUNSEL: Karen J. Kruger, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., both on brief), Baltimore, for appellant.

   William B. Moffitt (M. Christina Gutierrez, Moffitt, Zwerling & Kemler, P.C., all on brief), Alexandria, Virginia, for appellee.

JUDGES: Murphy, C.J., and Eldridge, Rodowsky, McAuliffe, Chasanow, Karwacki and Robert M. Bell, JJ.  Robert M. Bell, Judge, dissenting.

OPINIONBY: CHASANOW

OPINION: [*3] [**1221] In 1990, the Office of the Attorney General of Maryland began an investigation of known or suspected narcotics traffickers for violations of the state income tax laws.  To establish the income of these individuals investigators use the "net worth" method of accounting whereby the State seeks to prove unreported income by documenting large expenditures of money.  One such expenditure is for attorney's fees.

   Criminal Investigation No. 1/242Q focused on R.A. and[***2] D.B. n1 In an effort to establish net worth and uncover assets purchased with suspected narcotics profits, the Grand Jury for Anne Arundel County issued a number of subpoenas duces tecum for records of expenditures of money by R.A. and D.B.  One of these was directed to William H. Murphy, Jr.  Mr. Murphy is an attorney who had represented R.A. when he pled guilty to a narcotics charge and had at the same time represented D.B. in a related forfeiture proceeding; he does not currently represent R.A. or D.B.  The subpoena ordered Mr. Murphy to produce all of his records reflecting payment for legal services rendered to R.A. and D.B. Mr. Murphy filed a motion to quash the subpoena claiming that the information was confidential and privileged. The motion to quash was granted by Judge [*4]Bruce C. Williams of the Circuit Court for Anne Arundel County.  Judge Williams recognized that generally the attorney-client privilege does not protect fee information, but he determined that the subpoena should be quashed because the Maryland Rules of Professional Conduct have "enlarged the general principle of confidentiality." The State, on behalf of the Grand Jury, filed an appeal, and this [***3] Court granted certiorari prior to the case being heard by the Court of Special Appeals.

n1 The identities of the targets of the investigation are withheld pursuant to Maryland Rule 8-123(c).

   The lower court relied on Rule 1.6 of the Model Rules of Professional Conduct. n2 These Rules were adopted by the House of Delegates of the American Bar Association on August 2, 1983, and with some modifications, by this Court of Appeals on January 1, 1987.  The Rules provide ethical guidelines for lawyers. We do not agree with the trial judge that the Rules were intended to expand the attorney-client privilege.  In fact under the heading "Scope," the prefatory material to the Rules explicitly states: "Moreover, these Rules are not intended to govern or affect judicial application of either the attorney-client or work product privilege." Id. at 489 (emphasis added).

n2 Rule 1.6 provides:
 
"(a) A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraph (b).
 
(b) A lawyer may reveal such information to the extent the lawyer reasonably believes necessary:

   (1) to prevent the client from committing a criminal or fraudulent act that the lawyer believes is likely to result in death or substantial bodily harm or in substantial injury to the financial interests or property of another;

   (2) to rectify the consequences of a client's criminal or fraudulent act in the furtherance of which the lawyer's services were used;
 
   (3) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, or to establish a defense to a criminal charge, civil claim, or disciplinary complaint against the lawyer based upon conduct in which the client was involved or to respond to allegations in any proceedings concerning the lawyer's representation of the client.

   (4) to comply with these Rules, a court order or other law."

[***4]

   [*5] The Comment to Rule 1.6 explains the relationship between the "rule of confidentiality" and the attorney-client privilege.
 
"The attorney-client privilege applies in judicial and other proceedings in which a lawyer may be called as a witness or otherwise required to produce evidence [**1222] concerning a client.  The rule of client-lawyer confidentiality applies in situations other than those where evidence is sought from the lawyer through compulsion of law." (Emphasis added).
 
Id. at 500.  Thus, the rule of confidentiality is broader than the attorney-client privilege.  Rule 1.6 applies to confidential communications between a client and an attorney in all situations except where the "evidence is sought from the lawyer through compulsion of law." In the latter situation, only the attorney-client privilege, not the broader rule of confidentiality, protects against disclosure. See Geoffrey C. Hazard, An Historical Perspective on the Attorney-Client Privilege, 66 Cal.L.Rev. 1061 (1978). The Comment to Rule 1.6 further defines the obligations of an attorney when evidence is sought from the lawyer through compulsion of [***5] law.
 
"The attorney-client privilege is differently defined in various jurisdictions. If a lawyer is called as a witness to give testimony concerning a client, absent waiver by the client, Rule 1.6(a) requires the lawyer to invoke the privilege when it is applicable." (Emphasis added).
 
Id. at 502.  The Comment to Rule 1.6 states "[i]n addition to these provisions, a lawyer may be obligated or permitted by other provisions of the law to give information about a client." Id. (Emphasis added).  Finally, it is perhaps noteworthy that the rule of confidentiality has many exceptions; for example, attorneys are permitted to breach confidentiality by filing suit and testifying in order to collect unpaid fees.  Rule 1.6(b)(3).  For the reasons indicated, disclosure in the instant case is governed by the attorney-client privilege n3 [*6]rather than the Rules of Professional Conduct.

n3 The attorney-client privilege is a common law privilege now set forth in Maryland Code (1974, 1989 Repl.Vol.), Courts & Judicial Proceedings Article, § 9-108.

[***6]
 
   Murphy alleges in his motion to quash the subpoena duces tecum that "[i]t was explicitly agreed and understood" between the clients and him that all information about fees "would be personal, privileged, and confidential because of, among other things, the growing practice of prosecutors nationwide to use such information to establish violations of the narcotics laws, financial reporting laws, money laundering laws, and income tax laws . . . ." It is reasonable to assume that some clients would want the fee arrangement with their attorney to be kept confidential; therefore, a fee arrangement should not be freely disclosed by an attorney.  But whether a fee arrangement is protected from disclosure in "judicial proceedings" is a different matter, which is governed by the attorney-client privilege and not by the Rules of Professional Conduct.  The subjective intent or wishes of the parties cannot create a privilege where none exists.  Even though the clients wish the fee information to be kept confidential, this is but a threshold requirement, and we still must determine whether it is privileged. Our inquiry, therefore, is not whether the broader rules of confidentiality protect the[***7] fee information sought in the instant case, but whether the narrower attorney-client privilege protects the information.

   We must first note that we are dealing here with a request to disclose the amount of the fee paid by specified clients.  We are not dealing with the situation where the lawyer is asked to disclose the names of, and/or the amounts paid by, all clients who paid fees in a particular manner (e.g., by cash) or who paid fees in excess of a specified amount. n4

n4 See, e.g., 26 U.S.C. § 6050I (1988) which requires that lawyers, as well as other trades, businesses, professions, etc., disclose the names of everyone who paid "cash" fees in excess of $10,000.

   [*7] The overwhelming weight of authority holds that the attorney-client privilege is generally not violated by requiring disclosure of the payment of attorney's fees and expenses.  "Fee arrangements usually fall outside the scope of the privilege simply because such information ordinarily reveals no confidential professional[***8] communication between attorney and client, and not because such information may not be incriminating." In re Osterhoudt, 722 F.2d 591, 593 (9th Cir.1983). [**1223] See also In re Grand Jury Matter, 926 F.2d 348 (4th Cir.1991); In re Grand Jury Proceedings 88-9 (MIA), 899 F.2d 1039 (11th Cir.1990); In re Grand Jury Subpoena Served Upon Doe, 781 F.2d 238 (2d Cir.1985), cert. denied, 475 U.S. 1108, 106 S.Ct. 1515, 89 L.Ed.2d 914 (1986).

   There are good reasons why fee arrangements should not generally be protected by the attorney-client privilege.  Payment of a fee is a normal and expected incident of the relationship, and when a fee is negotiated, the attorney and client are to some extent involved in an arm's-length commercial transaction. For the most part, fee arrangements are collateral to, not an integral part of, the fiduciary relationship.  Disclosure of the fee should not chill the attorney-client relationship significantly more than the act of requiring payment of the fee.

   Courts have articulated[***9] a few "exceptions" to the general rule that the attorney-client privilege does not prevent disclosure of client identity and/or fee information.  Some of the "exceptions" are ill-defined and overlapping.

   Many courts have articulated a "legal advice" exception, which would apply when "disclosure of the information would implicate the client in the very matter for which legal advice was sought in the first case." In re Grand Jury Subpoenas Duces Tecum (Marger/Merenbach), 695 F.2d 363, 365 (9th Cir.1982). See also In re Grand Jury Subpoenas (Anderson), 906 F.2d 1485, 1488-89 (10th Cir.1990); In re Sealed Case, 877 F.2d 976, 979-80 (D.C.Cir.1989). The seminal case on the legal advice exception is Baird v. Koerner, 279 F.2d 623 (9th Cir.1960). In Baird, the Internal [*8] Revenue Service (IRS) received a letter from an attorney stating that an enclosed check in the amount of $12,706.85 was being tendered for additional taxes owed by undisclosed taxpayers. When the IRS subpoenaed the attorney in an effort to learn the identities of the delinquent taxpayers, [***10] the attorney refused to divulge any names, citing the attorney-client privilege.  The Ninth Circuit, applying California law, upheld the privilege because disclosing the clients' names would amount to an acknowledgment of guilt by the clients of the very matter for which legal advice was sought.

   The legal advice exception is not applicable if legal representation is secured in furtherance of continuing illegal activity.  In re Grand Jury Investigation No. 83-2-35, 723 F.2d 447, 452 (6th Cir.1983), cert. denied, 467 U.S. 1246, 104 S.Ct. 3524, 82 L.Ed.2d 831 (1984); In re Grand Jury Subpoenas Duces Tecum (Marger/Merenbach), 695 F.2d at 365 n. 1; Matter of Walsh, 623 F.2d 489, 495 (7th Cir.), cert. denied, 449 U.S. 994, 101 S.Ct. 531, 66 L.Ed.2d 291 (1980). Clearly the instant case does not fit within the "legal advice" exception.  The criminal charges and forfeiture case for which Mr. Murphy was retained have been terminated.  The requested information is for a separate [***11]tax fraud investigation.  R.A. and D.B. are not being represented by Mr. Murphy in the tax fraud matters.  Although both investigations may have resulted from the defendants' illegal drug operation, counsel was obviously retained to represent R.A. and D.B. in court on the criminal charges and in the forfeiture but not to give legal advice on the operation of a drug business or to give tax advice.

   A second perhaps overlapping exception has been called the "last link" exception.  The courts that have applied it have generally done so where the client's identity is sought.  Courts have articulated this exception in various ways.  The Fifth Circuit, in In re Grand Jury Proceedings (Pavlick), 680 F.2d 1026 (5th Cir.1982) (en banc), has defined the last link exception as
 
[*9] "one that obtains when the disclosure of the client's identity by his attorney would have supplied the last link in an existing chain of incriminating evidence likely to lead to the client's indictment."
 
Id. at 1027. This exception would not protect the disclosure in the instant case because the clients' identities are known and furnishing[***12] that information would not supply the "last link" leading to indictment. We should also note that the last link exception [**1224] has been expressly rejected by at least one federal circuit.  See, e.g., In re Grand Jury Investigation No. 83-2-35, 723 F.2d at 454. It also has been implicitly rejected in at least three other circuits.  In re Grand Jury Subpoenas, 906 F.2d 1485, 1490 (10th Cir.1990), citing In re Shargel, 742 F.2d 61 (2d Cir.1984); United States v. Liebman, 742 F.2d 807, 810 n. 2 (3d Cir.1984); and In re Osterhoudt, 722 F.2d 591, 593 (9th Cir.1983).

   The third exception, which seems to be articulated with increasing frequency, at least in federal courts, is the "communication" exception.  This exception applies when "disclosure of the client's identity or the existence of a fee arrangement would reveal information that is tantamount to a confidential professional communication." See Tornay v. United States, 840 F.2d 1424, 1428 (9th Cir.1988). In United States v. Liebman, supra,[***13] the Internal Revenue Service sought to compel an attorney to reveal the names of all clients to whom the attorney had given advice regarding the deductibility of certain fees.  The court upheld the privilege claim because revealing the names would be tantamount to disclosing a confidential communication. In United States v. Jeffers, the Seventh Circuit stated:
 
"The privilege may be recognized when so much of the actual communication has already been disclosed [not necessarily by the attorney, but by independent sources as well] that identification of the client [or of fees paid] amounts to disclosure of a confidential communication." (Alteration in original).
 
532 F.2d 1101, 1115 (7th Cir.1976) (quoting NLRB v. Harvey, 349 F.2d 900, 905 (4th Cir.1965)), vacated in part on [*10] other grounds, 432 U.S. 137, 97 S.Ct. 2207, 53 L.Ed.2d 168 (1977). The communication exception analysis seems to be the "current favorite," at least in federal courts as eight circuits now seem to utilize this approach.  Steven Goode, Identity, Fees, and the Attorney-Client [***14]  Privilege, 59 Geo.Wash.L.Rev. 307, at 326 & n. 138 (1991). Revealing the fee information in the instant case would not be barred by the communication exception to the general rule requiring disclosure of fee information.  First, payment of a fee was a nonassertive act which was not intended to communicate information. n5 Second, disclosure of the amount and method of payment of a fee in the instant case reveals nothing about the advice sought by the clients or given by the lawyer.  The attorney-client privilege does not protect against disclosure of information that is damaging or even incriminating; it only prevents disclosure of confidential professional communications.  In re Osterhoudt, 722 F.2d at 593.

n5 See 5 Lynn McLain, Maryland Evidence, § 503.6 at 489 (1987), "Nonassertive acts which the attorney observes or commits, which are not intended to communicate information, generally are held to be unprotected."

   We need not decide which, if any, [***15] of the identified "exceptions" we should adopt since disclosure in the instant case would not be protected by any of these "exceptions" to the general rule requiring disclosure.
 
   An innovative approach was proposed in Professor Goode's scholarly article, Identity, Fees, and the Attorney-Client Privilege.  He advocates a cost-benefit analysis weighing the potential benefits of disclosure against any possible deterrent to seeking legal advice or impediments to attorney-client communication.  Goode concludes that under a cost-benefit analysis, especially where, as in the instant case, the identity of the client is known, the balance of costs and benefits generally weighs heavily in favor of the disclosure of fee information.  He states:

   [*11] "As a policy matter, therefore, the case for ordinarily leaving fee arrangement information unprivileged is a strong one.  The cost-benefit balance tips heavily in favor of disclosure. Requiring lawyers to disclose such information is not likely to deter many potential clients from seeking legal advice, regardless of whether they are already known to the prosecution.  Some individuals who prefer to pay their legal bills in cash might be[***16] deterred, but this is a self-inflicted cost that easily can be avoided by using [**1225] another form of payment.  The benefits of disclosure are, however, ample.  Requiring disclosure will make available to the government evidence that may be highly probative of various types of wrongdoing, including tax evasion, participation in a continuing criminal enterprise, or membership in a drug smuggling conspiracy.  Only if prosecutors are allowed to seek fee arrangement information from a lawyer as a means of discovering who has been seeking legal advice from that lawyer will the costs of disclosure rise substantially."
 
59 Geo.Wash.L.Rev. at 355.

   The legal profession should be concerned with what Dean Charles McCormick characterized as "the prevailing flavor of chicanery and sharp practice pervading most of the attempts to suppress proof of professional employment . . . ." Charles McCormick, Evidence, § 90 at 216 (E.Cleary 3d ed. 1984).  We agree with Dean McCormick that the "rule of disclosure seems the approach most consonant with the preservation of the repute of the lawyer's high calling." Id. at 217.

   The attorney-client privilege is necessary[***17] in order to assure that clients are not impeded in seeking legal advice or in confiding in their lawyers.  The privilege, however, is not absolute; it does not restrict disclosure of every aspect of what occurs between the attorney and the client. In addition, the burden of establishing a privilege rests on the party asserting the privilege.  In re Grand Jury Investigation No. 83-2-35, 723 F.2d at 454; Charles McCormick, Evidence, § 88 at 209.  We hold that the attorney-client [*12]privilege does not prevent disclosure of the fee arrangements in the instant case.

   In his brief and argument, Mr. Murphy also alleges a violation of his clients' Fifth and Sixth Amendment rights.  These issues were not raised in the court below and, therefore, ordinarily would not be addressed by this Court. Even if they had been properly preserved for review, we fail to see any basis for Murphy's Fifth and Sixth Amendment claims on behalf of his clients.  The former clients are not being compelled to incriminate themselves, and no confidential constitutionally protected documents prepared by the clients are being sought.  Cf., Fisher v. United States, 425 U.S. 391, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976).[***18] The investigators are seeking information about cash expenditures; the nature of the expenditures are irrelevant.  Whether money was spent for a car, a house, or a lawyer is not germane; it is the fact money was spent, not the purpose for which it was spent, that is the center of the inquiry.  A car purchaser being investigated for tax fraud certainly could not contend that the amount and terms of his payment to a car dealer are not disclosable by the dealer because of the purchaser's Fifth Amendment privilege.

   Murphy's Sixth Amendment constitutional claims on behalf of his former clients are inapplicable in the instant case.  R.A. and D.B. are former clients of Murphy who are under investigation.  The Sixth Amendment right to counsel does not attach during the investigation stage of a prosecution.  McNeil v. Wisconsin,    U.S.   , 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991). The Sixth Amendment, if applicable at all, would be violated only if furnishing the information would create an actual conflict between a client and the attorney who is representing that client.  "Only a showing of actual conflict [between attorney and client], rather[***19] than mere speculative assertions, may overcome the concrete 'obligation of every person to appear and give his evidence before the grand jury.'" In re Grand Jury Subpoena for Reyes-Requena, 913 F.2d 1118, 1130 (5th [*13] Cir.1990), cert. denied,    U.S.   , 111 S.Ct. 1581, 113 L.Ed.2d 646 (1991) (quoting United States v. Dionisio, 410 U.S. 1, 9-10, 93 S.Ct. 764, 769, 35 L.Ed.2d 67, 77 (1973)). The Fourth Circuit has recently reiterated that the Sixth Amendment right to counsel is not violated by requiring an attorney to disclose fee information that might place the attorney in a position of acting as a witness against a client unless disclosure would also create an actual conflict between attorney and client that would require disqualifying the attorney from representing [**1226] his/her client.  In re Grand Jury Matter, 926 F.2d 348, 351 (4th Cir.1991).

   In the instant case, compelling Mr. Murphy to disclose information about fees paid by two former clients does not violate either the attorney-client privilege [***20] or the clients' Fifth or Sixth Amendment rights.

   JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY REVERSED.  CASE REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. COSTS TO BE PAID BY THE APPELLEE.

DISSENTBY: BELL

DISSENT: ROBERT M. BELL, Judge, dissenting.

   I agree with the majority that "Rule 1.6 [of the Model Rules of Professional Conduct] applies to confidential communications between a client and an attorney in all situations except where the 'evidence is sought from the lawyer through compulsion of law.'" (emphasis in original).  The information, sought in this case, which has been subpoenaed, duces tecum, from the respondent, by the Office of the Attorney General involves attorney's fees a former client paid respondent for representation in connection with a narcotics prosecution, a matter unrelated to the present tax investigation. Thus, it is the "attorney-client privilege rather than the Rules of Professional Conduct" on which we must focus. The circuit court erred when it applied Rule 1.6, perhaps as an adjunct to the attorney-client privilege, to quash the subpoena.

   [*14] The "overwhelming weight of authority," in this country, at least in the [***21] federal circuits, is, indeed, that records pertaining to a specific client's payment of attorney's fees and expenses are not privileged, i.e., they do not fall within the contours of the attorney-client privilege.  In re: Grand Jury Proceedings, 88-9 (MIA), 899 F.2d 1039, 1042 (11th Cir.1990); See In re: Osterhoudt, 722 F.2d 591, 593 (9th Cir.1983); United States v. Hodge & Zweig, 548 F.2d 1347, 1353 (9th Cir.1977); In re: Michaelson, 511 F.2d 882, 889 (9th Cir.1975); In re: Grand Jury Proceedings (Pavlick), 680 F.2d 1026, 1027 (5th Cir.1982); In re: Grand Jury Proceedings (United States v. Jones), 517 F.2d 666, 670 n. 2 (5th Cir.1975); In re: Grand Jury Matter, 926 F.2d 348, 351 (4th Cir.1991); United States v. (Under Seal), 774 F.2d 624, 628 (4th Cir.1985), cert. denied, 475 U.S. 1108, 106 S.Ct. 1514, 89 L.Ed.2d 913 (1986); In re Special Grand Jury No. 81-1, 676 F.2d 1005, 1009 (4th Cir.1982);[***22] In re Shargel, 742 F.2d 61, 62 (2nd Cir.1984); Daniel J. Capra, Deterring the Formation of the Attorney-Client Relationship: Disclosure of Client Identity Payment of Fees, and Communications by Fiduciaries, 4 Geo. J. Legal Ethics, 235, 237 (1990); Steven Goode, Identity, Fees, and the Attorney-Client Privilege, 59 Geo.Wash.L.Rev. 307, 320-35 (1991).

   The majority is correct that the facts of this case do not bring the requested fee information within any recognized exception to the general rule. Because former, rather than present clients, are involved in this case, n1 the charges in connection with which respondent represented them have been resolved, and the subpoena relates to a tax investigation being conducted into their finances, which disclosure, [*15] by the respondent of the fee information would not implicate these clients in the matter for which they sought his legal advice. Nor is the information the last link the State needs to determine the clients' identity and, thus, connect them with illegal activity, see In re: Grand Jury Proceedings (Pavlick), 680 F.2d at 1027; the[***23] subpoena having referred to the clients by name, identity simply is not an issue. n2 Finally, since, as [**1227] already noted, the clients did not consult the respondent about a tax investigation or tax matters, the "communication" exception does not apply. n3

n1 I refer only to the situation in which former clients' fee information is subpoenaed and I read the majority opinion as discouraging, rather than condoning, the subpoena of the fee information concerning present clients. Although it is clear to me that the attorney-client relationship is impacted more directly when clients, rather than former clients, are involved, in candor, aside from that fact, there seems to be little reason for distinguishing between former and present clients if, in neither case, is the fee information within the privilege.

n2 It may be asked: should the last link theory automatically apply to an investigation into violations of the prosecution for income tax laws, since the amount paid the attorney necessarily will provide a substantial, if not the final, link, in the chain of evidence necessary for the defendant's indictment? I would answer "yes."

[***24] 

 n3 That exception applies when disclosure of the information subpoenaed would necessarily disclose a confidential communication. See e.g. Tornay v. United States, 840 F.2d 1424, 1428 (9th Cir.1988); United States v. Jeffers, 532 F.2d 1101, 1115 (7th Cir.1976), vacated in part on other grounds, 432 U.S. 137, 97 S.Ct. 2207, 53 L.Ed.2d 168 (1977).

   The combination of the lack of authority and, in the context of this case, the failure of the fee information to come within one of the exceptions, leaves the majority comfortable with its conclusion that fee information not only should, but must, be disclosed.  Like other cases which have stated it, however, the majority opinion, too, fails to provide a reasoned basis upon which to justify that proposition as a matter either of reason or definition.  See Steven Goode, Identity, Fees and the Attorney-Client Privilege, 59 Geo.Wash.L.Rev. at 321-22, in which the author, whose bottom line on the issue is[***25] the same as the majority's, bemoans the cases' lack of principled analysis.  He points out that
 
[t]he starting point in Baird [v. Koerner, 279 F.2d 623 (9th Cir.1960)] as it has been in numerous cases that followed, was the oft-stated hornbook rule that the identity of a client is ordinarily not privileged. Although the justification for this rule is far from self-evident, it boasts a venerable heritage and was not challenged by the court.  [*16] Instead, the court sought to show why this was not the ordinary case." (footnotes omitted).
 
Id. The "venerable heritage," to which Professor Goode refers really does relate to client identity, not, as is the issue in the instant case, the fees paid by the client.  See Chirac v. Reinicker, 24 U.S. (11 Wheat) 280, 294, 6 L.Ed. 474 (1826) (footnotes omitted).

   The rationales offered for holding that fee information is not confidential are not persuasive.  See Goode, 59 Geo.Wash.L.Rev. at 348. One rationale for excluding fee information from the attorney-client privilege was stated in In re: Osterhoudt, 722 F.2d at 593:[***26] "Fee arrangements usually fall outside the scope of the privilege simply because such information ordinarily reveals no confidential professional communication between attorney and client, and not because such information may not be incriminating." Another was stated in In re Shargel:

   It seems evident to us that a broad privilege against the disclosure of the identity of clients and of fee information might easily become an immunity for corrupt or criminal acts.  See McCormick, Evidence § 90 at 187 (2d ed. 1972) ("One who reviews the cases in this area will be struck with the prevailing flavor of chicanery and sharp practice pervading most of the attempts to suppress the proof of professional employment.") Such a shield would create unnecessary but considerable temptations to use lawyers as conduits of information or of commodities necessary to criminal schemes or as launderers of money.  The bar and the system of justice will suffer little if all involved are aware that assured safety from disclosure does not exist.
 
742 F.2d at 64. Still another policy reason was offered by the 9th Circuit:
 
 The courts have inherent power to regulate[***27] the bar.  The courts have the right to inquire into fee arrangements both to protect the client from excessive fees and to assist an attorney in collection of his fee, but more importantly, the court may inquire into fee arrangements [*17] to protect against suspected conflicts of interest.  When an attorney is paid by someone other than his client to represent that client there is a real and present danger that the attorney may in actuality be representing not the interests of his client, but those of his compensator.  Not only does the client have a right to know who is paying his attorney, but the court retains the right to satisfy itself [**1228] that no conflict exists and that the attorney is fulfilling his duty of loyalty to his client.
 
511 F.2d at 888-89.

   An important purpose of the attorney-client privilege is "to increase communication between clients and lawyers." Goode, 59 Geo.Wash.L.Rev. at 314. In Maryland, we have said that the privilege is undergirded by the public policy that "'an individual in a free society should be encouraged to consult with his attorney whose function is to counsel and advise him[***28] and he should be free from apprehension of compelled disclosures by his legal advisor'." State v. Pratt, 284 Md. 516, 520, 398 A.2d 421, 423 (1979), quoting Harrison v. State, 276 Md. 122, 135, 345 A.2d 830, 838 (quoting Morris v. State, 4 Md.App. 252, 254, 242 A.2d 559, 561 (1968)). As Professor Goode points out, however, that purpose cannot be viewed in a vacuum:
 
Until a potential client actually becomes a client, no lawyer-client communication can occur.  In analyzing attorney-client privilege issues, therefore, courts must be sensitive not only to the effect of their decisions on the willingness of existing clients to confide in their lawyers but also on the willingness of potential clients to become clients.  (footnote omitted).
 
59 Geo.Wash.L.Rev. at 314. Neither can the reach of the privilege.  See Pratt, 284 Md. at 520, 398 A.2d at 423 ("While never given an explicit constitutional underpinning, the privilege is, nevertheless, closely tied to the federal, as [***29]well as this State's, constitutional guarantees of effective assistance of counsel and could, if limited too severely, make these basic guarantees virtually meaningless.") Daniel [*18] J. Capra, writing in 4 Geo. J. Legal Ethics at 238, puts it thusly:
 
The privilege is only one aspect of the trust and confidence that is necessary for an effective attorney-client relationship.  The attorney's ethical obligation to protect against disclosure of adverse client information extends beyond the evidentiary privilege.  This obligation is based on the proposition that the trust and confidence which is the foundation of the attorney-client relationship do not rest solely on the privilege, but also on the expectation that the attorney has a duty of loyalty and will represent the client's interests in every appropriate way.  It is hardly conducive to trust and confidence if the attorney is forced to give damaging information about his client to the government.  Moreover, forcing the attorney to become a witness against the client may require the attorney to disqualify himself with an obvious deleterious effect on the attorney-client relationship.  Finally, a prosecutor's subpoena of defense[***30] counsel can have a significant chilling effect on the lawyer and the bar as a whole. n[4] (footnotes omitted).
 
 See also Estate of Kofsky, 487 Pa. 473, 409 A.2d 1358, 1362 (1980).

n4 While this passage seems directed at situations in which there are on-going attorney-client relationships, much of what the author says applies equally to former attorney-client relationships, especially when service of a subpoena reasonably can be anticipated.  See infra.

   It is safe to assume that most clients do not consider the matter at all, but it is also safe to assume that, were they to have thought about it, not one of them would expect that his or her fee arrangements would easily be revealed, even to the government.  Indeed, I suspect that most would anticipate that fee information, like other communications or information shared with his or her lawyer, is, and will remain, confidential. Requiring disclosure of fee information, even after the attorney-client relationship has[***31] ceased, I [*19] believe, is very likely to have an effect on a potential client's willingness to consult an attorney.

   Payment of attorney's fees is necessary, not merely incidental, to the establishment of the attorney-client relationship. n5 Ordinarily, payment is required before the relationship is formed and certainly before representation [**1229]is provided.  Unless the fees are paid, in most instances, there will be no attorney-client relationship.  The fee is so intimately related to the attorney-client relationship, therefore, as to be inseparable from it.  In short, payment of the attorney's fees charged is at the very core of the relationship.  The size of the fee may also suggest a great deal about the client's case and representation, for example, just how critical the client's situation is perceived to be, both by the client and by the lawyer, which, in turn, bears on how much the client is able to pay.

n5 Of course, because attorney's fees are ordinarily not an issue in the case of the public defender or when services are rendered pro bono, my focus is on the private attorney who hopes his or her business is profitable.

[***32]

   When the State subpoenas, as part of a tax investigation, an attorney's fee information relating to a former client, it is hoping to uncover incriminating evidence, which the attorney served with the subpoena provides when the information sought is turned over.  A dedicated and tenacious advocate who is required to furnish fee information on a former client may be transformed, in a matter of a few days, from that tenacious advocate on behalf of that client into a State's witness against that client.  And, despite the State's and the majority's refusal to acknowledge it, the matter about which that attorney will be a witness is intimately related to, if not inseparable from, the case in which he represented the client.  Under these circumstances, as instances of fee information being subpoenaed become more and more frequent, counsel will find it necessary to advise potential clients that, at some time in the future, after the matter for which he or she was consulted [*20] has concluded, his or her records regarding the fee charged may be subpoenaed and, if that occurs, he or she will be obliged to respond by providing the State with the information it seeks, the fees paid. Stress[***33] and strain on the attorney-client relationship undoubtedly will result.  To be sure, some potential clients will not be deterred from seeking the advice of counsel.  Many, however, will be.

   Among the consequences of requiring an attorney to turn over fee information on former clients and, thus, to become the State's witness, perhaps its chief witness, against those clients is that, rather than consulting, and hiring, private counsel, potential clients, aware of that probability, may seek representation from the public sector, i.e. the public defender.  This will increase the already heavy burden borne by that sector in assuring meaningful access to counsel.  On the other hand, where public defender representation is not available, potential clients may choose to forego counsel altogether and represent themselves.  Under either scenario, it is the legal profession that loses; the attorney-client relationship will be inhibited where it does not exist and undermined, where it does.

   Permitting a lawyer to be used as a source of information to be used to prosecute that lawyer's former clients has another, and perhaps even more significant, consequence: the process may easily be abused. [***34] n6 If a lawyer's fee records are to be allowed to be subpoenaed in a tax investigation, tax prosecutions may thereby require minimal investigation and, so, may render tax prosecutions a more viable and, effective, prosecution option than conventional prosecutions. n7 Prosecutors may conclude, and act on the premise, [*21] that so long as the predicate for the tax investigation is laid -- the defendant is charged with a substantive [**1230] offense requiring him or her to consult, and pay, counsel -- it does not much matter whether the case is lost or aborted prior to trial; a viable back-up prosecution, which can build on the aborted, or lost, one and requiring no more than a subpoena for an attorney's fee records, is still available.  Thus, rather than providing an incentive diligently to build a case on substantive charges, the availability of the lawyer's records as a source of evidence in a tax prosecution, provides the opposite incentive.  Prosecutors may be encouraged to initiate prosecutions quickly and to terminate them as soon as possible; with the predicate in place -- the defendant has consulted, and presumably paid, counsel for defending him or her in the aborted [***35] prosecution -- the State can move quickly to pursue him or her on another front, success in the initial prosecution being secondary to the ultimate goal of nailing the defendant on any charge possible. Building the tax case could become, in reality, the only seriously pursued prosecution. n8

n6 We do not here deal with Internal Revenue Code § 6050I, as to which no contentions are made.  That regulation cannot justify an extension of the incursions into the attorney-client relationship/privilege.  One ill-advised regulation is not justification for another ill-advised step.

 n7 Maryland Code (1988), §§ 13-1001 and 13-1002 of the Tax General Article reveal that one who violates the State income tax laws is subject to a not insubstantial penalty, although, admittedly, not so severe as most mandated by the State narcotics laws.  For failure wilfully to file an income tax return, the penalty is "a fine not exceeding $5000 or imprisonment not exceeding 5 years or both." § 13-1001(c).  The penalty for wilfully filing a false return (which is the likely offense for a narcotics dealer) is the penalty for perjury, § 13-1002(b), or 10 years.  Maryland Code (1957, 1992 Repl.Vol.) Art. 27, § 439. 

[***36] 

n8 In its initial brief, the State acknowledges that it has initiated a prosecution program of prosecuting known or suspected narcotics traffickers for violation of the State income tax laws.  It asserts, as justification for the program, without reference to any source, that "[a]n expense common to these individuals is attorneys fees."

   While I do not quarrel with the philosophy of vigorously pursuing criminals wherever they may operate and nailing them as often as possible, I do quarrel with the role the attorney is forced to play in the process.  In my opinion, there is something unseemly and repugnant, not to mention inappropriate, about permitting the State to maintain a prosecution on this basis and there is also something very [*22] wrong with implicating counsel in it.  It is "well-established that 'the defendant has a right . . . to compel the State to investigate its own case, find its own evidence, and prove its own facts.'" Pratt, 284 Md. at 524, 398 A.2d at 426, quoting United States v. Wright, 489 F.2d 1181, 1195 (D.C.Cir.1973).[***37]

   There may be justification for the subpoena of an attorney's fee information if the attorney were the only source of evidence of a defendant's tax evasion. There is no indication in this record that the State seeks the attorney's records as a last resort, or that the information is not available from another source.  I am satisfied that the information the State seeks in this income tax investigation is available from other sources: the former client's bank records or the records of merchants with whom he or she has dealt, such as car dealers, clothing stores, credit card companies, etc. n9

n9 The relationship between attorney and client has elements, that none of these other relationships has -- trust and confidence. Indeed, it is the relationship, as well as the legal skills the lawyer possesses, that the fees purchase.  In my view, the attorney-client relationship can not be equated with these other relationships.

    The majority opinion contains another troubling premise: "that the 'rule of disclosure seems the approach[***38] most consonant with the preservation of the repute of the lawyer's high calling.'" At 11, quoting Charles McCormick, Evidence, § 90 at 216 (E. Cleary 3d ed. 1984).

   The lawyer's high calling is not compromised when a lawyer, true to that calling and consistent with his or her role as advocate, defends a criminal defendant charged with unpopular, even dastardly, charges.  Nor is it compromised when that same lawyer, recognizing the potential effects on the attorney-client relationship, resists the State's efforts to make him its instrument in the prosecution of former clients.  There is no suggestion of "chicanery or sharp practice" by counsel in this case.  Furthermore, the fact that portions of the client population may be tempted to [*23] "misuse" lawyers and, indeed, some lawyers may allow themselves to be so used, n10 is not a sufficient basis for ordering the disclosure of fees or holding that they are outside the privilege.  In my opinion, the vast majority [**1231] of lawyers take seriously their obligations, both ethical and professional.  I would trust them to do the right thing rather than abridging the attorney-client privilege/relationship, on the assumption[***39] that they will not.

n10 A lawyer engaged with a client in a criminal enterprise is another kettle of fish entirely -- the privilege does not apply to that relationship and, in any event, there is no scarcity of resources available to prosecute that lawyer who, by the way, should be prosecuted, and a disciplinary mechanism which can be engaged to remove him or her from the "high calling." Of course, in that circumstance, as is true whenever a disclosure may tend to be incriminatory, the lawyer may legitimately interpose his or her fifth amendment privilege.

   Like Judge Politz, dissenting in In Re: Grand Jury Proceedings (Pavlick), I believe this decision may be the beginning of the demise of the attorney-client relationship and, hence, privilege in this State.  I adopt his lament:
 
The drug traffic is abhorrent.  This cancer on our social fabric must be eradicated.  The desire to pursue vigorously all suspected participants is understandable and laudatory.  Many things may be sacrificed in this effort, but the [***40] attorney-client privilege is not, to me, a forfeitable item. The privilege is of such value to our civilized society and system of criminal justice that I must regretfully dissent from today's ruling and its natural consequence -- defense counsel becoming the government's unwilling instrument for the investigation and prosecution of clients for past criminal acts.  I am convinced that society's momentary gain from this development will be far outdistanced by its ultimate loss.  (emphasis in original)
 
680 F.2d at 1034. I add that, given the chilling effect of requiring fee information to be disclosed once representation has ceased, soon there may not be an attorney-client [*24] privilege to protect because there will be no attorney-client relationship. n11

 n11 This case, and the approach which it certifies, is about the drug traffic.  The clients were charged with narcotics violation and the State's brief very candidly describes the purpose of its prosecution program: "the investigation of known and suspected narcotics traffickers for violations of State income tax laws," both of which facts the majority opinion also acknowledges.

[***41] 

Juan GRAY v. STATE of Maryland 
No. 134, September Term, 1991
 
Court of Appeals of Maryland
 
325 Md. 340; 600 A.2d 856; 1992 Md. LEXIS 16

 January  29, 1992, Filed

   PRIOR HISTORY: [**1] Certiorari to Court of Special Appeals (Circuit Court for  Anne Arundel  County), Warren C. Duckett, Jr., Judge.

COUNSEL: George E. Burns, Jr., Asst. Public Defender (Stephen E. Harris, Public Defender) Baltimore, for petitioner.

   Kreg Paul Greer, Asst. Atty. Gen. (J. Joseph Curran, Atty. Gen.) Baltimore, for respondent.

JUDGES: Murphy, C.J., and Eldridge, Rodowsky, McAuliffe, Chasanow, Karwacki and Robert M. Bell, JJ.

OPINION: [*341] ORDER

   The Court having considered and granted the petition for a writ of certiorari in the above entitled case, it is this 29th day of January, 1992.

   ORDERED, by the Court of Appeals of Maryland, that the judgment of the Court of Special Appeals be, and it is hereby, vacated and the case remanded to the Court of Special Appeals for further consideration in light of Harris v. State, 324 Md. 490, 597 A.2d 956 (1991). Costs in this Court and in the Court of Special Appeals to be paid by Anne Arundel County. 

George E. SATTERFIELD, Jr. v. STATE of Maryland 
No. 37, September Term, 1991
 
Court of Appeals of Maryland
 
325 Md. 148; 599 A.2d 1165; 1992 Md. LEXIS 8

 January  8, 1992, Filed

   PRIOR HISTORY: [***1] Certiorari to Court of Special Appeals (Circuit Court for  Anne Arundel  County). Eugene M. Lerner, JUDGE

DISPOSITION: JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED IN PART AND REVERSED IN PART; CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO AFFIRM THE CONVICTION FOR POSSESSION WITH INTENT TO DISTRIBUTE PCP AND ONE CONVICTION FOR POSSESSION OF PARAPHERNALIA, AND TO VACATE ONE CONVICTION FOR POSSESSION OF PARAPHERNALIA; COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID BY ANNE ARUNDEL COUNTY.

CORE TERMS:  paraphernalia, parsley, simultaneous, conjunction, hypodermic syringe, manufacture, baggies, possessed, syringe, tighter, lenity, spray, parking lot, sentences, joined, legislative intent, prevailing, sprayed, mood, plastic baggies, irrevocably, distribute, dispensing, adulterant, convicted, packaging, glassine, quantity, liquid, flakes

COUNSEL: Bradford C. Peabody, Asst. Public Defender (Stephen E. Harris, Public Defender, both on brief), Baltimore, for petitioner.

   Annabelle L. Lisic, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., both on brief), Baltimore, for respondent.

JUDGES: Murphy, C.J., and Eldridge, Rodowsky, McAuliffe, Chasanow, Karwacki and Robert M. Bell, JJ.  Dissenting opinion by McAuliffe, J., in which Rodowsky and Karwacki, JJ., join.  Judges Rodowsky and Karwacki, join in the views expressed herein.

OPINIONBY: CHASANOW

OPINION: [**1165] [*149]

   On June 7, 1989, Baltimore City Police Officer Stanley Nolan was making a purchase at a 7-11 store in Anne Arundel County.  As Nolan returned to his truck, he saw a man, who was later identified as[***2] George E. Satterfield, Jr., getting into the [**1166] front passenger seat of a car parked next to his truck.  Nolan, an experienced narcotics officer, noticed "a very strong odor of PCP" when the car door was opened.
 
   Immediately after the car left the 7-11 parking lot heading north on Point Pleasant Road, an Anne Arundel County police cruiser driven by Officer James Teare pulled into the lot.  Nolan told Teare that a tan Monte Carlo, occupied by three white males, had just left the parking lot. Nolan further told Teare that, based upon the strong smell of PCP [*150] coming from the car, he believed that a sizeable quantity of freshly shaken or applied liquid PCP could be found in the Monte Carlo.

   Officer Teare testified that he knew Officer Nolan and was aware of his expertise in the field of narcotics.  Officer Teare, accompanied by Officer Nolan, drove one mile north on Point Pleasant Road before spotting the Monte Carlo parked outside the Double Eagle Saloon.  The two officers arrived just as Satterfield and the two other men were walking to the door of the bar.  Officer Nolan confirmed that both the car and the individuals were those that he had seen in the 7-11 parking lot. In response[***3] to Teare's call for back-up, Anne Arundel County Police Officers Athena Blake and Max Weinstein joined the surveillance effort at the Double Eagle Saloon.

   After roughly half an hour, the same three white males emerged from the Double Eagle Saloon and headed toward the tan Monte Carlo.  Satterfield went to the trunk of the car, removed a white plastic bag, and then got into the front passenger seat of the car.  A man later identified as Russell Michael got into the driver's seat, and a man named Ronald Aiken got into the back seat.  The car then left the parking lot and proceeded less than half a mile before Officer Blake, in a marked car, stopped the Monte Carlo for driving on the wrong side of the road.  Officers Teare and Blake each testified that, as they approached the car, they smelled the strong odor of PCP coming from it.

   Behind the driver's seat of the Monte Carlo, Officer Blake found a white plastic bag containing a glass jar, a bag of green vegetable material, sandwich baggies, a hypodermic syringe, and a 35mm film canister.  The green vegetable material was determined by a police chemist to be 32.43 grams of parsley flakes laced with PCP.  From Satterfield's pockets, Officer[***4] Weinstein recovered a list of names and monetary amounts, E-Z Wider rolling papers, and "bunched" paper currency amounting to $145.

   [*151] Satterfield was convicted in the Circuit Court for Anne Arundel County of possession with intent to distribute phencyclidine (PCP) and of two counts of possession of paraphernalia. On April 7, 1990, he was sentenced to seven years imprisonment for possession with intent to distribute PCP, a consecutive two-year term for possession of a hypodermic syringe, and another consecutive two-year term for possession of plastic baggies. The Court of Special Appeals, in an unreported opinion, affirmed Satterfield's convictions and sentences. We granted Satterfield's petition for certiorari to determine whether Satterfield could be convicted of and sentenced on two separate counts of possession of paraphernalia. For the reasons set forth below, we believe Satterfield may be properly convicted of only a single count of possession of paraphernalia.

   Satterfield was charged with and convicted of possessing the hypodermic syringe and the plastic baggies, each in violation of Maryland Code (1957, 1987 Repl.Vol.), Article 27, § 287(d). n1 Defense counsel [***5] explained [**1167]at oral argument [*152] that the hypodermic syringe, which was found in the plastic bag among the other items, was used to "spray" the parsley with liquid PCP.  Defense counsel referred to this Court's explanation in State v. Owens, 320 Md. 682, 687, 579 A.2d 766, 768 (1990), that a substance which is "laced" with PCP is usually "dipped into, or sprayed with, PCP." The Assistant Attorney General representing the State seemed to agree:
THE COURT: You are satisfied that the hypodermic was used in conjunction with mixing the PCP with parsley?
THE STATE: I would think so.  There was, as the Court has eluded, very little evidence provided during trial as to the exact use in this particular instance, but given the context in which it was found --
THE COURT: But given the context?  How in the world do you use a hypodermic syringe in this process?
THE STATE: Well I think it was discussed earlier; the idea of using the hypodermic syringe for the PCP to spray it on the parsley leaves . . . .
 
After the parsley was sprayed, the baggies would then be used to package the PCP-laced parsley for sale.  Thus, the parties agreed that it was a reasonable [***6]inference from the evidence that both items of paraphernalia were used in conjunction with the preparation and sale of the PCP-laced parsley. As there was no evidence to indicate that the hypodermic syringe was used for purposes of injection, the count charging possession of the syringe does not fall within § 287(d)(1).  Rather, the syringe here was used to [*153] contain and spray the liquid PCP; therefore, it more appropriately falls within the proscription of § 287(d)(2).  The baggies clearly fall within that same section's interdiction.

n1 Maryland Code (1957, 1987 Repl Vol.), Article 27, § 287 provides in pertinent part:
". . . it is unlawful for any person:
(d) To possess or distribute controlled paraphernalia, which shall mean:
(1) A hypodermic syringe, needle or other instrument or implement or combination thereof adapted for the administration of controlled dangerous substances by hypodermic injections under circumstances which reasonably indicate an intention to use such controlled paraphernalia for purposes of illegally administering any controlled dangerous substance;
(2) Gelatin capsules, glassine envelopes or any other container suitable for the packaging of individual quantities of controlled dangerous substances in sufficient quantity to and under circumstances which reasonably indicate an intention to use any such item for the illegal manufacture, distribution, or dispensing of any such controlled dangerous substance.  Evidence of such circumstances shall include but not be limited to close proximity of any such controlled paraphernalia to any adulterants or equipment commonly used in the illegal manufacture and distribution of controlled dangerous substances, such as but not limited to any of the following: scales, sieves, strainers, measuring spoons, staples and staplers, or procaine hydrochloride, mannitol, lactose, quinine or any controlled dangerous substance; or
(3) Lactose, quinine, mannite, mannitol, dextrose, sucrose, procaine hydrochloride or any other substance suitable as a diluent or adulterant in sufficient quantity and under such circumstances which reasonably indicate an intention to use any such substance for the illegal manufacture, distribution or dispensing of any controlled substance.  Evidence of such circumstances shall include but not be limited to close proximity of any such controlled paraphernalia to any other adulterants, diluents or equipment commonly used in the illegal manufacture and distribution of controlled substances, such as but not limited to any of the following: scales, sieves, strainers, measuring spoons, staples and staplers, glassine envelopes, gelatin capsules, or any controlled substance."

[***7]

   Because both counts were charged under a single statute, the task before the Court is to determine what the legislature intended to be the appropriate unit of prosecution.  Owens, 320 Md. at 686, 579 A.2d at 767. Divining the intent of the legislature is not always a simple task.  "As helpful as the various rules of statutory construction may be in determining legislative intent, perhaps the soundest guidance comes from the Supreme Court's admonition that we give the language of a statute a 'commonsensical meaning.'" Randall Book Corp. v. State, 316 Md. 315, 324, 558 A.2d 715, 720 (1989) (quoting United States v. Universal Corp., 344 U.S. 218, 221, 73 S.Ct. 227, 229, 97 L.Ed. 260, 264 (1952)).

   The State argues that the legislature, in an attempt to "turn the screw of the criminal machinery -- detection, prosecution and punishment -- tighter and tighter," n2 intended that each different item of paraphernalia be punished separately.  The State cites Cunningham v. State, 318 Md. 182, 567 A.2d 126 (1989) to support its contention.  In Cunningham[***8] , this Court allowed separate punishment for convictions of one count of possessing cocaine and one count of possessing heroin where the defendant simultaneously possessed separate quantities of each drug in the same bag.  In [**1168] permitting punishment for each of the two convictions, we held that "the legislature intended to make each controlled dangerous substance an allowable unit of prosecution . . . ." Id. at 192-94, 567 A.2d at 131. The State argues that this same analysis applies with equal force in the instant case: "Satterfield was found in simultaneous possession [*154] of a syringe and glassine baggies contained separately within a large bag.  It follows rationally that if § 287 authorizes separate convictions and punishments for each substance covered by the statute, it must also permit separate convictions and punishments for each item of paraphernalia possessed."

n2 In Cunningham v. State, 318 Md. 182, 189, 567 A.2d 126, 129 (1989) we quoted this language originally from Gore v. United States, 357 U.S. 386, 390, 78 S.Ct. 1280, 1282, 2 L.Ed.2d 1405, 1409 (1958), which we believe reflected the prevailing mood of the Maryland General Assembly with respect to illegal drug activity.

[***9]

   While this is one possible manner to apply the intent of the legislature as identified in Cunningham, we believe that another, perhaps more "commonsensical," application exists.  The Court in Cunningham clearly identified that a unit of prosecution is permitted for each controlled dangerous substance.  This principle explains the contrast between the holdings of Cunningham and Owens.  In Cunningham this Court upheld two convictions for the simultaneous possession of cocaine and heroin.  Whereas in Owens we held:
"Taking a common sense view of the matter, we are simply not persuaded that the legislature intended separate prosecutions and punishments for possession of PCP and possession of marihuana where the two substances have been, for all practical purposes, irrevocably joined as one."
 
Id. at 688, 579 A.2d at 768.  Because the PCP-laced marihuana in Owens was determined to be a single controlled dangerous substance, the Court held that only one conviction for its distribution could stand.  In each of these cases, the legislature's intention to allow a unit of prosecution per controlled dangerous substance impelled the result.

   Further, we believe[***10] it clear that the legislature did not seek to proscribe the use of items identified as paraphernalia (such as sandwich baggies) in and of themselves.  Rather these items, which may have common innocent uses, are punishable only under circumstances indicating an intent to use them in conjunction with a controlled dangerous substance.  This requisite connection is evidenced by the language of § 287(d)(2), which makes it unlawful to possess [*155] the enumerated items of paraphernalia n3 "under circumstances which reasonably indicate an intention to use any such item for the illegal manufacture, distribution, or dispensing of any controlled dangerous substance." Consequently, we believe that it is at least equally plausible that the legislature intended for the controlled dangerous substance to dictate the unit of prosecution in charges for paraphernalia as well.  Since both the State and defense counsel agree that the syringe and the plastic baggies were used to prepare the PCP-laced parsley for sale, there is no dispute that both items of paraphernalia were used in conjunction with a single controlled dangerous substance.  Under this analysis, it would seem that the legislature [***11] intended but one unit of prosecution.

n3 We note that the word "paraphernalia," as defined by this Court in Dickerson v. State, 324 Md. 163, 168 n. 3, 596 A.2d 648, 650 n. 3 (1991), is plural.  Had the legislature intended the prosecution of each "item of" paraphernalia specified in the statute, it could have said precisely that.

   We cannot say with certainty what the legislature intended.  As we have held before:
 
"When the legislative intent can be gathered from the various sources to which we have referred, that intent will be enforced, and the concept of lenity does not become an operable factor.  If, however, the legislative intent cannot be determined, and the indicia point with equal force in opposite directions, the rule of lenity dictates that the matter be resolved in favor of the accused and against the possibility of multiple punishments."
 
Cunningham, 318 Md. at 185-86, 567 A.2d at 127-28 (quoting Randall Book, 316 Md. at 327, 558 A.2d at 721).[***12] We recognize the rule of lenity as a rule of statutory construction and believe that in this case it tips the balance in favor of the accused.  Consequently, we find that Satterfield's separate convictions for two items of paraphernalia, [**1169] each used in conjunction with the same controlled dangerous substance, cannot stand.  We believe that the items of [*156] paraphernalia in this case were capable of supporting only one count of possession of paraphernalia under § 287(d).

   JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED IN PART AND REVERSED IN PART; CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO AFFIRM THE CONVICTION FOR POSSESSION WITH INTENT TO DISTRIBUTE PCP AND ONE CONVICTION FOR POSSESSION OF PARAPHERNALIA, AND TO VACATE ONE CONVICTION FOR POSSESSION OF PARAPHERNALIA; COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID BY ANNE ARUNDEL COUNTY.

DISSENTBY: McAULIFFE

DISSENT: McAULIFFE, Judge, dissenting.

   The Court holds today that a defendant may not be charged with more than one offense under Article 27, § 287(d)(2) for possession of multiple items of drug paraphernalia so long as those items are used in conjunction with the manufacture, distribution, possession, or administration[***13] of the same controlled dangerous substance.  The majority concedes that this interpretation is not clearly intended by the legislature but only that "it is at least [as] equally plausible" as an interpretation allowing for multiple convictions for possession of multiple items of paraphernalia, and that the rule of lenity tips the balance toward the interpretation favoring the accused.  Because I agree with the Court of Special Appeals that the legislature intended to allow more than one unit of prosecution for possession of different kinds of paraphernalia when used in conjunction with the same illicit drug, I dissent.

   As this Court has previously recognized, the legislature has intended in some instances to allow multiple convictions and sentences for the simultaneous possession of items made unlawful under the same statutory provision. Cunningham v. State, 318 Md. 182, 567 A.2d 126 (1989) (simultaneous [*157] possession of heroin and cocaine justified separate convictions and sentences); Randall Book Corp. v. State, 316 Md. 315, 558 A.2d 715 (1989) (simultaneous display for sale of 116 different pornographic magazines[***14] supported 116 convictions and sentences).

   We have said that to determine what the legislature intended as the appropriate unit of prosecution, we must look at the plain meaning of the words of the statute in light of "the general history and prevailing mood of the legislative body with respect to the type of criminal conduct involved." Cunningham, supra, 318 Md. at 185, 567 A.2d 126, quoting Randall Book, supra, 316 Md. at 327, 558 A.2d 715. In both of these cases, we inferred the intent to allow multiple units of prosecution not from specific statutory language authorizing them but from the history of the statutes and a more general analysis of the statutory language.

   The grounds we found in those cases to support allowing multiple units of prosecution are equally present in this case.  First, in terms of the general legislative history of Section 287, the Section is part of the same legislative act, the Maryland Controlled Dangerous Substances Act, that was at issue in Cunningham.  When we held in Cunningham that two convictions were proper for simultaneous possession of two drugs, we emphasized that the provisions[***15] of the Act were intended to be liberally construed and that
we believe the prevailing mood of the Maryland General Assembly with respect to illegal drug activity is identical with that earlier attributed to Congress by the Supreme Court.
[T]he history of the narcotics legislation in this "country reveals the determination of Congress to turn the screw of the criminal machinery -- detection, prosecution and punishment -- tighter and tighter."
 
Cunningham, supra, 318 Md. at 189, 567 A.2d 126 (citations omitted).  The majority does not suggest, and I find no indication in the Act, that Section 287 was intended to [**1170] be treated differently from other provisions of the Act.

   [*158] Second, in terms of interpreting the plain meaning of Section 287(d)(2), its language is similar to that found in the statute construed in Randall Book permitting a conviction for each separate pornographic magazine displayed for sale.  In Randall Book we noted that the specificity of the statute contributed to the interpretation that multiple units of prosecution were intended:

   In the case before us, the statute proscribes the knowing display for advertising[***16] purposes of '[a]ny picture, photograph, drawing, sculpture or other visual representation or image of a person or portion of the human body that depicts sadomasochistic abuse, sexual conduct or sexual excitement, or any verbal description or narrative account of these activities or items.' Art. 27, § 416D(a).  It seems apparent that the legislature specifically intended to establish a small unit of prosecution.
 
Randall Book Corp., supra, 316 Md. at 327, 558 A.2d 715. Section 287(d)(2) similarly lists with specificity the different items that constitute paraphernalia and the different uses which make the paraphernalia unlawful to possess.  Thus, as in Randall, it can be inferred that multiple units of prosecution were intended for possession of different types of paraphernalia.

   The majority does not contest that multiple convictions would be allowed if each item of paraphernalia involved in this case were used in conjunction with a different illicit drug.  They state, however, that only one unit of prosecution is permissible when the different paraphernalia are possessed for the use of the same drug.  To support this distinction, the majority[***17] relies on State v. Owens, 320 Md. 682, 579 A.2d 766 (1990), in which we held that the simultaneous possession of marijuana and PCP are not separate offenses if the two substances are for all practical purposes irrevocably joined as one.

   Reliance on Owens is misplaced because, in contrast to that case, here the two items of paraphernalia possessed by Petitioner were not irrevocably joined as one.  In Owens, we specifically relied on the fact that the two substances [*159]were mechanically bound together "in a way that renders it impossible, in any practical sense, to separate them." Id. at 687, 579 A.2d 766. Here, however there are two different types of paraphernalia possessed for two different purposes.  The syringe was used in the manufacture of the PCP product to spray the parsley flakes, while the baggies were used as a means of packaging and distributing the sprayed flakes. The items were thus distinct and intended for different purposes.  As the Court of Special Appeals held, "this is an instance where the possession of each item is simultaneous, yet they are entirely separate, and thus the possession[***18] of each clearly constitutes a separate offense."

   The majority's holding produces the odd result that if Petitioner had been found to possess a whole laboratory of equipment and supplies for the manufacture, packaging, and distribution of PCP, only one unit of prosecution would be permissible under Section 287.  I do not believe that the Legislature intended such a result when it enacted the Maryland Controlled Dangerous Substances Act.  I would affirm the judgment of the Court of Special Appeals. 

The MARYLAND CLASSIFIED EMPLOYEES ASSOCIATION, INC. et al.and American Federation of State, County, and Municipal Employees, Council 92,Maryland State Employees Union et al. v. Governor William Donald SCHAEFER et al. 
No. 50, September Term, 1991
 
Court of Appeals of Maryland
 
325 Md. 19; 599 A.2d 91; 1991 Md. LEXIS 208; 30 Wage & HourCas. (BNA) 1156

 December  12, 1991

   PRIOR HISTORY: [***1] Appeal from the Circuit Court for  Anne Arundel  County pursuant to certiorari to Court of Special Appeals. Raymond G. Thieme, Jr., JUDGE

CORE TERMS:  work week, salary, overtime compensation, regulation, hours worked, overtime, classification, appointing authority, personnel, appointing, implied contract, designate, additional compensation, rates of pay, effective, merit system, designation, hourly, employees working, property interest, summary judgment, classified, implemented, promulgated, designated, recommend, grouping, lawfully, averred, duties

COUNSEL: J. Edward Davis and Stephen B. Awalt, Towson, and William H. Engleman, Baltimore, for petitioners.

   Judson P. Garrett, Jr., Deputy Atty. Gen., Baltimore, J. Joseph Curran, Jr., Atty. Gen., for respondents.

JUDGES: Murphy, C.J., and Eldridge, Rodowsky, McAuliffe, Chasanow, Karwacki and Robert M. Bell, JJ.

OPINIONBY: PER CURIAM; MURPHY

OPINION: [**92] [*21]

   ORDER

   For reasons to be stated in an opinion later to be filed, it is this 17th day of July, 1991

   ORDERED, by the Court of Appeals of Maryland, that the judgment of the Circuit Court for Anne Arundel County be, and it is hereby, affirmed.  Costs in this Court and in the Circuit Court for Anne Arundel County to be paid by the Petitioners.  Mandate to issue forthwith.
 
   MURPHY, Chief Judge.

   This case involves the validity of an Executive Order promulgated by the Governor of Maryland, which increased the work week for substantial numbers of State Executive Branch employees from 35 1/2 hours per week to 40 hours, without additional compensation.

   I.

   Governor William Donald Schaefer, by Executive Order dated February 27, 1991, decreed that[***2] "[t]he normal work week for State employees [in the Executive Branch of Government] shall be 40 hours effective July 1, 1991." n1 The Executive Order directed the Secretary of Personnel and the appointing authorities to "take all actions necessary or desirable to implement this directive." In his order, the Governor stated that "[t]he federal government, most private [*22] and public sector employees, and one-third of State employees presently work 40 hours a week"; that it was prudent "[d]uring these difficult fiscal times . . . to search for savings for the taxpayers of this State"; and that a standardized "40 hour work week for State government will achieve cost containment through increased productivity and employee development."

n1 By appropriate directives issued by the administrative head of the Judiciary and by the presiding officers of the General Assembly, employees of both branches were similarly required to work a 40-hour week.

   Two separate declaratory judgment actions were thereafter instituted in the [***3]Circuit Court for Anne Arundel County to declare the Governor's Executive Order void ab initio.  The first action was filed by the Maryland Classified Employees Association, Inc., and various of its employee members; the second action was filed by the American Federation of State, County and Municipal Employees and a number of classified employees.  Named as defendants were the Governor, the State of Maryland, the Secretary of Personnel, and the Board of Regents of the University of Maryland.

   The plaintiffs in each suit (hereinafter collectively the plaintiffs) averred that the Code of Maryland Regulations (COMAR) 06.01.01.42A(1)(a) defined a full-time work week as "5 work days, and at least 35 1/2 hours up to a maximum of 40 hours"; that the appointing authorities are authorized by law to designate the work week for all positions under their control; that for many years the appointing authorities have designated 35 1/2 hours as the normal work week for Executive Branch employees; and that, as the Governor is not the appointing authority, his Executive Order cannot lawfully change the work week hours.  The plaintiffs further alleged that Maryland Code (1985 Repl.Vol., 1990 Cum.Supp.), [***4] Article 100, § 76 provides that "every State employee who works in excess of the normal work week . . . shall receive extra compensation for such hours worked in excess of that time"; that the Governor's order violates this law and requires Executive Branch employees to work an additional 4.5 hours without paying the additional compensation mandated by § 76; and that the Governor is not empowered, [*23] absent legislative authorization, to make changes that [**93] are inconsistent with the existing law. n2

n2 When first enacted in 1945, this provision was codified as Code, Article 100, § 77.  Since October 1, 1991, the provision is codified as Code (1991 Repl.Vol.), Article 89, § 27.  For simplicity, all references to this statute in this opinion are to former Article 100, § 76.

   In their suits, the plaintiffs claimed that, as classified State employees, they have "a property right in their employment [which] cannot be taken from them without due process of law"; and that the Governor's order deprives them of their wages[***5] by requiring that they work greater hours without additional pay or benefits.  In this regard, the plaintiffs asserted that the Governor and the other defendants, through their actions, violated the "separation of powers" provisions of Article 8 of the Maryland Declaration of Rights by attempting to execute a legislative function, specifically the regulation of overtime pay in conflict with the provisions of § 76.  The plaintiffs claimed that because they "accepted jobs with compensation established on a 35 1/2 hour work week, . . . worked at those jobs for many years, . . . made child care, home and family commitments based on the State's promise of a 35 1/2 hour work week, [they] have acquired a vested right . . . in the continuation of a 35 1/2 hour work week, and compensation for hours worked in excess of 35 1/2 hours." Moreover, based upon these alleged facts, the plaintiffs averred that they have an express or implied contract with the State to work a 35 1/2-hour work week, with overtime or compensatory time for all hours worked in excess of 35 1/2 hours; and that as a result of the Governor's order, their contract with the State has been breached and will cause them monetary[***6] and nonmonetary damages.

   The plaintiffs also asserted that the Governor's order violated provisions of Code (1988 Repl.Vol., 1991 Cum.Supp.), Article 64A (the State's Merit System Law), pursuant to which the Secretary of Personnel promulgated the State's "Salary Plan." As to this, the plaintiffs stated that, [*24] under § 27 of Article 64A, the Secretary must recommend to the Governor a pay plan for State employees "to the end that all positions in the service involving comparable skills, knowledge, effort, responsibility, and working conditions shall be paid comparable salaries in accordance with the relative value of the services to be performed." The plaintiffs alleged that the Secretary's Salary Plan has the force of law and includes a rule that the rate of pay for any employment classification cannot be changed except as authorized by the Legislature; and when the salary plan became effective, the duties and classifications of the plaintiffs were those performed within a 35 1/2-hour work week. Consequently, they averred that "the salaries and compensation for the classifications in the salary plan were established by the Secretary and approved by the Governor fully recognizing[***7] that the compensation rates were a 35 1/2 hour work week and that the employees would receive additional overtime compensation for all hours worked in excess of 35 1/2 hours per week." According to the plaintiffs' suits, to increase the hours of the work week results in lowering the rate of pay for positions within the salary plan, an action that cannot lawfully be initiated except by the Secretary in accordance with the provisions of § 27 of Article 64A; that the pay plan cannot otherwise lawfully be amended; but that "the Secretary and Governor failed to act as required by said section which requires that the amended pay plan be reported to the General Assembly by the 15th day of a regular session which was not done." Because of this failure, the plaintiffs asserted that the Governor's Executive Order, which in effect altered the salary plan, was not within his lawful authority and was therefore invalid.

   The parties entered into a detailed stipulation of facts which, inter alia, stated that the Governor's order was actually implemented by the appointing authorities; and that 33,438 State employees in the Executive Branch, who work 35 1/2 hours per week, were thereby affected. [***8] It was further stipulated that the regular work week of 21,175 State Executive Branch employees is 40 hours; that in the [*25] University of Maryland System, 5,083 employees presently work 40 hours per week and 5,262 employees work fewer than 40 hours per [**94] week; and that those employees whose work week has been 35 1/2 hours earn cash overtime or compensatory leave for hours worked in excess of 35 1/2 hours per week.  It was also stipulated that there are 442 employment classifications in the State merit system; that merit system employees are paid on an annual basis; that in establishing the rates of pay for the classifications in the State Salary Plan, the hours worked by employees are not taken into consideration; and that consequently 40-hour employees receive the same salaries as 35 1/2-hour employees working in the same classification. Finally, it was stipulated that the Secretary of Personnel reported no amendments to the salary plan to the General Assembly in January of 1991.

   The cases were consolidated and cross-motions for summary judgment were filed by the parties upon the further stipulation that the exhibits in support of the defendants' motion for summary judgment[***9] were genuine, authentic, and admissible, if relevant.  The circuit court (Thieme, J.) granted summary judgment for the defendants on July 9, 1991.  It found no dispute as to any material fact and concluded in a detailed opinion that, as a matter of law, there was no merit in any of the plaintiffs' allegations.

   Claiming that the case was one of "monumental significance," the plaintiffs appealed to the Court of Special Appeals.  They simultaneously petitioned this Court for a writ of certiorari to bypass the intermediate appellate court, as authorized by Code (1989 Repl.Vol., 1991 Cum.Supp.), § 12-201 of the Courts and Judicial Proceedings Article.  In their petitions, the plaintiffs presented these issues for our review:

   "1. Whether the Governor's Executive Order requiring the Plaintiffs to work a 40 hour work week without additional compensation violates the doctrine of Separation of Powers.

   [*26] "2. Whether the Governor's Executive Order requiring the Plaintiffs to work a 40 hour work week without additional compensation violates the Plaintiffs' contract rights.

   "3. Whether the Governor's Executive Order requiring Plaintiffs to work a 40 hour work week without additional compensation[***10] violates the Plaintiffs' procedural due process rights.

   "4. Whether the Governor's Executive Order requiring Plaintiffs to work a 40 hour work week without additional compensation violates the State's Pay Plan Law."

   We granted certiorari and advanced the matter on the docket to promptly resolve the important issues raised in the case.  By per curiam order dated July 17, 1991, we affirmed the judgment of the Circuit Court for Anne Arundel County "for reasons to be stated in an opinion later to be filed." We now give our reasons for that determination.

   II.

   The executive power of the State is vested in the Governor of Maryland by Article II, § 1 of the Constitution of Maryland.  Maryland Code (1984, 1991 Cum.Supp.), § 3-302 of the State Government Article provides that the Governor, unless otherwise provided by law, "shall supervise and direct the officers and units" in the Executive Branch of government.  Section 3-401 of this Article defines an Executive Order of the Governor, inter alia, as one which adopts "guidelines, rules of conduct, or rules of procedure for:

   (i) State employees;

   (ii) units of the State government; or

   [*27] (iii) persons who are under the jurisdiction[***11] of those employees or units or who deal with them." n3

n3 The Attorney General of Maryland has opined that an Executive Order issued by the Governor has the force of law as long as it is not inconsistent with an existing statute.  See 64 Op. Att'y Gen. 180 (1979).

   Code (1990 Repl.Vol.), Article 41, § 9-101 creates the Department of Personnel as a principal department of State government.  Its head, appointed by the Governor, is the Secretary of Personnel, who is charged with responsibility for the operation of the [**95] department.  The Secretary is directed to establish guidelines and procedures to promote the orderly and efficient administration of the department.  Section 9-105 authorizes the Secretary of Personnel to promulgate rules and regulations for the governance of the Department.  Code (1988 Repl.Vol., 1991 Cum.Supp.), Article 64A, § 11 also authorizes the Secretary of Personnel, in the administration of the State's merit system law, to make rules and regulations as may be deemed necessary. [***12]Section 27 of this Article empowers the Secretary to recommend to the Governor "a pay plan for all classified and unclassified positions for which the Secretary has authority to administer pay." This section outlines various criteria to be considered by the Secretary in his salary plan recommendations to the Governor.  It also provides that the pay plan take effect when funds for that purpose are available within the State Budget.  Code (1988), § 7-108(b) of the State Finance and Procurement Article requires the Governor to include in each Budget Bill "the current salary plan of the Secretary of Personnel as the basis for the appropriations to pay those salaries to which the plan applies."

   COMAR 06.01.01.42A(1), the applicable personnel rule promulgated by the Secretary of Personnel, provides that the "full-time work week consists of 5 work days, and at least 35 1/2 hours up to a maximum of 40 hours." It also provides that "[t]he appointing authority shall designate the work week for all positions under the appointing authority's control, and shall file the designation with the Secretary [, which] is effective until the appointing authority changes [*28] it." Subsection (f) provides[***13] that work in excess of a position's normal work week shall be compensated by overtime payments or by compensatory leave.

   In its present form, § 76(a) specifies that, unless otherwise provided, "every State employee [in the Executive Branch] who works in excess of the normal work week . . . shall receive extra compensation for such hours worked in excess of that time." This section also provided, inter alia, that "[p]ayment for time worked in excess of the position's normal work week but not in excess of 40 hours shall be made at the employee's usual hourly rate or rates."

   III.

   Separation of Powers

   We first consider the plaintiffs' contention that the Governor, by his Executive Order, contravened the legislative mandate of a 35 1/2-hour work week contained in Article 100, § 76.  They claim that, in doing so, the Governor usurped the plenary power of the General Assembly and exercised a legislative function, thereby unlawfully denying State employees the overtime compensation required by § 76 for work in excess of 35 1/2 hours per week.

   In the circuit court, Judge Thieme concluded that the Governor was "specifically authorized, through the legislative grant of authority to the [***14]Secretary of Personnel, to control virtually all aspects of employment including the work week for State employees in the Executive branch." He further said that, as head of the Executive Branch of government, the Governor was authorized to direct and supervise the officers of that branch, including the Secretary of Personnel who serves at his pleasure.  Judge Thieme noted that the Secretary has been given extremely broad power by the Legislature in matters concerning State personnel, including rule-making authority to carry out the provisions of the merit system law.  The authority vested in the Secretary, Judge Thieme observed, encompassed establishing "the number of hours in a work week," and as the [*29] Secretary was the Governor's appointee and subject to his direction, the Governor's Executive Order was within his authority to promulgate.  Specifically, Judge Thieme said that the definition of an Executive Order in § 3-401 of the State Government Article was sufficiently broad "to allow the Governor to control and direct the officers over whom he is statutorily given control . . . [including] the essential aspects of state employment such as hours in a work week."

   In reaching[***15] this determination, Judge Thieme recognized that the Governor cannot [**96] by Executive Order "undo what the legislature has done by statute." He said, however, that the Governor, in promulgating his Executive Order, did not attempt to override § 76, because that statute deals with overtime compensation and simply directs "that employees who work in excess of their normal work week, but less than 40 hours, will be compensated at the usual hourly rate." Section 76, Judge Thieme said, does not establish that the normal work week is 35 1/2 hours, and that work in excess of those hours is compensable.  In support of his conclusion, Judge Thieme reviewed the history underlying the provision of a "normal work week" and the meaning of § 76.  He said that Personnel Rule 42E (now set forth in COMAR as 06.01.01.42A) established the normal work week "to be not less than 35 1/2 hours and not more than 40 hours"; that had the Legislature intended to mandate a 35 1/2-hour work week contrary to the Secretary's regulation, it would have expressly so provided; and that the Governor's action did not therefore contravene the doctrine of separation of powers.  Judge Thieme observed:
 
"[T]he Governor's action[***16] does not render the statute a nullity, for the statute remains perfectly valid unless the designation of the work week has been changed to 40 hours, as was done in this instance.  The simple fact that the employees will not be able to take advantage of the statute does not render it a nullity since its usefulness was predicated upon the flexibility of the work week. In the future if the work week is reduced the statute will [*30] once again be controlling for hours worked in excess of the designated work week short of 40 hours."

   We are in full agreement with Judge Thieme's reasons for granting summary judgment for the defendants.  There is simply no merit to the plaintiffs' argument that the normal work week, as used in § 76, is the "established level or pattern of work," namely, 35 1/2 hours per week.  As earlier indicated, nothing in the language of § 76 fixed the normal work week of State employees at 35 1/2 hours.  Regulation 42E of the then Commissioner of Personnel (precursor of the Secretary of Personnel), which was extant at the time that § 76 was amended to refer to a "normal work week," defines that term to mean not less than 35 1/2 hours but not more than 40 hours. [***17]

   As its history demonstrates, § 76 was enacted to alleviate the plight of State employees who received no overtime compensation regardless of the number of hours or days worked during a week.  In this regard, the stipulated facts show that, on November 16, 1944, the Governor was urged to establish a uniform rule governing the work week of State classified employees.  At that time, the work week varied from agency to agency, with some office employees working 5 1/2 days, others working greater hours, and at least one employee required to work 6 1/2 days per week.  No overtime compensation was permitted in any of these instances.  It was recommended to the Governor that the official work week be limited to 6 days, but that those agencies on a 5 1/2-day work week be allowed to continue, and that overtime compensation be paid for more than 6 days and for working on Sunday and 13 holidays.

   By ch. 1015 of the Acts of 1945 (an emergency enactment), the General Assembly added former Article 100, § 76.  In its original form, overtime was to be paid to any State employee, except hourly employees, for work in excess of 48 hours per week.  Thereafter, on September 13, 1945, the Commissioner of [***18]State Employment and Registration (another precursor of the Secretary), with the approval of the State Board of Public Works (which is comprised of [*31] the Governor, the Comptroller, and the State Treasurer), issued a Bulletin fixing the work week at 5 days; the hours on 4 of those days were from 9 a.m. to 5 p.m. and on the 5th day from 9 a.m. to 5:30 p.m. Excluding luncheon and other breaks, the Bulletin contemplated 40 1/2 hours during a 5-day week, even though ch. 1015 of the Acts of 1945 referred to overtime compensation only after 48 hours had been worked.  The substance of the Bulletin was later incorporated into and became known [**97] as Regulation 42E.  It is thus clear that the General Assembly, by its 1945 enactment of ch. 1015, addressed the issue of overtime compensation while the Commissioner, by Regulation 42E, addressed the separate issue of a standard work week.

   The General Assembly amended § 76 by ch. 319 of the Acts of 1947 to exclude certain agencies from its scope.  Chapter 52 of the Acts of 1952 again amended the statute by reducing the overtime compensation threshold to 44 hours for all employees other than hourly employees.  Although the Legislature was presumptively[***19] aware of Rule 42E, see Board of Educ., Garrett Co. v. Lendo, 295 Md. 55, 453 A.2d 1185 (1982), neither of these acts changed the substance of the personnel regulation -- an indication that the Legislature did not intend that § 76 establish a fixed work week.

   Chapter 130 of the Acts of 1956 further amended § 76 by dividing State employees into four classes -- (1) shift workers, who were to receive overtime after 40 hours, (2) nonshift workers, who were to receive overtime after 44 hours, (3) hourly workers, who were ineligible for overtime, and (4) supervisory personnel, who also were ineligible for overtime. Thereafter, the Commissioner of Personnel wrote to the Board of Public Works concerning the requirements of that enactment.  On May 24, 1956, with the concurrence of the Board of Public Works and the approval of the Governor, the Commissioner of Personnel amended Rule 42E as follows:
 
[*32] "E. Work Week, Overtime and Compensatory Credits
 
1. Work Week.  By authority of the Board of Public Works, the 5 day normal work week is:
 
For institutional employees other than office workers: 40 hours.
 
For institutional office employees[***20] and all employees of general State departments -- Not less than 35 1/2 hours.

   . . .
 
3. Overtime.  As provided by Chapter 130, Acts of 1956, payments for overtime work are to be based on authorization of Commissioner, on file in respective State agency, and Central Payroll Bureau or other prescribed payroll unit."
 
The amendments to Rule 42E treated the work week and overtime compensation as two separate categories.  The reference to ch. 130 of the Acts of 1956 in the personnel regulation was applicable only to overtime compensation.

   By chs. 6 and 31 of the Acts of 1958, the General Assembly, with some exceptions, established the threshold for overtime compensation at 40 hours. Rule 42E was again amended to show this change in the overtime compensation permitted by law.
 
   By ch. 167 of the Acts of 1969, § 76 was again amended in several particulars to comply with requirements of the federal Fair Labor Standards Act for payment of time and a half, rather than straight time, for hours worked in excess of 40 hours.  Conforming amendments to Rule 42E were made on July 1, 1970.  On June 30, 1974, Rule 42E was incorporated within COMAR without substantive change and is now numbered[***21] as 06.01.01.42A(1).

   In 1978, the COMAR regulation was amended to read:
 
"(1)(a) The appointing authority shall designate the work week for all positions under his control.  The designation of work week hours is effective until the appointing authority changes it.
 
[*33] (b) Full-time Employees.  The work week consists of 5 working days, and not fewer than 35 1/2 hours nor more than 40 hours."
 
Thereafter, by ch. 233 of the Acts of 1985, § 76 was again amended; its substance, as now, was that State employees who work in excess of the normal work week shall receive overtime compensation for hours worked in excess of that time.

   None of the many amendments to either § 76 or the regulations of the Secretary of Personnel indicate a change in the basic dichotomy, begun in 1945, between the establishment of the work week hours and overtime compensation, namely, that the Legislature would exercise authority over [**98] payment for overtime, while the Executive Branch would designate the work week. n4 The contemporaneous construction of § 76 by the then Commissioner of State Employment and Registration, by his successors, the Commissioner of Personnel and the Secretary of Personnel, and [***22] the Board of Public Works, continuously followed to the present day, plainly mitigates against the interpretation of § 76 as specifying a fixed work week. In this regard, our cases have long held that "a construction placed on a statute by administrative officials soon after its enactment is strong, persuasive influence in determining the judicial construction and should not be disregarded except for the strongest and most urgent reason." Board of Educ., Garrett Co. v. Lendo, supra, 295 Md. at 63, 453 A.2d 1185. See also Falik v. Prince George's Hosp., 322 Md. 409, 588 A.2d 324 (1991). While no custom, however venerable, can nullify the plain meaning and purpose of a statute, Macke Co. v. Comptroller, 302 Md. 18, 22-23, 485 A.2d 254 (1984), legislative acquiescence in a long-standing administrative construction "'gives rise to a strong presumption that the interpretation is correct.'" Morris v. Prince George's [*34] County , 319 Md. 597, 613, 573 A.2d 1346 (1990) (quoting Sinai Hosp. v. Dep't of Employment, 309 Md. 28, 46, 522 A.2d 382, 391 (1987)).[***23] Furthermore, "[t]he General Assembly is presumed to have had, and acted with respect to, full knowledge and information as to prior and existing law and legislation on the subject of the statute and the policy of the prior law." Board of Educ., Garrett Co., supra, 295 Md. at 63, 453 A.2d 1185.

n4 Chapter 372 of the Acts of 1989 specifically conferred rule-making authority on the Secretary of Personnel with respect to compensatory time, subject to federal law and election by the employee.

   As we have already observed, the Governor, as the head of the Executive Branch, has broad powers with respect to Executive Branch State employees and over the Secretary of Personnel, who exercises his power subject to the Governor and carries out the Governor's policies with respect to personnel matters. Consequently, there is no foundation to the plaintiffs' argument that the Governor has no authority to fix the normal work week by Executive Order.

   IV.

   Implied Contract

   Before Judge Thieme, the [***24] plaintiffs argued that the State is estopped from changing the work week of those employees who, at the time the Executive Order was issued, held positions in which the work week was designated at 35 1/2 hours.  They relied on the theory of an implied contract to continue to work only those hours, or to be paid for hours in excess of 35 1/2 hours. Judge Thieme said that "it is inconceivable that any implied contract purporting to fix the work week could be validly made" in light of the clear language of the regulation that work week hours are changeable within the range of 35 1/2 to 40 hours per week.  He noted that COMAR 06.01.01.42A provides that "[t]he appointing authority shall designate the work week for all positions under the appointing authority's control, [and that the] . . . designation of work week hours is effective until the appointing authority changes it." In view of these provisions, Judge Thieme emphasized that "the regulations clearly contemplate a flexible work week within the range [*35] set subject to change by the appointing authority [and therefore] any implied contract must necessarily exist within the frame work of the existing rules and regulations, which[***25] in this instance preclude the implication of a fixed work week."

   For the reasons stated by Judge Thieme, there is no merit to plaintiffs' implied contract argument.

   V.

   Procedural Due Process

   The plaintiffs maintained in the circuit court, as they do before us, that the Governor's Executive Order constitutes a "taking" of the property interests of State employees in contravention of their due [**99] process rights. Specifically, they argued that by increasing the number of hours worked without increasing compensation, the Governor deprived them of their right to additional compensation without the traditional due process rights to notice, hearing, and an opportunity to be heard.  As to this, Judge Thieme observed that there was no "taking" of a constitutionally protected property interest because the existing regulation of the Secretary of Personnel clearly defined the work week and specified that it is subject to change at the discretion of the appointing authorities.  Consequently, he said, that since there was no property interest, there could be no denial of due process.  He concluded that "[f]ar from creating an entitlement, the work week regulations affirmatively deny the creation [***26]of any property interest in a 35 1/2-hour work week." In so concluding, the circuit court held that nothing in the Supreme Court cases relied upon by the plaintiffs mandated a different result. n5 We are in full accord with Judge Thieme's reasoning.

n5 The plaintiffs placed primary reliance upon Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), and Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970).

   [*36] VI.

   State Pay Plan

   The plaintiffs urge us to find that the Governor's Executive Order violated the State Pay Plan because it was inconsistent with certain procedures required by the Legislature before employees' salaries may be amended.  Specifically, they claim that the Governor contravened § 27 of Article 64A by altering salaries of State employees without the legislative approval required by that statute.  In this regard, the plaintiffs say that a change in the work week is [***27]a change in the salary plan, and that such a change cannot be effectuated by an Executive Order.

   Judge Thieme concluded that a change in the work week was not a change in the salary plan.  He reasoned that, because State employees are salaried and are paid based upon the classification that they hold, "a change in the number of hours worked does not alter the salary they make or the amount of money the State must pay out from the State Treasury." He said:
 
"To be sure, the net effect of working more hours for the same pay on the individual level is a decrease in hourly pay, but such a decrease in 'calculated' pay is not what the pay plan procedures were implemented for.  The pay plan is a budgetary creature and is concerned with the 'actual' payroll. Since the pay plan is not in fact altered the procedures it requires are not at issue."

   As previously noted, the provisions of Article 64A, § 27(a)(1)(i) require that the Secretary "recommend to the Governor a pay plan for all classified and unclassified positions for which the Secretary has authority to administer pay." The section requires that the Secretary, in making his recommendations to the Governor, consider various criteria, [***28] including "working conditions," in establishing salary comparability and rates of pay; it also provides, in subparagraph (a)(1)(iv), that the Secretary, with the Governor's approval, "may amend the pay plan for specific classifications of positions in order to recruit or retain competent [*37] personnel or to ensure that compensation rates adequately compensate the skills, knowledge, effort, responsibility, and working conditions." n6 Subparagraph (a)(3)(v) provides that amendments to the pay plan shall be reported to the General Assembly by the 15th day of the next regular session of the Legislature.  It also provides that that body may reject amendments to the pay plan.

n6 Code, Article 64A, § 1(4) defines "class" to mean "a grouping of one or more positions sufficiently similar with respect to duties and responsibilities that the same descriptive title may be used to designate each position in that grouping and that the same general qualifications are needed for performance of the duties, that the same tests of fitness shall be used to select employees, and that the same rates of pay shall be applied to all positions in that grouping."

[***29]

   It was stipulated by the parties that no amendments to the salary plan were reported to the General Assembly in January of 1991.  It was also stipulated that employees in the 442 employment classifications [**100] in the State personnel system are paid on an annual basis; that in establishing rates of pay for these classifications in the salary plan, the hours worked by employees are not taken into consideration; and that as a consequence 40-hour employees receive the same salary as 35 1/2-hour employees working in the same classification.

   In its most basic form, it is the plaintiffs' argument that an increase in the hours of the work week is a "working condition" within the contemplation of Article 64A, § 27(a)(1)(i) which, because the increase results in a reduction of salaries, constitutes an amendment to the pay plan.  Hence, they say that this criteria for establishing rates of pay had to be factored into an amended pay plan and reported to the General Assembly before it could be implemented.

   The fiscal year 1991 State Budget documents show that the increase in the work hours resulted in a cost-savings through the denial of additional appropriations for new positions and by reducing [***30] overtime costs. The increased hours did not cause a reduction of any salaries within the [*38]pay plan.  Because there was no amendment to the pay plan, no notice to the General Assembly was required under § 27(a)(3)(v).  We, therefore, share Judge Thieme's conclusion that the Governor's Executive Order did not effectuate an amendment to the State pay plan. 

Jimmy Mike UNDERWOOD v. STATE of Maryland 
No. 56, September Term, 1991
 
Court of Appeals of Maryland
 
324 Md. 716; 598 A.2d 1207; 1991 Md. LEXIS 204

 December  9, 1991  
 December  9, 1991, Filed

   PRIOR HISTORY: [***1]  
Certiorari to Court of Special Appeals (Circuit Court for  Anne Arundel  County) Raymond G. Thieme, Jr., Judge.

COUNSEL: Sherrie B. Glasser, Asst. Public Defender (Stephen E. Harris, Public Defender, both on brief), Baltimore, for petitioner.

   Diane E. Keller, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., both on brief), Baltimore, for respondent.

JUDGES: Murphy, C.J., Eldridge, Rodowsky, McAuliffe, Chasanow and Karwacki, JJ., and Charles E. Orth, Jr., Judge of the Court of Appeals (retired), Specially Assigned.

OPINION: [*717] [**1207] ORDER

   The petition for writ of certiorari in the above entitled case having been granted and heard, it is this 9th day of December, 1991

   ORDERED, by the Court of Appeals of Maryland, that the writ of certiorari be, and it is hereby, dismissed with costs, the petition having been improvidently granted. 

Richard Junior WHITE and Adrian Raymond White v. STATE ofMaryland 
No. 149, September Term, 1990
 
Court of Appeals of Maryland
 
324 Md. 626; 598 A.2d 187; 1991 Md. LEXIS 198

 November  12, 1991  
 November  12, 1991, Filed

   PRIOR HISTORY: [***1]  
 
Certiorari to Court of Special Appeals (Circuit Court for  Anne Arundel  County); Eugene M. Lerner Judge.

DISPOSITION: JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED.  COSTS TO BE PAID BY PETITIONERS.

CORE TERMS:  rape, shield, cocaine, sex, van, probative value, sexual conduct, sexual, shield law, inflammatory, proffer, motive, bias, fiance, drove, proffered testimony, sexual activity, ulterior motive, admissibility, harassment, prosecutor, kidnapping, boyfriend, assault, proffered evidence, relevance, privacy, defense counsel, prejudicial, admissible

COUNSEL: Mark Colvin, Asst. Public Defender (Stephen E. Harris, Public Defender, both on brief), Baltimore, for petitioners.

   Ann N. Bosse, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., both on brief), Baltimore, for respondent.

JUDGES: Murphy, C.J., and Eldridge, Rodowsky, McAuliffe, Chasanow and Karwacki, JJ.

OPINIONBY: CHASANOW

OPINION: [*629] [**188] Richard Junior White and his cousin, Adrian Raymond White (the Whites), were charged with kidnapping a woman in Anne [**189]Arundel County, raping her in a van, and robbing her of four dollars she had in her purse.  At the trial, the Whites wanted to put on the witness stand a man who they said would testify that the victim had previously offered or exchanged sex for drugs.  The trial court refused, saying that such testimony would violate Maryland's rape shield statute, Maryland Code (1957, 1987 Repl.Vol.), Article 27, § 461A.  The statute reads:
 
"(a) Evidence relating to victim's chastity.  -- Evidence relating to a victim's reputation for chastity and opinion[***2] evidence relating to a victim's chastity are not admissible in any prosecution for commission of a rape or sexual offense in the first or second degree.  Evidence of specific instances of the victim's prior sexual conduct may be admitted only if the judge finds the evidence is relevant [*630] and is material to a fact in issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value, and if the evidence is:

   (1) Evidence of the victim's past sexual conduct with the defendant; or

   (2) Evidence of specific instances of sexual activity showing the source or origin of semen, pregnancy, disease, or trauma; or

   (3) Evidence which supports a claim that the victim has an ulterior motive in accusing the defendant of the crime; or

   (4) Evidence offered for the purpose of impeachment when the prosecutor puts the victim's prior sexual conduct in issue.
 
(b) In camera hearing.  -- Any evidence described in subsection (a) of this section, may not be referred to in any statements to a jury nor introduced at trial without the court holding a prior in camera hearing to determine the admissibility of the evidence.  If new information is discovered during [***3]the course of the trial that may make the evidence described in subsection (a) admissible, the court may order an in camera hearing to determine the admissibility of the proposed evidence under subsection (a)."
 
In an unreported opinion, the Court of Special Appeals affirmed the Whites' convictions.  We granted the Whites' petition for certiorari to consider whether the trial court correctly applied the rape shield law in excluding the proffered testimony. We believe that the trial court properly exercised its discretion and, therefore, affirm the judgments below.

   At trial, the victim, whom we shall identify only as "Nicole," testified that on the evening of December 19, 1988 she was at the home she shared with her fiance and their son.  At about midnight, when the rest of the household was asleep, she went to a local phone booth at the side of the street to make some calls.  While she was at the phone, a white van drove by, and one of its occupants asked her if [*631] she knew where any crack cocaine could be found.  Nicole told them she did not "do" drugs, and the van drove off.

   A short distance away, the van made a U-turn and came back.  This time, according to Nicole, the[***4] men jumped out and pulled her into the vehicle so harshly that she dropped the beer she was drinking, lost one of her shoes, and urinated in her pants.  The pair told her they would not kill her if she kept quiet.  After the van stopped, the men, for one to two hours, repeatedly raped her on the vehicle's back seat.  The men also took four dollars they found in her purse and released her near the spot where they had grabbed her.  Nicole returned home and banged on the door.  She told her fiance that she had been raped by two men.  Police later found Nicole's shoe in the street near the phone.

   The Whites admit that they were in a van with Nicole that night, but their version of what happened differs dramatically from hers.  Richard White testified that he picked up his cousin, Adrian, and drove to the Pioneer City area in Anne Arundel County to buy a video game from a friend of Adrian's.  He dropped Adrian off at the friend's house and drove away, planning to return to his home in Baltimore City.

   According to Richard, Nicole, whom he did not know, approached the van and asked for a ride to Freetown, another county neighborhood a few miles to the east.  After he told her he couldn't[***5] take her [**190] there, Nicole asked to be driven to Meade Village, a community next to Pioneer City; Richard agreed.  As they approached Meade Village, Nicole asked Richard for some cocaine. She then ducked down in the back of the van, telling Richard that her boyfriend's brother lived in the area.  Nicole then made "suggestive moves" and offered her body to Richard if he would buy her some cocaine. He declined the offer, saying he had a fiancee, two children, and a fear of AIDS.

   Eventually, Richard said, he bought about $35 worth of cocaine from two men, using some of his money and some [*632] that Nicole had put toward the purchase.  He made the drug buy, he claimed, because he felt sorry for Nicole. She consumed the cocaine, and he asked her if she still wanted to go to Freetown.  Now she wanted to go back to Pioneer City.  Nicole said she wanted more cocaine, and she resumed making "suggestive moves" and grabbed Richard's penis.  This time, Richard got excited but told her he wasn't going to engage in any sex because he didn't "bring any protection."

   Again, Richard said, they came across the two men who had sold him the drugs earlier.  This time Adrian was there arguing[***6] with the men.  Adrian got in, and the van pulled away.  They drove for about five or ten minutes and stopped in a wooded area.  They never found any more cocaine, and eventually Nicole asked to be let out at a school near Pioneer Village.  There was no sexual activity other than Nicole's "suggestive moves" and the grab at his penis, according to Richard.  He said Nicole was mad about not getting any additional drugs and told them that her boyfriend would be angry if he knew that she was using cocaine. Eventually Nicole got out near a school close to the spot where she had been picked up.

   Adrian White testified that, after he swapped the video game he had just acquired for what he thought was cocaine but turned out to be ground macadamia nuts, he began arguing with the fraudulent vendors.  During the argument, the white van driven by Richard returned.  He got in, he said, and saw Nicole. Adrian described her as "more hyper than upset"; she said she wanted cocaine, but they could not give her any.  They dropped her off at a school.

   Defense counsel wanted to put a final witness on the stand, a man named Luther Moore.  According to the proffer, "He is a witness who is familiar with [***7][Nicole and the area], and he's going to testify that he has previous occasions when he has known that [Nicole] has asked people to provide cocaine in return for sex." When the State objected, citing the rape shield law, defense counsel told the court that the evidence was being offered under the exception [*633]covering evidence supporting a claim that the victim has an ulterior motive in accusing the defendant of a crime.

   Defense counsel observed that the testimony's relation to sexual activity was "only peripheral in that she was going to provide her body in return for drugs." When the trial judge then asked whether Nicole had offered sex to Luther Moore, defense counsel expanded his proffer: "He's going to testify that he has had instances when she participated in sex with him for drugs." The judge sustained the prosecutor's objection.

   The case was submitted to the jury, which found the Whites guilty of first and second degree rape, assault with intent to rape, assault, kidnapping, and theft.  The trial court sentenced each of the Whites to life imprisonment for rape, one year consecutive for theft, and ten years consecutive for kidnapping. Convictions for the remaining charges[***8] were merged into the first degree rape convictions at sentencing.  A three-judge panel later amended the sentences to make the ten years for kidnapping to run concurrently with the life sentences.  The sole issue before us is the propriety of the trial court's refusal to admit the proffered defense testimony of Luther Moore.

   Rape shield statutes have been enacted in a number of states throughout the country.  One purpose of the statute is to protect rape victims from unscrupulous defense attorneys who try to shift the focus away from their clients and onto the vic[**191] tims. n1 See Stephens v. Morris, 756 F.Supp. 1137, 1142 (N.D.Ind.1991) ("The principal reason for the rape shield statutes is to shield victims of sex crimes from [*634] general inquiry into their past sexual conduct and to keep these victims from feeling that they are on trial."); Lucado v. State, 40 Md.App. 25, 35-39, 389 A.2d 398, 404-06 (1978); Galvin, Shielding Rape Victims in the State and Federal Courts: A Proposal for the Second Decade, 70 Minn.L.Rev. 763, 791-98 (1986); McCormick on Evidence, § 193 at 573-74 (E. Cleary 3d ed. [***9] 1984); 5 L. McClain, Maryland Evidence, § 412.1 at 449-50 (1987).

n1 These statutes are usually called "rape" shield laws, but in fact their scope includes a wider variety of sexual crimes.  While Maryland's version is titled, "Admissibility of evidence in rape cases," it has a broader application. By its express language, the statute's protections extend to trials in which the crimes alleged are other types of prohibited sexual acts as well as rape. See Maryland Code (1957, 1987 Repl.Vol., 1991 Cum.Supp.), Article 27, §§ 461(e), 461A(a), 464(a), and 464A(a).  See also Lucado v. State, 40 Md.App. 25, 29-30, 389 A.2d 398, 400-01 (1978). For simplicity's sake, however, we will continue to refer to our statute as a "rape" shield law.

   Another reason to protect rape victims from harassment on the witness stand has been to encourage more victims to report the crimes and help bring rapists to justice.  In analyzing its rape shield law, Mississippi's Supreme Court recently observed[***10] that the rule's purpose is
 
"to prevent defense counsel from putting the victim 'on trial,' from unfairly invading the victim's privacy and from deflecting the jury's attention from the true issue.  The rule reflects recognition that the trial process at best is traumatic to the victim of sexual abuse.  If she has reason to believe the most intimate details of her life are going to be bandied about the courtroom, many victims will decide the game is not worth the candle and decline to file a complaint."
 
Goodson v. State, 566 So.2d 1142, 1149-50 (Miss.1990). See also State v. Patnaude, 140 Vt. 361, 438 A.2d 402, 407 (1981) ("The restrictions on the admissibility of certain evidence imposed by the rape victim shield law will encourage reluctant rape victims to come forward and report the crime, encourage these same victims to testify in court against their assailant, and produce more prosecutions and convictions, and thus be a greater deterrent."); People v. Khan , 80 Mich.App. 605, 264 N.W.2d 360, 364 (1978) (Before the enactment of Michigan's rape shield statute, "countless victims, already [***11] scarred by the emotional (and often physical) trauma of rape, refused to report the crime or testify for fear that the trial proceedings would veer from an impartial examination of the accused's conduct on the date in question and instead take on aspects of an inquisition in which complainant would be required to acknowledge and [*635] justify her sexual past."); Johnson v. State, 146 Ga.App. 277, 246 S.E.2d 363, 365 (1978) ("[R]ape shield laws are intended generally to protect the complaining witness, thereby encouraging the reporting and prosecution of rapes . . . ."); Finney v. State, 179 Ind.App. 316, 385 N.E.2d 477, 480 (1979) (A legitimate state policy for rape shield laws "is that they will aid in crime prevention because victims, knowing that the statute protects them from the embarrassment of the introduction of evidence of previous sexual activity, will be encouraged to report rape offenses."); V. Berger, Man's Trial, Woman's Tribulation: Rape Cases in the Courtroom, 77 Col.L.Rev. 1, 54 (1977) (In addition to protecting the victim's privacy and sparing her undue harassment, rape shield [***12] laws "encourage the victim to report the assault and assist in bringing the offender to justice by testifying against him in court.  Insofar as the laws in fact increase the number of prosecutions, they support the government's aim of deterring would-be rapists as well as its interest in going after actual suspects." (Footnote omitted)).

   In 1978 Congress enacted Fed.R.Evid. 412, which was intended to accomplish the same purposes as its state counterparts, particularly "to protect rape victims from the degrading and embarrassing disclosure of intimate details about their private lives." Statement of Representative Mann, [**192] quoted in 2 J. Weinstein and M. Berger, Weinstein's Evidence, at 412-5 (1989).  Speaking for the proposed federal rule, Representative Holtzman said:
 
"Too often in this country victims of rape are humiliated and harassed when they report and prosecute the rape. Bullied and cross-examined about their prior sexual experiences, many find the trial almost as degrading as the rape itself. Since rape trials become inquisitions into the victim's morality, not trials of the defendant's innocence or guilt, it is not surprising that it is the least reported[***13] crime.  It is estimated that as few as one in ten rapes is ever reported."
 
[*636] Quoted in 2 Weinstein's Evidence, at 412-6.  See United States v. Cardinal, 782 F.2d 34, 36 (6th Cir.1986), cert. denied, 476 U.S. 1161, 106 S.Ct. 2282, 90 L.Ed.2d 724 (1986).

   The General Assembly originally enacted Maryland's statute in 1976 as part of a major revision of the state's sex offense laws. n2 In its report on the rape shield bill, the Senate Judicial Proceedings Committee said that it
 
"took cognizance of the broad based support of the concept of limiting evidence relating to prior sexual conduct of a rape victim and that such a limitation would probably result in an increase in the percentage of rapes reported; that a statutory response to the inherent sensitivities of a traumatized victim could accommodate the constitutionally mandated rights and protections properly afforded a defendant in our criminal justice system; and that the weighing of inflammatory nature versus the probative value of evidence of specific instances of prior sexual conduct precludes possible admission of highly prejudicial evidence[***14] of limited probative value. Presently, it is the practice of some courts to admit evidence of any probative value irrespective of its inflammatory nature."
 
Report of Senate Judicial Proceedings Committee on Senate Bill No. 399 at 4.

n2 For a discussion of the legislative history, see Lucado v. State, 40 Md.App. at 29-32, 389 A.2d at 400-02. See also Pitcher, Rape and Other Sexual Offense Law Reform in Maryland, 1976-1977, 7 Balt.L.Rev. 151-70 (1977), and the interim report of the Special Legislative Committee on Rape and Related Offenses (1977).

   The statute, however, is not inflexible.  The exceptions written into the law provide ways for a defendant to bring up a victim's conduct when necessary to the defense.  The Whites argue that Luther Moore's testimony about Nicole's prior sexual conduct fits the third exception to the rape shield statute, which permits evidence of prior sexual conduct if it "supports a claim that the victim has an ulterior motive in[***15] accusing the defendant of the crime." In order for them to succeed in getting that evidence to the jury, however, they must convince the trial judge first that [*637] it "is relevant and is material to a fact in issue," and second "that its inflammatory or prejudicial nature does not outweigh its probative value." Art. 27, § 461A(a).  A trial court's determination on relevance will not be reversed by an appellate court absent a clear showing that it abused its discretion.  Thomas v. State, 301 Md. 294, 317, 483 A.2d 6, 18 (1984), cert. denied, 470 U.S. 1088, 105 S.Ct. 1856, 85 L.Ed.2d 153 (1985). See also State v. Allewalt, 308 Md. 89, 101-02, 517 A.2d 741, 747 (1986).

   The Whites proffered that Luther Moore's testimony would establish Nicole's motives to make a false complaint of rape. Their first contention is that Nicole may have falsely accused them of rape because she was angry that they had not obtained more cocaine for her.  Her anger was the result of their failure to procure drugs, not their failure to trade drugs for sex. Even adopting the Whites' contention, [***16] it was not their declining Nicole's offer of sex that motivated the false charge; it was their declining her request for drugs. Any prior sexual acts or prior sexual solicitations by Nicole could have little, if any, relevance to her alleged anger at the Whites.  In addition, the fact that Nicole may have successfully offered or traded sex for drugs in the past does not tend to show that she would become enraged with the Whites for failing to supply her with drugs and declining her alleged sexual solicitation.  Luther Moore's [**193] testimony would have dubious relevance to establishing that Nicole had an ulterior motive to lie, whereas its prejudice to Nicole and the State would be extreme.

   The Whites also allege that Nicole might have fabricated a rape story so that her fiance would not get mad because she had been out smoking cocaine with two men.  Luther Moore's proffered testimony provides no support for this contention.  Whether Nicole may have smoked cocaine in the past is irrelevant to any alleged fear of her fiance's reaction if he ever found out that she had been smoking cocaine. In fact, Luther Moore's proposed testimony seems to run counter to this part of the Whites' [***17] argument, since [*638] the proffer contains the claim that Nicole had consumed cocaine in the past without reference to any fear she had of her fiance's reaction. n3 Proffered evidence of past sexual conduct must contain a direct link to the facts at issue in a particular case before it can be admitted.  Other courts have given some guidance for the instant case.  See, e.g., Hall v. State, 500 So.2d 1282, 1285-86 (Ala.Crim.App.1986) (Defense wanted to offer evidence that victim and her boyfriend had a sexual relationship in order to show that victim had a motive to fabricate the rape and justify her late return to her boyfriend; court held that such evidence is barred by rape shield statute); Com. v. Folino, 293 Pa.Super. 347, 439 A.2d 145, 149-50 (1981) (Statement of teenage, runaway victim to police officer a week after assault that she was "living with" truck driver did not show plan to engage in sex as means of support and was not admissible; also proffered evidence that victim approached another man prior to defendant and offered to engage in sex with him barred by rape shield statute despite defense claim that it would show[***18] a continuing course of conduct).

n3 Petitioners wisely abandon the argument they raised before the trial court that Moore would refute Nicole's testimony that she did not take drugs.  As the prosecutor noted, and the trial transcript shows, Nicole testified merely that she had told the strangers in the van she did not use drugs.

   What Luther Moore's testimony would do is paint a picture of the victim as an immoral person who sells herself for illegal drugs.  In that manner, the Whites might refocus the trial on Nicole's character, one of the results that the rape shield statute is meant to guard against.  Even if we were to assume that the proffered testimony may have had some relevancy, albeit minimal, the trial judge may exclude it under § 461A if its inflammatory or prejudicial nature outweighs its probative value, having due regard for the defendant's right of confrontation, right to present an effective defense and right to due process. Thomas v. State, 301 Md. at 318-19, 483 A.2d at 18-19;[***19] Annotation 1 A.L.R.4th 283 (1980). The testimony in question [*639] would have invited the jurors to stray into collateral matters that would have obscured the issues before them.  Its probative value, if any, was far outweighed by its prejudicial effect.  Lyba v. State, 321 Md. 564, 570-71, 583 A.2d 1033, 1036 (1991); Smallwood v. State, 320 Md. 300, 307-08, 577 A.2d 356, 359 (1990); State v. Cox, 298 Md. 173, 178, 468 A.2d 319, 321 (1983).

   The Whites contend that the trial judge failed to balance the inflammatory nature of the proffered evidence against its probative value. They are wrong. The transcript of the bench conference reveals that, as the prosecutor and defense lawyer started sparring over the proffer, the judge read the rape shield statute twice.  The second time, he specifically read out loud the section calling for him to balance the probative value of the evidence against its potential for prejudice.  After that, the two lawyers continued to debate before the trial court ruled.  It is apparent to us that the judge acted according to his responsibilities[***20] as outlined in the statute.

   An additional reason for rejecting the proffer of Luther Moore's testimony exists independent of the rape shield statute.  A trial judge has discretion in determining whether evidence is relevant to bias or motive. As we have already indicated, Nicole's alleged bias against the Whites was because they failed to supply her with drugs, not because they failed to [**194] have sexual relations with her.  Even if she had exchanged sexual favors for drugs in the past, it would not necessarily indicate that she would become enraged and vindictive if someone were unable or unwilling to trade drugs for sex. In fact, nothing in the proffer is at odds with Nicole's version of what happened.  Wide latitude must be given to a criminal defendant to establish bias or motive of a witness.  Smallwood v. State, 320 Md. at 307-08, 577 A.2d at 359. The trial judge, however, still has discretion in determining whether particular evidence is relevant to the issue of bias or motive. See McCormick on Evidence, § 40, which states: "The trial court has a great [*640] deal of discretion in deciding whether particular evidence indicates[***21] bias and prejudice." Id. at 87.

   The Whites also contend before this Court that the ruling deprived them of their constitutional right to present witnesses in their defense.  This argument was not made to the trial court and thus is not properly before us.  Maryland Rule 8-131(a); Henry v. State, 273 Md. 131, 139, 328 A.2d 293, 299 (1974).

   Even if the issue had been preserved for appellate review, we find no violation of the Whites' constitutional rights.  The United States Supreme Court recently upheld a notice requirement in Michigan's rape shield law. In doing so, the Court reiterated the principle that "'trial judges retain wide latitude' to limit reasonably a criminal defendant's right to cross-examine a witness 'based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant.'" Michigan v. Lucas, 500 U.S.   ,    , 111 S.Ct. 1743, 1746, 114 L.Ed.2d 205, 212 (1991), quoting Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 1435, 89 L.Ed.2d 674 (1986).[***22] The Court noted that the Michigan law "represents a valid legislative determination that rape victims deserve heightened protection against surprise, harassment, and unnecessary invasions of privacy." 500 U.S. at    , 111 S.Ct. at 1746, 114 L.Ed.2d at 212.

   Of course, the state's interest in excluding evidence must at times yield to a defendant's due process right to present a defense and 6th Amendment right to confront witnesses, especially where the proffered testimony has a direct link to the defendant or establishes a possible motive for the witness to implicate the defendant in a crime.  But with this in mind, the trial court in the proper exercise of discretion may exclude evidence under Art. 27, § 461A without offending a defendant's constitutional rights of confrontation and due process. Thomas v. State, 301 Md. at 318-19, 483 A.2d at 18-19.
 
   [*641] We hold that the trial judge did not abuse his discretion in excluding the proffered evidence. We therefore affirm the judgment of the Court of Special Appeals.

   JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED.  COSTS TO BE PAID BY PETITIONERS. 

Betty Lou HOWARD v. STATE of Maryland 
No. 6, September Term, 1990
 
Court of Appeals of Maryland
 
324 Md. 505; 597 A.2d 964; 1991 Md. LEXIS 190

 November  1, 1991  
 November  1, 1991, Filed

   PRIOR HISTORY: [***1]  
 
Certiorari to Court of Special Appeals (Circuit Court for  Anne Arundel  County); Eugene M. Lerner, Judge.

DISPOSITION: JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED; CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO REVERSE THE JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AND TO REMAND THE CASE TO THAT COURT FOR A NEW TRIAL ON ALL COUNTS; COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID BY ANNE ARUNDEL COUNTY.

CORE TERMS:  bottle, liquid, parsley, relevance, distribute, unfair, ounce, cigarette, flakes, legitimately, admissible, possessed, probative value, bag, possessor, evidence bearing, criminal agency, admissibility, reddish-brown, inadmissible, propensity, harmless, carrying, one-half, handgun, battery, street, purse, soda, foil

COUNSEL: George E. Burns, Jr., Asst. Public Defender (Alan H. Murrell, Public Defender, Victoria S. Keating, Asst. Public Defender, on brief), Baltimore, for petitioner.

   Diane E. Keller, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on brief), Baltimore, for respondent.

JUDGES: Murphy, C.J., and Eldridge, Rodowsky, McAuliffe and Chasanow, JJ.

OPINIONBY: McAULIFFE

OPINION: [*507] [**965] This case involves the admissibility of two items of "other crimes" evidence.  The defendant, Betty Lou Howard, was involved in a public altercation with Shirley Carter on 28 April 1988, in Edgewater, Maryland.  Anne Arundel County police officers were summoned to the scene, where they [*508] arrested the defendant and impounded her automobile.  A search of the defendant's automobile n1 produced, [***2] among many other items, an unloaded pistol from beneath the driver's seat, as well as phencyclidine (PCP), parsley flakes, a small reddish-brown bottle, and cigarette rolling papers from the rear passenger area.  The defendant was charged with possession of PCP, possession of PCP with the intent to distribute, carrying or transporting a handgun, assault, and battery. A jury of the Circuit Court for Anne Arundel County found the defendant guilty on all counts, and she was sentenced to 10 years without parole on the charge of possession of PCP with intent to distribute, a two-year concurrent term for battery, and a consecutive two-year term for the handgun conviction. n2 The Court of Special Appeals affirmed in an unreported opinion, and we granted certiorari to consider the following question:

   Did the court below err in holding that evidence of prior bad acts on the part of a defendant, which tends to show that [s]he is in the "habit of selling" drugs, is relevant as proof of the defendant's intent in a case charging the possession of drugs with the intent to distribute them; and did the court further err in holding that admission of the contested evidence in the instant case was[***3] in any event harmless?

n1 The defendant challenged the legality of the search in the trial court and in the Court of Special Appeals, without success.  She did not seek certiorari on that issue, and it is not before us.

n2 The trial judge held that the charge of simple possession merged into the greater offense of possession with intent, and similarly, that the assault merged into the battery.

   The two items of "other crimes" evidence introduced by the State, purportedly as evidence of the defendant's intent, involve 1) [**966] 4902*966endant's conviction of possession of PCP with the intent to distribute on 9 July 1986, and 2) the alleged sale of PCP by the defendant to Shirley Carter two days before the incident in question, as well as related matters testified to by Shirley Carter.  The defendant argues [*509] that evidence of her conviction more than 21 months before the incident involved in this case was clearly inadmissible because it showed nothing more than propensity for criminal activity, and its[***4] potential for unfair prejudice substantially outweighed any probative value it may have had.  She concedes that evidence of her sale of PCP two days before the incident presents a "much, much closer" case for admissibility, but argues it is inadmissible as well.  To fully consider the issues, a more detailed explanation of the facts is in order.

   I.

   In April of 1988, the defendant and Shirley Carter lived within a block of each other in the Woodland Beach community of Edgewater.  Their versions of what occurred on 28 April 1988, and indeed on earlier occasions, are widely disparate.  Neither version inspires great confidence in its accuracy.
 
   Shirley Carter testified to the following events.  At about 6:00 p.m. on 18 April she was preparing to leave her home to purchase beer, when she found her driveway blocked by the defendant's automobile.  She asked the defendant "what in the hell" she was doing there.  The defendant, seated behind the wheel of her car, held up some money and said she had come to return the money she had taken from Ms. Carter's daughter.  Ms. Carter went to the car to retrieve the money, but as she grabbed for it, the defendant locked her teeth onto Ms. Carter's [***5]arm and began to move the vehicle forward, carrying Ms. Carter with it.  Ms. Carter's aunt saw this activity and attempted to assist by entering the defendant's car from the passenger side, but the defendant was able to use her foot to pin the aunt's neck against the windshield, apparently all the while maintaining her grip on Ms. Carter's arm.

   Ms. Carter was finally able to remove the keys from the ignition, after which the defendant alighted from the vehicle, crying and saying: "Why are you doing this to me?" [*510] As the defendant walked away from her car, she was carrying a 7-Up bottle inside a "Crown Royal" bag, and she began dumping the contents of the bottle onto the ground as she walked, saying: "Don't take it away from me." Ms. Carter, who admitted she was a user of PCP at the time of the incident, recognized the odor of the liquid as PCP.

   The defendant then returned to her car, with the soda bottle and Crown Royal bag still in her possession, but Ms. Carter was unable to see what the defendant did with those objects after she entered the vehicle.  At some point the defendant said she had her handgun with her, and she briefly "pulled it out," without pointing it at anyone, [***6] then appeared to attempt to hide it.

   Ms. Carter further testified that she had known the defendant for about a year.  She was permitted to testify, over the defendant's objection, that she had purchased PCP from the defendant in the past; that she saw the defendant sell PCP, in liquid form n3 and on parsley flakes, at the defendant's home two days before the incident and that the defendant "usually carried" her liquid PCP in a soda bottle within a Crown Royal sack with a drawstring.

n3 Although the witness testified she had seen the defendant sell PCP in liquid form, she explained that "liquid form" meant cigarettes dipped into liquid PCP.  It is not clear from the record whether the witness claims to have seen the defendant dip the cigarettes she allegedly sold.

   The defendant gave a different version.  She said she traveled to Kentucky about 16 April 1988, and returned on 26 April to find that her television, VCR, and purse had been stolen.  She had seen Shirley Carter on the morning of 28 April at the defendant's [***7] home.  They argued, because Ms. Carter was angry that the defendant had testified against Ms. Carter's friend two days before.  The defendant spent most of the day of 28 April packing and moving from her home.  Although many of her possessions had been transported by truck, [**967]she had loaded the remainder in her automobile.
 
   [*511] The defendant was taking a young girl home when she stopped near Ms. Carter's home to talk to two male friends.  Ms. Carter came to her car and began to argue with her.  At some point, the defendant grabbed her purse from Ms. Carter -- the purse the defendant said had been stolen from her.  Ms. Carter, Ms. Carter's husband, and another man then dragged her from the car and beat her.  While someone was holding her on the ground, she saw people going in and out of her car, and saw Ms. Carter's husband take a shotgun from the car. After they let her up, she went to a nearby home and asked someone to summon the police.

   The defendant denied having ever seen, or been in possession of, the Crown Royal bag and the 7-Up bottle with PCP in it, or the foil packet of PCP-laced parsley that was later taken from her car by the police.  She admitted the pistol[***8] was hers, but said she had packed it in the rear portion of the car, in the manufacturer's box. n4 The defendant testified that she had only known Shirley Carter since 14 April 1988.  She denied selling PCP to Ms. Carter. 

n4 The empty manufacturer's box was found in the rear of the vehicle.

   Police officers who arrived on the scene described the defendant as "dazed," "almost incoherent," having bloodshot and dilated eyes, apparently unable to comprehend what was occurring, and "either intoxicated or high on something." The defendant first testified that she might have been "high" on PCP because she had taken a few "drags" from a cigarette offered to her earlier that morning by Shirley Carter, without knowing the cigarette contained PCP.  She later said she was not "high," but was dazed from the beating she had been given.  The police testified they observed a visible bite mark on Ms. Carter's upper arm.

   Police officers who conducted the search of the defendant's vehicle testified that they had removed a large assortment[***9] of personal items, suitcases, clothing, household goods, and the like.  From the area behind the driver's seat, on top of a pile of other items, but visible as soon as the car [*512] door was opened, they removed a Crown Royal cloth bag containing a 7-Up bottle with liquid contents.  Subsequent analysis disclosed the contents to be approximately one and one-half ounces of liquid PCP.  From the hatchback area of the Mustang automobile the police removed, along with many other items, four jars of parsley flakes, a jewelry-type box containing a foil packet of parsley flakes, and a pack of Zigzag rolling papers.  From an unidentified location within the vehicle, the police removed a small reddish-brown bottle similar to those commonly used to package food coloring.

   Officer Dennis Howell testified as an expert on controlled dangerous substances.  He said that an ounce and one-half of liquid PCP would be sufficient to coat four and one-half to six ounces of parsley flakes; that liquid PCP had a street value of between two hundred and five hundred dollars per ounce; that if the 16-ounce soda bottle were full of PCP it would have a street value of between eight and ten thousand dollars; [***10] that PCP is often packaged in green bottles to disguise it as a soft drink; and that bottles similar to the small reddish-brown bottle found in the defendant's vehicle are often used to sell one or two ounce quantities of liquid PCP.  He described the contents of the small foil package as parsley laced with PCP, having a street value of ten to twenty dollars.

   During cross-examination of the defendant, the State introduced, over objection, evidence that the defendant had been convicted of possession of PCP with intent to distribute on 9 July 1986.  In colloquy with the court following the defendant's objection, the prosecutor made it clear he was not offering this evidence for impeachment of the witness's credibility, but as evidence bearing on the defendant's intent in possessing the PCP.  The trial judge later instructed the jury they could consider this evidence only on the question of the defendant's intent. [**968]

   II.

   We discussed certain of the principles governing admissibility of evidence of "other bad acts" in Harris v. [*513] State, 324 Md. 490, 597 A.2d 956 (1991), filed today.  We there held that evidence of the defendant's conviction [***11]of possession of heroin with intent to distribute was not admissible as evidence of the defendant's intent with respect to cocaine possessed more that 21 months later, because that evidence possessed no special relevance or link to the crime charged, and was merely evidence of criminal character.  Id. at 504, 597 A.2d at 964. We perceive no significant difference between the evidence offered in Harris and the evidence of the earlier conviction in this case.  Here, as there, the State offered the evidence as bearing on the question of the defendant's intent, and the evidence simply is not sufficiently probative of that issue.  Upon the authority of Harris, and the earlier authority of Ross v. State, 276 Md. 664, 350 A.2d 680 (1976), we hold that the evidence of the 1986 conviction was inadmissible.

   III.

   The more difficult question presented by the facts of this case involves the testimony of Shirley Carter that she purchased PCP from the defendant two days before the events of 28 April, as well as at other times during the preceding year, and that the defendant usually carried her liquid PCP in a 7-Up bottle within[***12] a Crown Royal bag.

   We said in State v. Faulkner, 314 Md. 630, 634, 552 A.2d 896 (1989):

   Evidence of other crimes may be admitted, however, if it is substantially relevant to some contested issue in the case and if it is not offered to prove the defendant's guilt based on propensity to commit crime or his character as a criminal.
 
To the same effect, the Court of Special Appeals stated in Waddell v. State, 65 Md.App. 606, 610, 501 A.2d 865 (1985), that
 
evidence of other crimes is admissible when the evidence is substantially relevant for some other purpose than to [*514] show that the accused committed the crime on trial because of his criminal character.
  
If this defendant had testified that she had never seen PCP, and was totally unaware of its appearance or aroma, direct evidence that she had handled and sold PCP would have relevance transcending mere propensity. That, however, is not the case.  The defendant never denied her familiarity with drugs in general, or with PCP in particular.  Rather, she admitted she was familiar with drugs, but contended the PCP and parsley found in her vehicle were not [***13] hers, and had been placed there by others. n5

n5 The defendant testified that she left her automobile in the care of others while she was in Kentucky.  She implied that those persons, or perhaps others who were in and out of her vehicle while she was being beaten, may have "planted" the PCP and parsley. She suggested their motive may have been revenge for her having accused them of stealing from her, or retribution for her testimony against their friend.

   Under some circumstances, where intent is legitimately an issue in the case, and where by reason of similarity of conduct or temporal proximity, or both, evidence of other bad acts may possess a probative value that outweighs the potential for unfair prejudice, the evidence may be admissible. Harris v. State, supra, 324 Md. at 496, 597 A.2d at 958; Anaweck v. State, 63 Md.App. 239, 492 A.2d 658 (1985).

   We conclude that intent was legitimately an issue in this case.  The defendant was charged with possession[***14] with the intent to distribute, an offense requiring proof of a specific intent.  The mere fact of the charge is not dispositive, for it may be that in a given case the intent of the possessor is never in question, but the identity of the possessor is.  In a case such as that, where the intent of the possessor is conceded or at least never legitimately in doubt, the State may not in the guise of proving intent be permitted to offer evidence intended and likely to have a different effect. Here, although the principal defense was that the defendant had no knowledge of the existence of [*515] PCP in her [**969] vehicle, the defendant did not concede that if she were in possession she would have had the requisite intent.  In fact, she argued that if the jury should find against her on her principal defense, they should nevertheless find the State's evidence insufficient to prove an intent to distribute. The issue of intent was real, and the State's other evidence bearing on that issue was not so compelling as to require a finding by the trial judge that there was no necessity for additional evidence bearing on intent.  See State v. Faulkner, supra, 314 Md. at 640-43, 552 A.2d 896[***15] (discussing the issue of "necessity" with respect to the admissibility of evidence of other bad acts).

   Nor was there any basis to exclude the proffered evidence on the ground that it was so complex, or doubtful, or time-consuming that the game was not worth the candle.  The witness who could provide the evidence was on the stand, prepared to testify on personal knowledge, with testimony that would take only a very few minutes.  The sole question concerning the quality of the proof was whether the jury would believe the witness or would believe the defendant, and that is basically the question that dominates this case.  Clearly, if the jury believed the witness the evidence of a prior sale would be clear and convincing. 

   In evaluating the evidence offered through Ms. Carter, we keep in mind the single basis for admissibility advanced by the State -- the use of the evidence to aid the jury in finding the intent of the defendant in the event they should find her to have been in knowing possession of PCP.  We conclude that a part of the evidence of other bad acts given by Ms. Carter had a special relevance to the question of intent, and a part did not.  Specifically, we find that evidence [***16] of a sale of PCP by the defendant two days before the possession in question had special relevance to and a clear connection with her intent on the later occasion.  We do not ascribe the same probative value to evidence of other alleged sales of PCP at unspecified times within the previous year, and we conclude that this evidence should not [*516] have been admitted. Additionally, testimony that the defendant "usually" possessed PCP in containers similar to those found in her vehicle, while possibly possessing some relevance on the question of possession, n6 does not address the defendant's intent, and should not have been admitted on that basis.

n6 When evidence of similar conduct is offered to prove that the defendant is the criminal agent, the potential for unfair prejudice is particularly high, and we have consistently required a very strong showing of relevance. State v. Faulkner, 314 Md. 630, 638-40, 552 A.2d 896 (1989).

   We turn to the question of balancing the probative value[***17] of the evidence we have found to have special relevance against its potential for unfair prejudice.  In cases in which criminal agency is contested, there may exist a heightened potential for unfair prejudice that was not present in Harris .  In Harris, the defendant conceded he was the person who possessed the cocaine -- the only question was his intent.  When, however, the defendant contests criminal agency, there is a danger that evidence legitimately advanced for consideration of intent may be misused by the jury in its determination of criminal agency. We find that under the particular facts of this case, the potential for unfair prejudice is not particularly high.  Evidence of the prior sale came from the same witness who gave testimony almost diametrically opposed to that of the defendant.  If the jury chose to reject the testimony of Ms. Carter as to how this incident occurred, it is likely they would reject as well her testimony concerning the alleged prior sale.  Thus, we do not have the situation of evidence of other bad acts coming from an independent source and influencing the decision of whom to believe in a close case.  We conclude the trial judge did not err[***18] in finding that the relevance of this testimony was not outweighed by its potential for unfair prejudice.  The evidence concerning the alleged sale of PCP by the defendant to Shirley Carter two days before the incident in question was properly admitted.

   [*517] [**970] IV.
 
   The Court of Special Appeals, although holding the evidence of other bad acts admissible, observed that "even if the testimony of the appellant's prior conviction of distribution of PCP was admitted in error, we believe beyond a reasonable doubt that it was harmless." The State has not argued harmless error as a ground for sustaining the convictions, and we do not conclude that the error was harmless. In a case that largely turned on whom the jury was going to believe, the improperly admitted evidence of the defendant's prior conviction may have been the weight which caused the jurors to accept one version rather than the other.  Under the facts of this case, that error may well have influenced the jury's decision on all charges, and the error can be rectified only by granting a new trial.

   JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED; CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO REVERSE THE JUDGMENT[***19] OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AND TO REMAND THE CASE TO THAT COURT FOR A NEW TRIAL ON ALL COUNTS; COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID BY ANNE ARUNDEL COUNTY. 

MOTOR VEHICLE ADMINISTRATION v. Bruce Clayton SHRADER.MOTOR VEHICLE ADMINISTRATION v. Sharon Lee KELLER.  Jeffrey Paul LARKIN v. MOTORVEHICLE ADMINISTRATION 
Nos. 4, 5, 49 September Term, 1991
 
Court of Appeals of Maryland
 
324 Md. 454; 597 A.2d 939; 1991 Md. LEXIS 188

 October  31, 1991  
 October  31, 1991, Filed

   SUBSEQUENT HISTORY: [***1]

   As Corrected November 25, 1991.

PRIOR HISTORY:  
 
Certiorari to Circuit Court for Harford County; Maurice W. Baldwin, Jr., Judge, in No. 4 Sept. Term, 1991.

   Certiorari to Circuit Court for  Anne Arundel  County; Bruce C. Williams, Judge, in No. 5 Sept. Term, 1991.

   Certiorari to Circuit Court for Prince George's County, Joseph S. Casula, Judge, in No. 49 Sept. Term, 1991.

DISPOSITION: JUDGMENT OF THE CIRCUIT COURT OF PRINCE GEORGE'S COUNTY IN No. 49 AFFIRMED; COSTS TO BE PAID BY APPELLANT.  JUDGMENTS OF THE CIRCUIT COURTS FOR ANNE ARUNDEL COUNTY IN No. 5 AND HARFORD COUNTY IN No. 4 REVERSED; CASES REMANDED TO THOSE COURTS WITH INSTRUCTIONS TO AFFIRM THE JUDGMENTS OF THE OFFICE OF ADMINISTRATIVE HEARINGS; COSTS IN THIS COURT AND IN THE CIRCUIT COURTS FOR ANNE ARUNDEL COUNTY AND HARFORD COUNTY TO BE PAID BY APPELLEES.

CORE TERMS:  license, driver, scheduling, temporary, suspension, postponement, administrative hearing, drive, scheduled, order of suspension, licensee, mandatory, non-compliance, issuance, detained, administrative law, police officer, detention, legislative history, subpoena, driving, statutory scheme, appropriate sanction, drunken driving, drunk, suspended, legislative intent, prescribed period, suspected, drunk driver

COUNSEL: Edward R.K. Hargadon, Asst. Atty. Gen., J. Joseph Curran, Jr., Atty. Gen., on brief, Glen Burnie, for Motor Vehicle Admin.

   No brief filed for Shrader.

    Corrie S. Galvin, Cohen, Snyder, McClellan, Eisenberg & Katzenberg, P.A., on brief, Baltimore, for Keller.

   Karl H. Gordon, Robert A. Ades & Associates, on brief, Landover, for Larkin.

JUDGES: Murphy, C.J., and Eldridge, Rodowsky, McAuliffe, Chasanow, Karwacki [***2]and Robert M. Bell, JJ.  Robert M. Bell, Judge, dissenting.  Judges Eldridge and Chasanow, join in the views expressed herein.

OPINIONBY: KARWACKI

OPINION: [*456] [**940] These three cases require our construction of Maryland Code (1987, 1991 Cum.Supp.), § 16-205.1 of the Transportation Article, which under certain circumstances authorizes [*457] the suspension of driving privileges when a licensee is detained on suspicion of drunken driving. Specifically, we are called upon to determine whether dismissal of an order of suspension is a proper sanction when the Motor Vehicle Administration (MVA) n1 fails to comply with the provisions of § 16-205.1(f)(5)(i) by scheduling a hearing to challenge the suspension more than 30 days after its receipt of a hearing request submitted by the licensee.

n1 At the time that these cases arose, scheduling of hearings was a function of the MVA.  That responsibility has since been transferred to the Office of Administrative Hearings (OAH), created by Ch. 788 of the Acts of 1989, codified as Md.Code (1984, 1991 Cum.Supp.), §§ 9-1601 to -1610 of the State Government Article.  This fact does not affect the disposition of these cases.

[***3]

   I.

   On June 17, 1990 at 3:07 a.m., Appellant, Jeffrey Paul Larkin, was stopped by a Maryland State Trooper in Prince George's County for suspected drunken driving. Larkin was advised of his right under § 16-205.1 of the Transportation Article to take or refuse a chemical test to determine the concentration of alcohol in his blood, and of the consequences of his decision.  After Larkin refused to submit to the test, the trooper confiscated Larkin's driver's license and issued him an officer's certification and order of suspension, which also served as a temporary driver's license, allowing Larkin to continue to drive for 45 days after its issuance, or until completion of an administrative hearing at which Larkin could demonstrate why his license should not be suspended.

   Larkin timely completed a request for a hearing to challenge the suspension of his license and mailed it to the MVA.  That request was received by the MVA on June 25, 1990.  A hearing was scheduled before an administrative law judge of the OAH for July 27, 1990, 32 days after MVA's receipt of Larkin's hearing request.  Larkin's temporary license was scheduled to expire August 1, 1990, five days after his administrative[***4] hearing was held.

   [*458] On July 27, 1990, Larkin appeared for his administrative hearing and filed a motion to dismiss the suspension order on the basis of MVA's failure to schedule a hearing date within 30 days from the date Larkin filed his hearing request, as required by § 16-205.1(f)(5)(i) of the Transportation Article.  The administrative law judge denied Larkin's motion and suspended his license to drive for 120 days.

   [**941] Larkin filed an appeal to the Circuit Court for Prince George's County and the suspension was stayed pending the outcome of the appeal.  The circuit court judge affirmed both the denial of the motion to dismiss and the decision of the administrative law judge to suspend Larkin's license.

   The case involving Appellee, Bruce Clayton Shrader, followed a similar course.  On the night of April 20, 1990 at 10:44 p.m., Shrader was detained by a police officer for suspected drunken driving in Harford County.  Shrader was advised of his rights with regard to taking a chemical test and refused to submit to the test.  As a result, the trooper seized Shrader's driver's license and served him an order of suspension and a temporary license authorizing him to drive[***5] for 45 days after its issuance, or until completion of an administrative hearing to determine whether the suspension was warranted.

   Shrader filed a timely request for an administrative hearing which was received by MVA on April 24, 1990.  The MVA scheduled the hearing regarding Shrader's refusal to take the test on May 25, 1990, 31 days after MVA had received the request for hearing.  At the administrative hearing, Shrader moved to dismiss the order of suspension on the basis that the hearing was not held within 30 days of the date that the request was received, as provided in § 16-205.1(f)(5)(i).  The motion was denied by the administrative law judge, who stated that unless Shrader could show any harm, the untimely scheduling of the hearing did not require a dismissal.  At the conclusion of the hearing, Shrader's license was suspended for 120 days.

   [*459] Shrader filed a timely appeal to the Circuit Court for Harford County and the suspension was stayed pending the outcome of the appeal.  On appeal, the circuit court ruled that the requirement that a hearing be scheduled within 30 days of receipt of the request was mandatory, and that although Shrader was not prejudiced, MVA's[***6] non-compliance nevertheless required reversal of the suspension.

   Similarly, late in the evening of April 20, 1990 and the early morning of April 21, 1990, Appellee, Sharon Lee Keller, was detained by a police officer for suspected drunken driving in Anne Arundel County.  Keller was advised of her right to take or refuse a chemical test, and the attendant administrative consequences.  She declined to take such a test, and as a result, her driver's license was confiscated and she was presented an order of suspension and a temporary license, which authorized her to drive for 45 days or until completion of an administrative hearing to determine the validity of the suspension.

   Keller timely requested an administrative hearing which was received by the MVA on April 23, 1990.  Her hearing was scheduled for May 25, 1990, 32 days after MVA had received the request for hearing.  At the administrative hearing, Keller moved to dismiss the suspension on the ground that the hearing had not been scheduled within the requisite 30 days, as provided in § 16-205.1(f)(5)(i). The motion was denied by the administrative law judge, and Keller's license was suspended for 120 days.
 
   On appeal to the Circuit[***7] Court for Anne Arundel County, the court ruled that the requirement that a hearing be scheduled within 30 days of the receipt of the request was mandatory and that MVA's non-compliance required a dismissal of the suspension, even though Keller had not been prejudiced by the delay.

   We granted certiorari to review the judgments of the circuit courts in these cases to determine whether dismissal is the proper sanction for the MVA's failure to provide a hearing to challenge the order of suspension within 30 days.

   [*460] II.

   In 1988, the General Assembly established a Task Force on Drunk and Drugged Driving because "[t]he problem of drunk and drugged driving is of continuing concern to the citizens of the State of Maryland." Joint Resolution No. 15 of the Acts of 1988.  The Task Force was charged, inter alia, with:
[**942]

   "(1) Examining methods of increasing the effectiveness of the remedies currently available for combatting drunk and drugged driving;

   "(2) Examining remedies developed by other states and jurisdictions to deal with the problem of drunk and drugged drivers; [and]

   "(3) Recommending changes and additions to current laws and regulations dealing with drunk and [***8] drugged drivers."
 
Id.

   In its interim report issued in December of 1988, the Task Force recommended that the General Assembly enact what it referred to as an administrative per se law which would provide "for the prompt suspension of the driver's license of an individual who, upon being detained by a police officer on suspicion of driving or attempting to drive while under the influence of alcohol or while intoxicated, either: 1) Refused to take a BAC [blood alcohol concentration] test; or 2) Submitted to the BAC test, and the results exceeded a statutorily defined limit." Task Force on Drunk and Drugged Driving, Interim Report to the General Assembly, at 6 (1988).  The General Assembly responded during its next session by amending § 16-205.1 of the Transportation Article, which generally provided that a person who drives on Maryland highways is deemed to have consented to take a chemical test to determine the alcohol content of his or her blood if detained on suspicion of driving while under the influence of alcohol. Ch. 284 of the Acts of 1989.  Under that amendment to § 16-205.1, when an individual is detained for suspected drunken driving, the detaining police [*461][***9] officer is required to advise the person of the administrative sanctions that shall be imposed for refusal to take the test or for test results indicating a blood alcohol concentration of 0.10 or more.  § 16-205.1(b)(2)(iii).  If the driver refuses to take the test, the police officer shall confiscate the person's Maryland driver's license, personally serve an order of suspension on the person, and issue a temporary license to drive. § 16-205.1(b)(3).  The temporary license which the detaining police officer is required to issue to the driver expires on the 46th day after the driver was detained. Id. This section, until amended during the 1990 session of the General Assembly, permitted the driver who refused the test to request an administrative hearing to challenge the suspension by filing a request with the MVA within 10 days after he or she was detained by the police officer. n2 Failure to request a hearing within 10 days from detention precludes the driver from having an administrative hearing, n3 and allows MVA to issue an order suspending the driver's license for 120 days for a first offense.  § 16-205.1(b)(1)(i)2.A.

n2 The issues raised in such a hearing are limited to the following: (1) whether the police officer had reasonable grounds to believe that the person was driving or attempting to drive while intoxicated, under the influence of drugs or alcohol, or in violation of an alcohol restriction; (2) whether there was evidence of drug or alcohol consumption; (3) whether the police officer requested a test after the person was fully advised of the potential administrative sanctions that could be imposed; (4) whether the person refused to take the test; (5) whether the person drove or attempted to drive while having an alcohol concentration of 0.10 or more; and, (6) if the hearing involves disqualification of a commercial driver's license, whether the person was operating a commercial motor vehicle.  § 16-205.1(f)(7)(i).

[***10] 

n3 This section was amended during the 1990 session to permit the driver 30 days from the date of detention to request a hearing.  § 16-205.1(f)(6)(i)1. However, under the amended section, unless the driver requests the hearing within 10 days from the date of detention, the 45 day period during which the driver is authorized to drive will not be extended.  § 16-205.1(f)(6)(ii).  The 10 day requirement for requesting a hearing does not require the request to have reached the MVA by the 10th day from the date of detention, as long as the request is postmarked on or before the tenth day.  § 16-205.1(f)(2).

   [*462] Section 16-205.1(f)(5)(i) of the Transportation Article provides that:
 
"If the person requests a hearing at the time of or within 10 days after the issuance of the order of suspension . . . the Administration shall set a hearing for a date within 30 days of the receipt of the request."
 
[**943] The licensees in the instant cases filed a hearing request within 10 days of the issuance of the order of suspension and were provided a hearing 31 or 32 days after the MVA received the [***11] requests, rather than within 30 days.  The MVA admits that although it formerly made, and OAH now makes, every effort to comply with the mandatory duty to schedule a hearing within 30 days, occasionally, due to a backlog in scheduling or administrative oversight, the 30 day requirement cannot be met.

   III.

    While a statute or rule may dictate a mandatory duty on the part of any agency or party, non-compliance with that statute or rule does not necessarily require a dismissal of the case.  In re Keith W., 310 Md. 99, 104, 527 A.2d 35, 37 (1987). Thus, we must examine the provisions of § 16-205.1 which are silent as to any sanctions to be imposed for non-compliance with the 30 day scheduling requirement, to determine whether dismissal of the order of suspension is a proper sanction when the MVA fails to schedule a hearing date within 30 days of its receipt of a hearing request.

   The cardinal rule of statutory construction is to ascertain and effectuate legislative intent. Jones v. State, 311 Md. 398, 405, 535 A.2d 471, 474 (1988). Because the language of the statute is the primary source of legislative intent, State v. Fabritz, 276 Md. 416, 421, 348 A.2d 275, 278 (1975),[***12] cert. denied, 425 U.S. 942, 96 S.Ct. 1680, 48 L.Ed.2d 185 (1976), the words of the statute must be given their ordinary and natural meaning.  NCR Corp. v. Comptroller, 313 Md. 118, 124, 544 A.2d 764, 767 (1988).

   [*463] On the other hand, the plain meaning rule is not rigid and does not force us to read legislative provisions in rote fashion and in isolation, Kaczorowski v. City of Baltimore, 309 Md. 505, 514, 525 A.2d 628, 632 (1987). One equally well-settled principle of statutory interpretation is that a statute is to be construed reasonably with reference to the purpose, aim or policy of the legislature reflected in that statute.  Id. at 513, 525 A.2d at 632. Additionally, a statute must be construed in context; "[t]he 'meaning of the plainest language' is controlled by the context in which it appears." Id. at 514, 525 A.2d at 632 (quoting Guardian Life Ins. v. Ins. Comm'r, 293 Md. 629, 642, 446 A.2d 1140, 1147 (1982)); NCR Corp., 313 Md. at 125, 544 A.2d at 767. [***13]Thus, when construing a provision that is part of a single statutory scheme, the legislative intent must be gleaned from the entire statute, rather than from only one part.  Jones, 311 Md. at 405, 535 A.2d at 474. Also, legislative reports and other pertinent legislative history may help to provide the appropriate context.  Kaczorowski, 309 Md. at 515, 525 A.2d at 632-33.

   In any event, "results that are unreasonable, illogical or inconsistent with common sense should be avoided whenever possible consistent with the statutory language, with the real legislative intention prevailing over the intention indicated by the literal meaning." Potter v. Bethesda Fire Dep't, 309 Md. 347, 353, 524 A.2d 61, 64 (1987) (quoting Fabritz, 276 Md. at 422, 348 A.2d at 279).

   Furthermore, when determining whether a case should be dismissed for non-compliance with a statute or rule, we have established a number of factors to be included in the analysis.  First and foremost, the purpose and policy of the statute or rule must be considered in determining the appropriate sanction. [***14] Gaetano v. Calvert County, 310 Md. 121, 125-26, 527 A.2d 46, 48 (1987); State v. Werkheiser, 299 Md. 529, 533, 474 A.2d 898, 900 (1984); Maryland St. Bar Ass'n v. Frank, 272 Md. 528, 533, 325 A.2d 718, 721 (1974).

   [*464] We have consistently recognized that the statutory provisions enacted to enforce the State's fight against drunken driving, namely Md.Code (1989, 1991 Cum.Supp.), § 10-302 to -309 of the Courts and Judicial Proceedings Article and § 16-205.1 of the Transportation Article, were enacted for the protection of the public and not primarily for the protection of the accused. State v. Moon, 291 Md. 463, 477, 436 A.2d 420, 427 (1981); Werkheiser, 299 Md. at 536-37, [**944] 474 A.2d at 902. The General Assembly's goal in enacting the drunk driving laws, as stated by Judge Cole in Willis v. State, 302 Md. 363, 488 A.2d 171 (1985), is "to meet the considerable challenge created by this problem by enacting a series of measures to rid our highways of the drunk driver menace.  These[***15] measures, some of which are decades old, are primarily designed to enhance the ability of prosecutors to deal effectively with the drunk driver problem." Id. at 369-70, 488 A.2d at 175.

   In 1989, the General Assembly enacted the administrative per se law recommended by the Task Force, rewriting § 16-205.1 of the Transportation Article to allow a person's driver's license to be promptly suspended for suspected drunken driving if the person refused a test for blood alcohol concentration.  Ch. 284 of the Acts of 1989.  The legislative history of Chapter 284 (House Bill 556) indicates that the General Assembly's desire for swift and certain action against drunk drivers was balanced with concern for the administrative needs of the MVA.  While House Bill 556 was under consideration, Delegate David B. Shapiro requested advice on the validity of the summary suspension provisions of the bill from the Attorney General's Office of Counsel to the General Assembly.  In response, Assistant Attorney General Kathryn M. Rowe wrote:
 
"You have . . . asked whether any provision is made for a stay of suspension if the hearing cannot be held within 45 days . . . .  [N]o[***16] stay of suspension is provided if the hearing cannot be held within 45 days because the licensee is unable to attend.  A stay is available, however, if the Administration is unable to provide a hearing within [*465] 45 days . . . . The administration 'shall' set the hearing for a date within 30 days of the receipt of the request, but if a hearing cannot be provided within 30 days, the suspension is stayed until a hearing is provided."
 
Letter from Assistant Attorney General Kathryn M. Rowe to Delegate David B. Shapiro (Feb. 10, 1989), on file with the Department of Legislative Reference, Annapolis, Legislative History file of House Bill 556.  This letter strongly indicates that the General Assembly contemplated the possibility that the MVA would not be able to schedule a hearing within 30 days, but only meant to provide a remedy (a stay of suspension) where prejudice would arise to the licensee.

   On behalf of the Mayor of Baltimore's Task Force for Liaison with the General Assembly, Colonel Joseph Cooke of the Baltimore City Police Department wrote to the House Judiciary Committee to express Baltimore City's support for House Bill 556.  Cooke indicated that:

   "Previous legislative[***17] efforts in this area have raised questions regarding the administration of our on the site confiscation program.  Our department has contacted . . . the Nevada Highway Patrol regarding their license confiscation programs, similar to the one proposed in House Bill 556 . . . . Nevada officials indicated that their seven day temporary license is too short and has caused administrative problems for them.  They indicated that the proposed 45 day validity period is more appropriate to meet the administrative needs of the Motor Vehicle Administration."
 
Letter from Colonel Joseph Cooke to the House Judiciary Committee (Feb. 15, 1989), on file with the Department of Legislative Reference, Annapolis, Legislative History file of House Bill 556.  Thus, the 45 day period was contemplated as part of an overall administrative plan.  This conclusion is logical when viewed in the context of the entire scheme of § 16-205.1(f).

   The General Assembly, in determining the appropriate period for driving on the temporary license, recognized that not all hearing requests would be received by the 10th day, [*466] but rather that many of the requests would be mailed on the 10th day.  As a result, the[***18] General Assembly calculated an additional five days for the request to be carried by the postal authorities to the MVA.  Obviously, the General Assembly was expecting that it might take as many as 15 days from the date of detention for the driver's request for a hearing to be received by the MVA.  The General Assembly then expected the MVA to schedule an [**945] administrative hearing for the driver in the 30 days that followed MVA's receipt of the request for a hearing. The General Assembly was aware that, unless the driver had his or her hearing within the 45 days that followed his or her detention, the licensee's privilege to drive would be automatically suspended on the 46th day without due process of law.

   This intent is explicit in the 1990 amendment to § 16-205.1, which was enacted by Ch. 413 of the Acts of 1990, for the purpose of "defining certain terms; making stylistic changes; clarifying language; making technical corrections; and generally relating to the revision of laws pertaining to certain alcohol- or drug-related driving offenses," and states:
 
"If the person refuses to take the test or takes a test which results in an alcohol concentration of 0.10 or more at[***19] the time of testing, the police officer shall . . . [i]nform the person that . . . the hearing will be scheduled within 45 days . . ."
 
Md.Code (1987, 1991 Cum.Supp.), § 16-205.1(b)(3)(v)1. of the Transportation Article.  Clearly, then the General Assembly intended that the hearing would be held within 45 days from the driver's detention. Larkin, Shrader, and Keller's administrative hearings were held 40 to 41 days after their detentions, a time well within the 45 day period for holding a hearing.

   In this context, it is inappropriate to invoke a dismissal sanction because a hearing was held 31 or 32 days, instead of 30 days, after receipt of the licensee's request for a hearing.  The reason for the prompt hearing is not for the benefit of the licensee; rather, the expedited hearing is [*467] required to promptly remove the driver from the highway.  Dismissing the suspension because of either a backlog in the scheduling of administrative hearings or an administrative oversight, in no way enhances the protection of the public.  In fact, dismissing a suspension under these circumstances would be inimical to the interests of the public and would enhance the interests of the presumptively[***20] drunken driver, an outcome that is contrary to our holdings and to the General Assembly's expressed sentiments.

   IV.

   We have previously held that dismissal is not the required sanction if a statute or rule does not state that dismissal will result from non-compliance; the statute or rule must be reviewed to determine whether a sanction for non-compliance is specified.  Gaetano, 310 Md. at 125, 527 A.2d at 48; Werkheiser, 299 Md. at 537, 474 A.2d at 902; Resetar v. State Bd. of Education , 284 Md. 537, 548, 399 A.2d 225, 231 (1979); Maryland St. Bar Ass'n v. Frank, 272 Md. at 533, 325 A.2d at 721; Director v. Cash, 269 Md. 331, 345, 305 A.2d 833, 841 (1973), cert. denied, 414 U.S. 1136, 94 S.Ct. 881, 38 L.Ed.2d 762 (1974).

   The MVA argues that § 16-205.1(f)(5)(iii)2. provides a penalty for violation of the mandatory time requirements in the instant case.  That section of the Transportation Article provides in pertinent part:

   "A postponement of a hearing described under this paragraph[***21] shall extend the period for which the person is authorized to drive if:

   1. Both the person and the Administration agree to the postponement;

   2. The Administration cannot provide a hearing within the period required under this paragraph; or . . ."
 
Thus, the MVA asserts that failure to provide a hearing within 30 days from receipt of the request for hearing is sanctioned by extending the period for which the person is authorized to drive.

   [*468] Counsel for the licensees in the instant case suggest that this section is inapplicable for two reasons: (1) because it requires that MVA and the licensee agree to any postponement, and (2) because this section pertains only to "postponements" and there was no previously scheduled administrative hearing in this case.  We find both of these arguments unpersuasive and inconsistent with the legislative history of this section.

   First, legislative history indicates that subsections 1. and 2. should be read disjunctively, not conjunctively; when the MVA cannot provide a hearing within the prescribed period, it may postpone the hearing despite the licensee's objection.  The Floor Report on House Bill 556 by the Senate Judicial Proceedings Committee[***22] indicates that "[any] postponement of the hearing does not extend the period for which the person may drive under the 45-day temporary license unless (1) the[**946] MVA cannot provide a hearing within the prescribed period, or (2) the MVA and the person both agree to the postponement." n4 Senate Judicial Proceedings Committee, Floor Report on House Bill 556 to the General Assembly of 1989, at 1-2 (emphasis added).  See also Senate Judicial Proceedings Committee, Bill Analysis on House Bill 556 to the General Assembly of 1989, at 1.  Thus, the fact that a licensee did not agree that the delay was acceptable to him or her does not prevent the MVA obtaining a postponement when it cannot provide a hearing within the prescribed period.

n4 Later amendments require a stay under an additional circumstance, when certain problems arise dealing with issuance or compliance with a subpoena to appear at the hearing.  § 16-205.1(f)(5)(iii)3.

   Moreover, in this case, the term "postponement" should not be read narrowly.  A postponement[***23] means to "put off; defer; delay . . . as when a hearing is postponed." Black's Law Dictionary 1168 (6th ed. 1990) (emphasis in original).  Indeed, in the context of § 16-205.1(f)(5)(iii)2., the term cannot be premised on a previously scheduled hearing date.  The very need for the postponement arises because the [*469] MVA could not provide the initial hearing date within the 30 day period required under § 16-205.1(f)(5)(i).

   It would be ludicrous for us to read § 16-205.1(f)(5)(iii)2. as requiring the MVA to go through the charade of scheduling the hearing for a date within the 30 day period -- which it knows cannot be met -- and then rescheduling the hearing for a date beyond the 30 day period.  Such a reading would exalt form over substance. n5 Rather, § 16-205.1(f)(5)(iii)2. reasonably means that if a hearing cannot be scheduled within the 30 day period, and if, for that reason, the hearing is delayed or deferred beyond the period required under § 16-205.1(f)(5)(i), the MVA shall extend the period during which the person is authorized to drive until the hearing is held, by staying the suspension which would otherwise become effective on the 46th day after the issuance of [***24]the order of suspension.

n5 The MVA's administrative rule picks up on this and rather than put the licensee through a two step process, accomplishes the same thing in one step. On October 1, 1990, the MVA promulgated a regulation codifying its policy that a dismissal was not required unless the MVA was responsible for a lapse in the licensing period prior to a hearing and prejudice to the licensee ensued. Md.Regs.Code Tit. 11, § 11.03.08(A) (1991).  This reading avoids a subterfuge and is consistent with legislative intent.

   V.

   Finally, the sanction to be imposed for non-compliance in a specific case may depend upon whether the party seeking dismissal can demonstrate prejudice from the non-compliance. Gaetano, 310 Md. at 127, 527 A.2d at 49; Resetar, 284 Md. at 550, 399 A.2d at 232.

   In Resetar, the appellant was terminated by the Montgomery County Board of Education.  He argued that the case should have been dismissed because the Board did not render[***25] its decision within 30 days of receiving the hearing examiner's findings, as was required by the Board's own rule.  As one of its reasons not to dismiss the case, we stated:

   [*470] "The County Board's regulation provides no penalty and makes no provision in the event of a violation of the limit imposed.  Resetar has suffered no prejudice.  He received pay which he might not otherwise have received.  The delay was brief.  We are of the view that neither the delay nor the temporary reinstatement had the effect of stripping the County Board of authority to dismiss Resetar.  The purpose of the provision no doubt was, as said by the Court in McCall's Ferry [Power Co. v. Price, 108 [**947] Md. 96, 69 A. 832 (1908)], 'to have prompt decisions of causes.'"
 
Id. at 550, 399 A.2d at 232.

   Likewise, in the cases at bar, the delay in scheduling the administrative hearing beyond the 30 days had no prejudicial impact on the licensees. Our predecessors observed that:
 
"Just what amounts to prejudice . . . naturally depends upon the facts of the particular case, but, generally speaking, it may be said to be anything which places the person affected[***26] in a more unfavorable or disadvantageous position than he would otherwise have occupied."
 
Roberto v. Catino, 140 Md. 38, 43-44, 116 A. 873, 875 (1922). These licensees were not placed in a more unfavorable or disadvantageous position; instead, they benefitted in that they were permitted to drive for a period of time that they might not otherwise have been allowed.

   For these reasons, the administrative law judges who heard the instant cases properly ruled that dismissal of the suspension was not the appropriate sanction for the MVA's non-compliance with § 16-205.1(f)(5)(i) of the Transportation Article.

   JUDGMENT OF THE CIRCUIT COURT OF PRINCE GEORGE'S COUNTY IN No. 49 AFFIRMED; COSTS TO BE PAID BY APPELLANT.

   [*471] JUDGMENTS OF THE CIRCUIT COURTS FOR ANNE ARUNDEL COUNTY IN No. 5 AND HARFORD COUNTY IN No. 4 REVERSED; CASES REMANDED TO THOSE COURTS WITH INSTRUCTIONS TO AFFIRM THE JUDGMENTS OF THE OFFICE OF ADMINISTRATIVE HEARINGS; COSTS IN THIS COURT AND IN THE CIRCUIT COURTS FOR ANNE ARUNDEL COUNTY AND HARFORD COUNTY TO BE PAID BY APPELLEES.

DISSENTBY: BELL

DISSENT: ROBERT M. BELL, Judge, dissenting.

   I respectfully dissent.  Contrary to the majority's view, I believe [***27]that dismissal is the proper sanction for violation of that provision of Maryland Transportation Code Ann. § 16-205.1 (1987, 1991 Cum.Supp.), which requires the Motor Vehicle Administration (MVA) to schedule an administrative hearing to challenge a suspension order within thirty days of its receipt of a request for hearing.  Certainly, the sanction is not "postponement" of the administrative hearing, pursuant to § 16-205.1(f)(5)(iii), n1 and, whenever necessary, extending the temporary driver's license issued to a [*472] driver detained for suspicion of drunk driving, n2 as successfully argued by MVA.

n1 That section provides:
 
A postponement of a hearing described under this paragraph shall extend the period for which the person is authorized to drive if:
  
1. Both the person and the Administration agree to the postponement;
 
2. The Administration cannot provide a hearing within the period required under this paragraph; or
 
3. Under circumstances in which the person made a request, within 10 days of the date that the order of suspension was served under this section, for the issuance of a subpoena under § 12-108 of this article except as time limits are changed by this paragraph:

   A. The subpoena was not issued by the Administration;

   B. An adverse witness for whom the subpoena was requested, and on whom the subpoena was served not less than 5 days before the hearing described under this paragraph, fails to comply with the subpoena at an initial or subsequent hearing described under this paragraph held within the 45-day period; or

   C. A witness for whom the subpoena was requested fails to comply with the subpoena, for good cause shown, at an initial or subsequent hearing described under this paragraph held within the 45-day period after the issuance of the order of suspension.

[***28] 

n2 Section 16-205.1(f)(5)(v) addresses the situation when the postponement results in a deferral of the hearing beyond the 45th day and, so, it contemplates that MVA will "issue a temporary license." As we shall see, however, the majority endorses a definition of postponement, espoused by MVA, which allows the hearing date to be set, initially, beyond the life of the temporary license. Consistent with that definition, MVA promulgated an administrative regulation apparently giving themselves authority to extend the temporary license:
 
"A. Scheduling.
 
(1) A hearing shall be provided by the Administration within the time periods required in Transportation Article, § 16-205.1, Annotated Code of Maryland.
 
(2) If the Administration cannot provide a hearing within the time periods required by Transportation Article, § 16-205.1 and the suspension period has not begun by the time the hearing is provided, or the Administration stays the suspension under Regulation .04A(2), the Administration or Administrative Law Judge may not dismiss the case.
 
(3) If the Administration cannot provide a hearing within the time periods required by Transportation Article, § 16-205.1, and the suspension period has begun as a result of the Administration's delay or oversight, the case shall be dismissed."
 
COMAR 11.11.03.08A.

[***29]

   [**948] I agree with much of the majority's analysis.  It is correct that § 16-205.1(f)(5)(i) n3 imposes a mandatory scheduling duty on MVA, but is silent as to the sanction for non-compliance. I do not challenge the majority's description of the statutory scheme -- the Legislature prescribed a maximum period of 45 days, the life of the temporary license, to accommodate the request (including delivery time) for, scheduling of, and conduct of an administrative hearing at which a driver may challenge the order of suspension issued to him. See § 16-205.1(b)(3)(v)1.  Nor do I quarrel with the majority's statement of the statute's purpose; I concede that it was enacted primarily for protection of the public, rather than the driver.

n3 That section, in pertinent part, provides: "If the person requests a hearing at the time of or within 10 days after the issuance of the order of suspension . . . the Administration shall set a hearing for a date within 30 days of the receipt of the request."

   [*473] The majority and[***30] I also agree upon the appropriate sanction for violation of the statutory scheme: dismissal.  The difference between us is the timing of, and trigger for, that sanction.  The majority, as does MVA, acknowledges that if a driver is deprived of the privilege to drive for even one day prior to a timely requested hearing, he or she will have been prejudiced, without due process, and, thus, entitled to have the order of suspension dismissed.  But they both also assert that it is § 16-205.1(f)(5)(iii)2 n4 that provides the sanction for violation of the scheduling provision.

n4 See note 1.

   There is no doubt but that, so long as the request is postmarked ten days or less after issuance of the order of suspension, n5 MVA is required to set a hearing within thirty days of receipt.  § 16-205.1(f)(5)(i).  Compare § 16-205.1(f)(b)(ii).  Relying on the life of the temporary license issued pursuant to § 16-205.1(b)(3) and legislative history, n6 specifically letters from Assistant Attorney General Katherine M. Rowe and Colonel[***31] Joseph Cooke of the Baltimore City Police Department concerning, respectively, the validity of the summary suspension provisions and Nevada's experience with similar legislation, n7 the majority concludes that "the 45 day period was contemplated as part of an overall administrative plan," at 465, and that "[c]learly, . . . the General Assembly intended that the hearing be held within 45 days from the driver's suspension." At 466.  [*474] MVA concedes, and the majority agrees, that if the hearing is initially scheduled more than 45 days after detention and the temporary license is not extended, then dismissal is the proper sanction.  Because, however, the purpose of the legislation is primarily to benefit the public, rather than the driver and, in this case, the violations caused only a one or two day delay in scheduling and holding the hearings, which, nevertheless, were held within 45 days, they say that the mere violation of the mandatory scheduling provision does not require the dismissal sanction.

n5 The 1990 amendment to the statute extending the time for the request for administrative hearing to thirty days does not apply to the cases sub judice.

[***32] 

n6 The legislative history utilized by the majority is, in my opinion, inappropriate for the purpose for which it is offered.  There is no dispute concerning the meaning of § 16-205.1(f)(5)(i) nor, for that matter, § 16-205.1(f)(5)(iii)2.  It is disputed, however, that the latter provision provides a sanction for violation of the scheduling provision.  The legislative history to which the majority refers does not bear on that question.

n7 The Cooke letter simply recognizes that a 45 day temporary license is administratively more palatable than one for seven days.

   Construing the statutory scheme as contemplating that hearings would be scheduled within 45 days of the issuance of the order of suspension, as opposed to within 30 days of receipt of a request for hearing, [**949] does not promote expeditious hearings and, moreover, is productive of potentially illogical results.  MVA need not comply with the 30 day scheduling requirement in the case of drivers whose requests for hearings are received less than 15 days from detention; it could schedule those hearing after 30 days, but still within[***33] 45 days.  On the other hand, timely requests received on the 15th day would have to be honored within 30 days, or be dismissed; failure to schedule within 30 days would mean that the temporary license would have expired.  In the former case, a violation would result in no sanction; in the latter, a violation of the same length would require dismissal.  It is not at all clear that the Legislature intended that MVA set a hearing at any time within the 45 day period rather than within the 30 day mandatory scheduling period, whatever the timing of its receipt of the request for hearing.

   Issuance of a 45 day temporary license ensures, whether the request for a hearing is made on the first day, or on the tenth day, allowing for necessary postal delivery, that MVA will have 30 days in which to schedule the hearing. The majority does not dispute that this is so, but says that the administrative scheme does not permit dismissal where there is non-compliance so long as the hearing is scheduled within the life of the temporary license, within 45 days. [*475] Consequently, as the majority sees it, when a hearing is requested is irrelevant as long as the hearing is held, or even scheduled, [***34] in 45 days, and MVA determines that it cannot hold it within 30 days of the request. Had the Legislature intended that hearings be scheduled within 45 days, rather than 30, it could easily have said so.  Certainly, it would have taken very little effort to add a few extra words, such as, "or in any event within the 45 day period." In any event, that the Legislature contemplated holding a requested hearing in the ordinary course, sometime within a 45 day period, depending upon when the request is received, does not mean that it also intended MVA to disregard the legislatively prescribed, clear and unambiguous mandatory 30 day scheduling provision.

   Given the legislation's purpose, it is unlikely that the Legislature intended that the entire 45 day life of a temporary license, or even most of it, would be used, as a matter of course, in every, or virtually every, case.  To the contrary, I suspect that it intended that, only in the unusual case, where the request is received after the 10th day, thus requiring scheduling of the hearing toward the end of the 45 day period, would it be necessary that most, or all, of the life of the temporary license be utilized; only a request [***35] made on the 10th day, and received by MVA on the 15th day, could consume the entire 45 day life of the temporary license. It is safe to assume, I believe, that the Legislature's preference would be to have the hearing scheduled, and held, and, possibly, the driver removed from the road, all prior to expiration of the temporary license. Thus, consistent with the legislation's primary purpose to protect the public, expedition in scheduling and in holding a hearing is to be encouraged.

   MVA argues that § 16-205.1(f)(iii)2 is the sanction for failing to schedule a hearing within 30 days.  That section provides that if the case is postponed because MVA cannot provide the hearing, the period during which the detained person is authorized to drive is extended.  MVA then stays the suspension and issues a temporary license. § 16-205.1(f)(5)(v).  [*476] See also COMAR 11.11.03.08A.  Critical to this argument is defining "postponement" so as to permit MVA initially to schedule the hearing more than 30 days after receipt of the hearing request.  The argument is simply wrong.

   Interpreting "postponement", as used in § 16-205.1(f)(5)(iii), as broadly as the majority does gives it a strained[***36] meaning, one not consistent with its ordinary and common signification.  See State v. Bricker, 321 Md. 86, 92, 581 A.2d 9, 12 (1990); Harford County v. The University, 318 Md. 525, 529, 569 A.2d 649, 651 (1990); NCR Corp. v. Comptroller, 313 Md. 118, 124-125, 544 A.2d 764, 767, 767 (1988); Jones v. State, 304 Md. 216, 220, 498 A.2d 622, 624 (1985); Mayor & City Council of Baltimore v. Hackley, 300 Md. 277, 283, 477 A.2d 1174, 1177 (1984); Schweitzer v. Brewer, 280 Md. 430, 438, 374 A.2d 347, [**950]352 (1977). The term "postponement" involves more than a mental exercise; at the very least it implies that there has been a previously scheduled date from which the present one is being put off, deferred or delayed. See Black's Law Dictionary 1168 (6th Ed.1990).  This is supported by § 16-205.1(f)(5)(iii)1 and 3: as a matter of initial scheduling, it could hardly be expected that subparagraph 1 could occur -- without being apprised of an initial date, one can hardly be expected to agree to change[***37] it -- nor, without a date set for which subpoenas have been issued, could the circumstances of subparagraph 3 be expected to have occurred.
 
   There is another reason that I do not believe the Legislature intended that MVA's unilateral failure promptly to schedule the hearing within the mandated period be included in the term "postponement." When a hearing has been scheduled within the prescribed period, it may be postponed, of course, but only by the administrative law judge assigned to conduct it.  Unilateral action by MVA is inconsistent with the administrative law judge's role in the process. n8

n8 Maryland Transportation Code Ann. § 12-104(e)(1) authorizes MVA to "delegate to the Office of Administrative Hearings the power and authority under the Maryland Vehicle Law to conduct hearings under this article . . . ." An administrative law judge is in the Office of Administrative Hearings.  It is undisputed that that office was conducting the hearings at all times relevant to the case sub judice.  See also COMAR 11.11.03.02A(1) and COMAR 11.11.03.08A.

[***38]

   [*477] By adopting MVA's argument, the majority endorses an interpretation of the statutory scheme that is inimicable to the public interest and the statutory purpose.  Under it, MVA, on its own and without any possibility of appellate review of the decision, may schedule the hearing, in total disregard of the legislatively mandated scheduling requirement, and hold it well beyond the 45 day period; all it need do is assert that it cannot provide the hearing within the time required.  In fact, this argument allows MVA to determine unilaterally that it is unable to hold the hearing, in the time prescribed, in advance of its being scheduled and give itself a "postponement." Moreover, having given itself a "postponement," MVA is permitted to issue a temporary license which will be valid until it finds it convenient to hold the hearing.  And because only MVA decides whether it can provide the hearing and can extend the period during which a driver may continue to drive, the statutory interpretation espoused by the majority encourages the extension of the driving privilege of those detained for drunk driving. While in this case, the delay was one or two days beyond the 30th day [***39] and within the 45 day period, it is fortuitous that it was so short; it could be much longer.  The long and short of it is, therefore, that, solely on MVA's unreviewed, and unreviewable, assertion that it cannot provide a hearing in a timely fashion, a drunk driver may be permitted to drive indefinitely.  Certainly, the Legislature did not intend that.

   By enacting 16-205.1(f)(5)(iii), the Legislature simply recognized that, once a hearing has been set timely, MVA, may not be able to provide it on the date set; n9 thus, it allowed [*478] for postponement, consistent with due process.  It is an amazing leap from this to the use of that provision as an initial scheduling tool and an even bigger one to the proposition that MVA and MVA alone, determines whether, and when, it can provide the required administrative hearing or that the statutory scheme "sanctions" the disregard of the mandatory scheduling provision with impunity. n10

n9 It is difficult, at best, to determine in advance of a case being called, whether MVA will be able to provide a hearing in that case.  That more cases are set than MVA is used to trying on any given day does not mean that all may not be accommodated or that the particular one at issue will not be reached. Indeed, it is conceivable that, when faced with the immediacy of the hearing, the party requesting it may opt not to insist that it be held.  In any event, it is necessary, in my view, that there be some ability to review MVA's contention that it was unable to hold the hearing.

[***40] 

n10 The scheduling provision is clear and unambiguous and mandatory; nevertheless, the majority interprets the legislative scheme so as to render that mandatory, clear and unambiguous provision nugatory.  In so doing, it violates an important canon of statutory construction.  See Newman v. Subsequent Injury Fund, 311 Md. 721, 723, 537 A.2d 274, 275 (1988); Kaczorowski v. City of Baltimore, 309 Md. 505, 511, 525 A.2d 628, 631 (1987); Management Personnel Services, Inc. v. Sandefur, 300 Md. 332, 341, 478 A.2d 310, 314 (1984).

   [**951] Requiring MVA to extend the right to drive of a driver presumed to be a drunk driver is not an appropriate sanction for a violation of the scheduling provision.  It does not encourage MVA to act more expeditiously.  It does punish the public by permitting that driver to drive for a longer period. And what's worse, the period can be extended indefinitely, in MVA's sole, unreviewable discretion.  There is no guidance given by the statute as to what constitutes a sufficient [***41] basis for the conclusion that MVA cannot provide a hearing.  It must be recalled that it is MVA that determines its own inability and extends the driving privilege.  As the majority interprets the statutory scheme, what it characterizes as a sanction gives MVA the unfettered right to extend indefinitely the driving privileges of a driver awaiting a suspension hearing; indeed, MVA, and MVA alone, determines both when the hearing will be initially scheduled and whether there can ever be a sanction.

   MVA has successfully argued that it would be ludicrous to go through a subterfuge, i.e., set a hearing that it knows [*479] will have to be postponed.  That argument is based upon a faulty premise.  It assumes that MVA's determination that the hearing could not be held within the prescribed period is objectively accurate, when, in fact, we just don't know that that is so.  But even if it were a subterfuge and that it is ludicrous, it is not for MVA or, for that matter, this Court to countermand the Legislature, which must be presumed to have understood what it was doing, and to have meant to do it.  The Legislature, in mandatory terms, required that an administrative hearing [***42]be set within 30 days of a hearing request and, further, that a postponement, in its commonly understood sense, coupled with an extension of the temporary license, if necessary, must be obtained in the event the hearing cannot be held.  Its mandate is clear.  There is no need or justification for ignoring it. n11

 n11 The fact that the MVA promulgated an administrative rule which codifies its interpretation of the appropriate sanction does not bind this Court.  See Maryland Regs.Code Title 11, § 11.03.08(A) (1991).  In fact, I believe that, because it seeks to, and does, change the legislative intent as expressed, it is invalid.

   Although I start from the same premise, I emphasize the need for compliance with the mandatory scheduling provision, rather than that provision that permits extension of the temporary license. The latter is, to my mind, important only when it is objectively demonstrable that MVA cannot provide a hearing within the time prescribed.  Focusing on the scheduling requirement and sanctioning its [***43]violation by dismissing the suspension order has the virtue of requiring MVA to comply with the legislatively mandated scheduling provision, rather than encouraging its disregard, of emphasizing promptness, rather than delay, and of furthering the public interest.  The majority's argument that, so long as a hearing is held within 45 days, the maximum life of the temporary license, or such period thereafter during which a driver's privilege to drive is extended by MVA gives MVA unreviewable discretion to allow a driver to continue to drive until MVA decides that it is time to hold a hearing.  This is in derogation of the Legislature's concern with [*480] limiting the period during which that driver is permitted to drive.

   Nor am I persuaded by the majority's argument that, to justify dismissal, a driver must show prejudice.  Again, the primary beneficiary of the statutory scheme is the public, not the drivers. Looking "to the purpose of the rule or statute in either of the circumstances of its violation to determine the appropriate sanction for violation of its provisions," Gaetano v. Calvert County , 310 Md. 121, 126, 527 A.2d 46, 48 (1987), makes[***44] clear that the critical consideration is not prejudice, but whether the sanction furthers the legislation's purpose.  Viewed from the correct perspective, i.e., "the consequences of the non-compliance in light of the totality of the circumstances," Gaetano, 310 Md. at 127, 527 A.2d at 48, I [**952] believe the answer is obvious.  Unless the sanction for failure to set an administrative hearing within the mandatory time period prescribed by § 16-205.1(f)(5)(i) is dismissal, MVA will have no incentive to comply with the legislative mandate; it will continue to ignore the scheduling provision and, when necessary, to extend the life of the temporary license. n12 The dismissal sanction ensures not only expeditious scheduling of a hearing, but also that MVA will apply the statute so that hearings will be held in the shortest possible time.

n12 There is Maryland case law supporting the proposition that dismissal is the appropriate sanction for non-compliance with a mandatory time requirement in a statute.  See In re James S., 286 Md. 702, 410 A.2d 586 (1980), State v. Hicks, 285 Md. 310, 403 A.2d 356 (1979) and U.S. Coin Etc. v. Director of Finance, 279 Md. 185, 367 A.2d 1243 (1977). Hicks makes the point quite clearly that the sanction of dismissal is designed to ensure compliance with an unambiguously mandatory time requirement.  285 Md. at 316-18, 403 A.2d at 359-60.

[***45] 

Wilbert POWELL, Jr. v. STATE of Maryland 
No. 10, September Term, 1991
 
Court of Appeals of Maryland
 
324 Md. 441; 597 A.2d 479; 1991 Md. LEXIS 185

 October  30, 1991  
 October  30, 1991, Filed

   PRIOR HISTORY: [***1]  
 
Certiorari to Court of Special Appeals; Circuit Court for  Anne Arundel  County; Eugene M. Lerner, Judge.

DISPOSITION: JUDGMENTS AFFIRMED.  COSTS TO BE PAID BY PETITIONER.

CORE TERMS:  preliminary hearing, felony, murder, hearsay, defense counsel, armed robbery, proffer, assault, robbery, hearsay rule, fundamental jurisdiction, proffered, confessed, Maryland Rule, criminal information, probable cause, lesser, rob, extrajudicial statement, fair trial, sub judice, conferred, oath, charging document, trustworthiness, common-law, threatened to kill, failure to hold, murder charge, murder case

COUNSEL: George E. Burns, Jr., Asst. Public Defender (Stephen E. Harris, Public Defender, Jose Felipe Anderson, Asst. Public Defender, on brief), Baltimore, for petitioner.

   Thomas K. Clancy, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on brief), Baltimore, for respondent.

JUDGES: Murphy, C.J., and Eldridge, Rodowsky, McAuliffe, Chasanow, Karwacki and Robert M. Bell, JJ.

OPINIONBY: BELL

OPINION: [*442] [**480] This case presents two questions for our resolution, namely, whether the failure to hold, or waive, a preliminary hearing is jurisdictional and whether, under the facts sub judice, hearsay evidence should have been admitted.  When it addressed these issues, the Court of Special Appeals answered both questions in the negative.  Powell v. State, 85 Md.App. 330, 583 A.2d 1114 (1991). We will do likewise.

   1

   Wilbert Powell, Jr., petitioner, was arrested and charged, by way of Statement of Charges, filed in the District Court of Maryland, sitting in Anne Arundel County, see Maryland Rule 4-211, with having[***2] "feloniously, willfully[,] deliberately[,] and maliciously" murdered Donald Jackson, the victim.  At the petitioner's request, a preliminary hearing was held, at which probable cause to believe petitioner committed the offense was found. Thereafter, a criminal information was [*443] filed in the Circuit Court for Anne Arundel County.  In addition to murder the information charged armed robbery, attempted armed robbery, robbery, assault with intent to rob, theft, attempted theft, assault and battery, and assault. Notwithstanding that three of these charges were felonies not within the jurisdiction of the District Court, no other preliminary hearing was held and, insofar as the record reflects, none was requested.  Explaining the latter, petitioner asserts that he was never advised that he had a right to a preliminary hearing in regard to the three subsequently charged felonies. n1

n1 See Maryland Rule 4-221, Preliminary Hearing in District Court, and Maryland Code Ann. art. 27 § 592 (1957, 1987 Repl.Vol.).

   Petitioner[***3] was tried by jury.  At the conclusion of trial, he was convicted of all the charges except murder. The court sentenced him to 15 years imprisonment for the armed robbery conviction and merged the others into it. Petitioner appealed to the Court of Special Appeals, which, as we have seen, affirmed.  We issued the writ of certiorari to consider the important issues raised by petitioner.  322 Md. 644, 589 A.2d 73.

   [**481] 2

   Relying on Maryland Rule 4-201(c) n2 and Maryland Rule 4-213(a)(4), n3 petitioner argues that the circuit court [*444] lacked jurisdiction to try him for armed robbery, robbery or assault with intent to rob. He asserts that which is necessarily conceded, namely that no preliminary hearing was separately held for those charges and, further, that, never having been advised of the right to it, he never expressly waived the hearing.

n2 Maryland Rule 4-201(c) provides:
 
(c) In the circuit court.  -- In the circuit court, an offense may be tried
 
(1) on an indictment, or
 
(2) on an information if the offense is (A) a misdemeanor, or (B) a felony within the jurisdiction of the District Court, or (C) any other felony and lesser included offense if the defendant has been charged with the felony and a preliminary hearing pursuant to Rule 4-221 has resulted in a finding of probable cause, or if the defendant has been charged with the felony as to which a preliminary hearing has been waived, or
 
(3) on a charging document filed in the District Court for an offense within its jurisdiction if the defendant is entitled to and demands a jury trial or appeals from the judgment of the District Court.
[***4] 

n3 Maryland Rule 4-213(a)(4) provides:
 
Advice of Preliminary Hearing.  When a defendant has been charged with a felony that is not within the jurisdiction of the District Court and has not been indicted, the judicial officer shall advise the defendant of the right to have a preliminary hearing by a request made then or within ten days thereafter and that failure to make a timely request will result in the waiver of a preliminary hearing. If the defendant then requests a preliminary hearing, the judicial officer may either set its date and time or notify defendant that the clerk will do so.

   Rather than relying on a defective charging document, petitioner relies on the wording of Rule 4-201(c), particularly the introductory phrase, "In the circuit court, an offense may be tried." He argues:
 
Clearly, a court which may not try an offense has no jurisdiction.  What is at stake is not a defect in the charging document but rather the question of whether the court may try an offense other than under the authority provided by statute n[4] and rule.  If the means for [*445] permitting trial[***5] by information are not followed, the court has no authority to try a case without an indictment.  (Citations omitted)
 
Petitioner's brief at 6-7.

n4 Presumably, the statute to which petitioner refers is Maryland Code Ann. art. 27 § 592, which provides:
 
(a) In all cases involving a felony, other than a felony within the jurisdiction of the District Court, in which the accused has not requested a preliminary hearing within ten days after being informed by the court or court commissioner of the availability of such a hearing, or in all cases in which a preliminary hearing has been held and probable cause to hold the accused has been found, the State's Attorney may charge by information.
 
(b)(1) In any case where the defendant has been charged with a felony, other than a felony within the jurisdiction of the District Court, the defendant shall be advised by the court or court commissioner, at the time of the initial appearance required by the Maryland District Rules, of his right to request a preliminary hearing. The defendant may make that request at the time of the initial appearance or at any time within ten days thereafter.  If the defendant fails to request a preliminary hearing within the ten-day period it is waived.
 
(2) If the State's Attorney elects to charge the accused by criminal information, the right of the defendant to the preliminary hearing is absolute, if he has requested such a hearing as set out above.
 
(3) If the State's Attorney elects to charge the accused by grand jury indictment, the preliminary hearing is not a matter of right to the defendant but may be afforded in the court's discretion.  A preliminary hearing is not a matter of right in any other case, but may be afforded in any case in the court's discretion, upon motion of the State's Attorney or the defendant.

[***6]

   Petitioner's position is quite simple.  The circuit court, he maintains, never acquires jurisdiction over a case which is initially filed in the District Court and in which one of the charges is a felony not within the District Court's jurisdiction, until the defendant waives a preliminary hearing or a preliminary hearing is held.  Whether a waiver has occurred depends, petitioner asserts, on the accused having been advised of the right to one, which the record must reflect.  He maintains that there can be no waiver by inaction.

   Petitioner interprets Rules 4-201(c) and 4-213(a)(4) as affecting the circuit court's [**482] fundamental jurisdiction, that is, its "power to act with regard to a subject matter which 'is conferred by the sovereign authority which organizes the court, and is to be sought for in the general nature of its powers, or in authority specially conferred.'" Pulley v. State, 287 Md. 406, 416, 412 A.2d 1244, 1249 (1980), quoting Cooper v. Reynolds, Lessee, 77 U.S. (10 Wall) 308, 316, 19 L.Ed. 931 (1870). See First Federated, Com. Tr. v. Commissioner, 272 Md. 329, 335, 322 A.2d 539, 543 (1974)[***7] ("If by that law which defines the authority of the court, a judicial body is given the power to render a judgment over that class of cases within which a particular one falls, then its action cannot be assailed for want of subject matter jurisdiction."); Stewart v. State, 287 Md. 524, 526-27, 413 A.2d 1337, 1338 (1980).

   [*446] Circuit courts of this state, including the Circuit Court for Anne Arundel County, derive their jurisdiction from Maryland Constitution, Art. IV, § 20.  They are courts of original general jurisdiction, see Birchead v. State, 317 Md. 691, 697, 566 A.2d 488, 491 (1989), First Federated Com. Tr., 272 Md. at 335, 322 A.2d at 543, authorized to hear all actions and causes, other than those particularly prescribed by statute or constitutional provision for other fora.  Id. More particularly, pursuant to Maryland Cts. & Jud.Proc.Code Ann. § 1-501 (1973), 1989 Repl.Vol.), they are
 
the highest common-law and equity courts of record exercising original jurisdiction within the State.  Each has full common-law and equity powers and jurisdiction in all civil and criminal[***8] cases within its county, and all the additional powers and jurisdiction conferred by the Constitution and by law, except where by law jurisdiction has been limited or conferred exclusively upon another tribunal.

    The felonies as to which petitioner complains he did not receive a preliminary hearing are either common-law -- armed robbery and robbery, see Whack v. State, 288 Md. 137, 140-41, 416 A.2d 265, 266-67 (1980), appeal dismissed, 450 U.S. 990, 101 S.Ct. 1688, 68 L.Ed.2d 189 (1981) -- or statutory -- assault with intent to rob, see Maryland Code Ann. art. 27 § 12 (1957, 1987 Repl.Vol.).  All are within the fundamental jurisdiction of the circuit courts. Section 592 and Maryland Rules 4-201(c) and 4-213(a)(4) address a procedural matter: the regulation of the movement of cases from the District Court, in which the preliminary hearing process is lodged, to the circuit court; they do not control the fundamental jurisdiction of the circuit courts.  Thus, we have frequently refused to overturn convictions for failure to hold preliminary hearings.  See Ferrell v. Warden, 241 Md. 432, 435-436, 216 A.2d 740, 743 (1965);[***9] Petrey v. State, 239 Md. 601, 603, 212 A.2d 277, 279 (1964); Hardesty v. State, 223 Md. 559, 563, 165 A.2d 761, 763 (1960); Pritchard v. Warden, 209 Md. 662, 664, 121 A.2d 696, 698 (1955).

   [*447] Petitioner's argument based on the failure to advise him of the right to a preliminary hearing on the added felony charges is likewise meritless.  In Smith v. State, 73 Md.App. 156, 533 A.2d 320, cert. denied, 311 Md. 719, 537 A.2d 273 (1988), the defendant was tried and convicted in the District Court of driving under the influence of alcohol.  His appeal to the circuit court alleged that the District Court did not have jurisdiction to try him because he was not advised of the right and, so, did not waive a jury trial. Judge Karwacki, then a judge of the Court of Special Appeals, speaking for the court, rejected that argument, observing:
 
The fundamental jurisdiction of the District Court to hear the criminal charges pending against the appellant would not have been affected by the court's failure to comply with Md. District[***10] Rule 751.  Such error, if in fact it did occur, was one of procedure in the court's exercise of its jurisdiction which could have been corrected on direct appeal . . . .
 
73 Md.App. at 161, 533 A.2d at 322. Rule 751 required that, "At the commencement of a trial a court shall . . . (c) inform the defendant when applicable, of his right to trial by jury . . . ." That rationale applies [**483] equally to the case sub judice. n5

n5 Attached to the Statement of Charges charging petitioner with murder was a statement of probable cause detailing the facts upon which that charge was predicated.  Specifically, it alleged that the victim was stabbed and strangled to death and that, although the victim had been paid on the day of the murder and had $120.00 on his person that evening, his wallet was empty when found at the crime scene.  In addition, witness statements indicated that petitioner and the victim had engaged in an altercation resulting from the victim's refusal of petitioner's request for money.  From this one may infer that felonymurder, not premeditated murder, was the theory pursued at the preliminary hearing.

   Two of the felonies added when the criminal information was filed -- armed robbery and robbery -- are actually lesser included offenses of felony-murder under the facts alleged.  See Maryland Code Ann. art. 27, § 410 (1957, 1987 Repl.Vol.).  The other -- assault with intent to murder --, although not a lesser included offense, is subsumed, under the facts alleged, within the felony-murder charge.  See Brooks v. State, 2 Md.App. 291, 296, 234 A.2d 467, 470, cert. denied, 248 Md. 733 (1968) (An assault with intent to rob may also be an attempted robbery within the meaning of § 410).  Petitioner does not challenge either premise.  Accordingly, since only one criminal information was filed and it was filed on March 23, 1989, after the preliminary hearing had been held, not on February 23, as the Court of Special Appeals' opinion states, it is, at least, arguable that petitioner received the only preliminary hearing to which he was entitled.  See Maryland Rule 4-201(c)(2) (referring to "felony and lesser included offense") and § 592, which speaks to "cases" rather than "charges."

[***11]

   [*448] 3

   At trial, petitioner called Jerome Thomas as a defense witness and questioned him concerning his contact, shortly after the murder, with one Uggy Wright.  In response to a question by defense counsel concerning who Uggy Wright is, the witness stated, "A gentleman that apparently had something to do with it, from his say so." The prosecutor's objection and motion to strike was sustained by the court.  Thereafter, at a bench conference, defense counsel made the following proffer:
 
MS. NORTH: I would call the court's attention to the case, Foster vs. State, [297 Md. 191, 464 A.2d 986 (1983), cert. denied, 464 U.S. 1073, 104 S.Ct. 985, 79 L.Ed.2d 221 (1984).] Foster vs. State was also a murder case. Foster vs. State among other things, discusses that you cannot use the Hearsay Rule, first of all it's discretion, but you cannot use the Hearsay Rule to the point where it does not allow person to have a fair trial. In this case there were two types of hearsay and one of them was like ours.  The other one was where a friend of the victim was telling the Court about statements made by the deceased. [***12]They ruled that should have been allowed in.  The trial court did not allow it in, they said in a murder charge you can't use the Hearsay Rule to deny him a fair trial. Second type of hearsay in this case, Your Honor, is the type we're using right here.  And, in addition to that, Your Honor, this is not hearsay. If, Your Honor, would let me ask the next question you'll see that I am not offering this to show the truth of what was said, but only [*449] to show that some person had knowledge of the crime.  And, that's the reason . . .
 
THE COURT: Who had knowledge of the crime?
 
MS. NORTH: Uggy Wright.  I'm not offering it to show the statements made by Uggy Wright were truthful or that they were in fact true, but that he had knowledge of the crime.  He came up to this man and told him things that would clearly tell him that Uggy Wright had knowledge of the crime.  Now, obviously the only way he'd have knowledge of the crime, Your Honor, is if he were there or saw it. And, this case says that the hearsay should have been admitted in this case.  It was a murder case also.
 
To the court's inquiry as to what made the statement trustworthy, she responded: 
 
 Well, first of [***13] all he doesn't even know Nick Powell, except he knows who he is.  He has nothing to gain by coming in here and saying this.  He simply comes in because he told me about an incident where he was at the Starting Gate Liquor Store, he was reading the paper, they started talking about this case. And, Uggy Wright starts telling him stuff about how, since they have Nick [**484]Powell for this he doesn't have to worry, how, he wanted to know if any cops had been looking for him all this such thing.

   Aside from the fact that the answer appears to be nonresponsive -- addressing the trustworthiness of Thomas's testimony, rather than Uggy Wright's statement -- that reference is as specific a proffer as counsel ever made as to what Thomas would have testified that Uggy Wright said.  Relying on this proffer and an earlier one made before trial, petitioner argues that the refusal to allow Thomas to testify concerning what Uggy Wright told him was reversible error. n6 We are not persuaded.

n6 Below petitioner argued, as an alternative, that Uggy Wright's statements were not hearsay since they had relevance only to show that Uggy Wright had knowledge of the crime.  The Court of Special Appeals rejected that argument and petitioner has not presented it to us.  Therefore, we need not address it.

[***14]

   [*450] Before trial, in order to preserve the record for a possible new trial motion, defense counsel placed the following on the record:
 
MS. NORTH: Your Honor, some time ago, I believe maybe two and a half weeks ago I contacted Mr. Paone [prosecutor] because in this case I have done my own investigation, which has taken place over many months.  At three or four separate times, Your Honor, three people have independently of each other told me the same thing in my investigation, And, that was that a third party named, Uggy Wright, alias, Alan Wright, who I'm not sure if, Your Honor, sentenced him. 

   * * *
 
His real name is Alan Wright.  I want the record to reflect that I have communicated all this to Mr. Paone.  That that person did work on the racetrack at the time.  All three of these people indicated that Mr. Wright was the person who did it.  And, one person has indicated that Mr. Wright himself told him that he did it.  And, he should probably get out of town.
 
When she proffered Thomas's testimony at trial, defense counsel pointedly did not say Thomas would testify that Uggy Wright admitted committing the murder; rather, she made clear that Thomas would never say that[***15] Uggy Wright committed the crime.  Indeed, when the court asked what corroborated the statement, as Foster v. State, 297 Md. 191, 464 A.2d 986 (1983), cert. denied, 464 U.S. 1073, 104 S.Ct. 985, 79 L.Ed.2d 221 (1984) required, all counsel said was:
 
 No, that's why I am saying it's not hearsay. He's not coming in here saying Uggy Wright committed the crime, he doesn't know who committed the crime.  The important point is he should be able to come in here and tell us that another person had knowledge of the crime.  You heard Dr. Kaplan, he said he definitely didn't rule out the [*451] possibility that more than one person participated in this.  So, clearly, Your Honor, that is very important . . . .

   At trial, rather than all three witnesses mentioned in the pretrial proffer, defense counsel called only Thomas and proffered that he would not say that Uggy Wright admitted committing the crime.  Accordingly, notwithstanding petitioner's invitation that we do so, we find no connection between the pretrial proffer and that made during Thomas's examination.  Indeed, it is patent that it is the latter proffer[***16] that we must accept.

   Petitioner's argument is similar to that successfully made in Foster, supra. In Foster, we applied the rule, enunciated in Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973) and Green v. Georgia, 442 U.S. 95, 99 S.Ct. 2150, 60 L.Ed.2d 738 (1979), that "rules of evidence could not be applied if, under the facts and circumstances of the particular case, their application deprived the accused of a fair trial." 297 Md. at 207, 464 A.2d at 995. There, the accused defended a murder charge by alleging that it was her husband and daughter who killed the victim; thus, credibility was the critical issue in the case.  To support her claim, the accused sought admission of a statement, [**485]made by the victim to a friend, to the effect that her husband had threatened to kill the victim.  Moreover, the record reflected that her husband had confessed to committing the murder, not once, but twice, once in a letter to the accused and again in a letter addressed to "Attorney General, Cecil County, [***17] MD." In the latter, he not only confessed but described in detail the circumstances surrounding the murder. Although the ground advanced by the accused in Foster did not command a majority, we reversed the judgment of conviction, holding that both the victim's statement and the accused's husband's threat should have been admitted.

   After determining that "the proffered testimony that the accused's husband had threatened to kill the victim", id., was relevant to the guilt or innocence of the accused, we addressed its trustworthiness:
 
[*452] The husband's threat was made spontaneously during an argument with the victim over the payment of rent, and was a statement against interest.  The victim's extrajudicial statement was made spontaneously at a time when she was excited, and under circumstances in which she had no reason to lie. Additionally, her extrajudicial statement was made shortly before the murder to a close acquaintance with whom she had previously exchanged information about tenants.  Both the accused's husband's threat and the victim's extrajudicial statement were corroborated by other evidence -- the accused's husband's two written confessions, the accused's[***18] testimony that her husband was present at the time of the commission of the crime, and the accused's husband's testimony that he cleaned up the room in which the murder took place, removed and disposed of the body, and shared in the proceeds of the robbery. Finally, if there was any question about the reliability of either the husband's or the victim's extrajudicial statements, the accused's husband was present in the courtroom, under oath, and was available for cross-examination by the State before the jury.  Thus, the testimony rejected by the trial court bore persuasive assurances of trustworthiness.
  
297 Md. at 211-212, 464 A.2d at 997. See also Chambers, 410 U.S. at 298-99, 93 S.Ct. at 1047-48, 35 L.Ed.2d at 310-11. n7

n7 In Chambers, the defendant defended by attempting to prove that another person killed the victim.  Application of the Mississippi voucher rule prevented him from cross-examining that person, McDonald, whom he was required to call as his witness when the State did not call him as a witness.  Furthermore, because of the hearsay rule and the fact that Mississippi did not recognize declarations against penal interest, he was not permitted to call three witnesses to whom McDonald had orally confessed to having shot the victim.  Reversing, the Court noted the following factors as indicating that the proffered hearsay statements of the three witnesses should have been admitted: McDonald had given a sworn statement (which he later repudiated) to the defendant's lawyer; he had orally confessed to friends on three separate occasions; testimony of an eyewitness that McDonald had a gun prior to the shooting; that at one time McDonald owned the same caliber revolver and later purchased a new one; McDonald's declarations against penal interest; and his presence in court to testify under oath.

[***19]

   [*453] In the case sub judice, Uggy Wright did not make an extrajudicial confession.  The best we can say is that, as defense counsel argued at trial, Uggy Wright might have had some knowledge of the crime.  Thus, because they do not tend to negate petitioner's criminal agency, the statements attributed to Uggy Wright are not critical to petitioner's defense.  Moreover, there is no corroboration that Uggy Wright participated in the crime or was at or near the scene, at or about the time the murder occurred.  Furthermore, the trial court specifically determined that the statements were not trustworthy.  That factual issue is, in the first instance, properly entrusted to the trial court.  See Brady v. State.  226 Md. 422, 429, 174 A.2d 167, 171 (1963). We perceive no error in that regard.  Finally, Uggy Wright was not available to testify under oath, the reasons for which petitioner did not explain.  Therefore, under the circumstances of this case, "the hearsay testimony proffered in this case [being] neither 'critical' nor particularly 'reliable,'" Powell, 85 Md.App. at 343, 583 A.2d at 1120, was properly excluded. [***20]

   JUDGMENTS AFFIRMED.

   COSTS TO BE PAID BY PETITIONER. 

B & K RENTALS AND SALES CO., INC. v. UNIVERSAL LEAF TOBACCOCO. et al. 
No. 135 September Term, 1990
 
Court of Appeals of Maryland
 
324 Md. 147; 596 A.2d 640; 1991 Md. LEXIS 168

 October  9, 1991  
 October  9, 1991, Filed

   SUBSEQUENT HISTORY: [***1]

   Motion for Reconsideration Denied November 27, 1991.

PRIOR HISTORY:  
 
Certiorari to Court of Special Appeals; Circuit Court for  Anne Arundel  County; Martin A. Wolff, Judge.

DISPOSITION: JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED.  CASE REMANDED TO THAT COURT WITH DIRECTIONS TO REMAND THIS CASE TO THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY FOR A NEW TRIAL ON THE ISSUE OF NEGLIGENCE.  COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID BY RESPONDENT.

CORE TERMS:  res gestae, admissibility, hearsay, admissible, warehouse, truck, declaration, common law rule, lieutenant, intermediate, embodied, hearsay rule, speaking, contemporaneity, vicarious, gestae, predominant, terminology, vicariously liable, hearsay exception, business records, acetylene torch, string, wheels, underlying judgment, granted certiorari, probative evidence, notice of appeal, probative value, utterance

COUNSEL: Georgia Lewis Leonhart, Baltimore, for petitioner.

   Janet S. Zigler (Albert D. Brault, Brault, Graham, Scott & Brault, all on brief), Rockville, for respondents.

JUDGES: Murphy, C.J., and Eldridge, Rodowsky, McAuliffe and Chasanow, JJ., and Charles E. Orth, Jr., Judge of the Court of Appeals (retired), Specially Assigned.

OPINIONBY: CHASANOW

OPINION: [*149] [**641] Universal Leaf Tobacco Co. (Universal), through its subsidiary, Winstead Co., Inc., owned and operated a tobacco warehouse. B & K Rentals and Sales Co., Inc. (B & K) leased a portion of the warehouse to store equipment used in its business of renting scaffolding and seating for public gatherings.  A fire broke out at the warehouse destroying most of B & K's equipment.  Contending that the negligence of [***2] Universal and its employees caused the fire, B & K brought an action for damages against Universal in the Circuit Court for Anne Arundel County.

   On the day of the fire, two of Universal's employees, Walter Johnson (Johnson) and Leonard Grimes (Grimes), were present and working within the tobacco warehouse. Johnson was killed by the fire.  The parties dispute B & K's ability to locate Grimes at the time of trial.  Consequently, they also dispute his availability as a witness.  Nonetheless, B & K neither deposed nor subpoenaed Grimes.  Rather, B & K called Lieutenant Kenneth J. Klasmeier (Lt. Klasmeier), a fire investigator with the Anne Arundel County Fire [*150] Department, as an expert witness for the purpose of testifying as to the cause of the fire.

   Lt. Klasmeier had investigated the fire in progress and had received a written report from Lieutenant James Stallings (Lt. Stallings), who is also a fire investigator with the Anne Arundel Fire Department, regarding the origin and cause of the fire.  Pursuant to his investigation and report, Lt. Stallings had interviewed various people, including Grimes, at the scene of the fire. Grimes told Lt. Stallings that: 1) Johnson and he[***3] were the only two people working at the warehouse at the time of the fire; 2) Grimes had lit an acetylene torch for Johnson a couple of hours before the fire; 3) Johnson was using the torch to burn strings caught in the jack wheels of a wooden dolly; 4) Grimes heard a popping noise and saw smoke coming from the area where Johnson had just finished burning the string from the jack wheels; and 5) Grimes believed the cause of the fire was related to Johnson's use of the acetylene torch.

   Based almost exclusively upon Grimes' statements, Lt. Stallings' report described the events which preceded the fire.  This report formed the bulk of the Fire Investigation Bureau report which was forwarded to the Division Chief of the Anne Arundel County Fire Department.  Universal ob[**642] jected to the admission of this report, as well as a second report written by Lt. Klasmeier and forwarded to the State Fire Marshal's Office, on the ground of hearsay, actually double-level hearsay. Universal contended that Grimes' statements constituted the second level of hearsay and the written report of those statements constituted the first.  The intermediate appellate court noted that little or no objection[***4] was raised that the reports constituted business records. n1 While the business records hearsay exception may allow the admission of the lieutenants' firsthand observations [*151] contained within the reports, Grimes was not part of the county fire department "business" and his hearsay statements made to Lt. Stallings and contained within the reports would have to be excised unless they were admissible under some other hearsay exception. n2 The trial court excluded the reports, as well as Lt. Stallings' in-court testimony because each was based upon Grimes' hearsay statements, which it determined qualified neither as admissions of a party opponent nor as part of the undifferentiated res gestae.

n1 The parties and the Court of Special Appeals have referred to these reports as being business records, and we will continue to use that terminology. We note, however, that they may also fall within the official/public records exception.  See Ellsworth v. Sherne Lingerie, Inc., 303 Md. 581, 612, 495 A.2d 348, 363-64 (1985).

n2 "An oft recurring version of multiple hearsay involves a primary hearsay exception in the form of a regularly kept business record which includes a further hearsay statement.  If the included statement is by a person acting in the routine of the business, the regularly kept records exception takes care of the matter and no further exception need be invoked.  However, if the person whose statement is included is not in the routine of the business, resort must be had to a further exception." McCormick on Evidence, § 324.3 at 912 (E. Cleary, 3d ed. 1984).

[***5]

   Lt. Klasmeier, on the other hand, was permitted to testify that in his opinion "the cause and origin would have been the actions of Johnson using an acetylene torch to burn strings off of wheels inside the warehouse." Lt. Klasmeier was permitted to so testify despite his admission that he would not have been able to formulate such an opinion absent Grimes' statements.  The case went to the jury on a res ipsa loquitur instruction, and the jury returned a verdict for B & K for $123,252.00.  Universal moved the court for judgment notwithstanding the verdict on the grounds that the expert opinion of Lt. Klasmeier was improperly admitted into evidence and that B & K had proven either too much or too little to rely upon res ipsa loquitur.  The trial court granted the motion and entered judgment N.O.V. for Universal on the basis of the second ground only.  B & K filed motions for a new trial and for reconsideration which were denied by the trial court.  B & K then appealed.

   The Court of Special Appeals noted that B & K's notice of appeal referred only to the trial court's denial of its post-trial [*152] motions.  The intermediate appellate court held that the sole issue preserved[***6] for appeal was whether the trial court had abused its discretion in denying the post-trial motions.  B & K Rentals v. Universal Leaf, 73 Md.App. 530, 535 A.2d 492 (1988). Finding no abuse of discretion, the Court of Special Appeals affirmed the judgment of the trial court.

   This Court granted certiorari and held that the limiting language in the notice of appeal did not preclude consideration of the underlying judgment. Therefore, the Court of Special Appeals was reversed and the case remanded for further proceedings.  B & K Rentals v. Universal Leaf, 319 Md. 127, 571 A.2d 1213 (1990). On remand, the intermediate appellate court affirmed the underlying judgment of the trial court.  B & K Rentals v. Universal Leaf, 84 Md.App. 103, 578 A.2d 274 (1990).

   In addressing the admissibility of Lt. Klasmeier's testimony, the Court of Special Appeals quite properly reasoned that "[i]f, in fact, the predominant basis for the opinion is information that the law deems unreliable, the opinion loses much, if not all, of its probative value, for it then essentially regurgitates the underlying untrustworthy[***7] information." Id. at 121, 578 A.2d at 283. By Lt. Klasmeier's own admission, Grimes' statements furnished the predominant ba[**643] sis for his opinion.  Therefore, the decisive question addressed by the intermediate appellate court, and the question upon which this Court granted certiorari, was whether each of Grimes' statements to Lt. Stallings constituted admissions by Universal.

   Although it is clear that Grimes was Universal's agent, he had no express authority to speak for Universal.  B & K argued below and now urges this Court to adopt the principle embodied in Federal Rule of Evidence 801(d)(2)(D) that a statement made by an agent of a party opponent which concerns a matter within the scope of the agency or employment and is made during the existence of that relationship constitutes an admission of the party opponent.  While recognizing and discussing the sound rationale behind liberalizing [*153] the admission of an agent's statement, the Court of Special Appeals concluded that Grimes' statements were not admissible under existing Maryland law.  We take this opportunity to re-examine the development of our case law on vicarious admissions[***8] and to join the substantial majority of states adopting the principle embodied in F.R.E. 801(d)(2)(D).

   Traditionally, an agent was required to have "speaking authority" before his statement was considered an admission of the principal.  See Brown v. Hebb, 167 Md. 535, 547, 175 A. 602, 607 (1934), where we quote the Restatement of Agency, § 286 (1933): "Statements of an agent to a third person are admissible in evidence to prove the truth of facts asserted in them as though made by the principal, if the agent was authorized to make the statement or was authorized to make, on the principal's behalf, true statements concerning the subject matter." This test of admissibility was further defined in Feigley v. Balto. Transit Co., 211 Md. 1, 124 A.2d 822 (1956). Again, this Court looked to the Restatement of Agency for the principles that:

   "(1) Authority to do an act or conduct a transaction does not of itself include authority to make statements concerning the act or transaction.

   (2) Authority to make statements of fact does not of itself include authority to make statements admitting liability because of such facts."
[***9]  
Feigley, 211 Md. at 8, 124 A.2d at 826 (quoting Restatement of Agency, § 288). The Court in Feigley applied the above standard to exclude admissions of liability made by a Baltimore Transit Company representative and concluded that "the fact that he was employed to investigate the claim is not enough of itself to support an implied authorization to make such an admission." 211 Md. at 8, 124 A.2d at 826.

   As in Feigley, the application of this traditional test of agency law as an evidentiary standard "frequently caused courts to exclude the agent's highly probative statement on [*154] the theory that the employer had not authorized the agent to make damaging remarks about him." 4 J. Weinstein & M. Berger, Weinstein's Evidence, para. 801(d)(2)(D)[01] at 219 (1988).

   In order to avoid the loss of valuable and trustworthy evidence occasioned by the use of this narrow formula of admissibility, the Maryland courts resorted to the use of the "res gestae exception" to the hearsay rule. The intermediate appellate court felt bound to a line of Maryland cases that adopted the standard of admissibility, most succinctly[***10] stated in Burkowske v. Church Hosp. Corp., 50 Md.App. 515, 439 A.2d 40, cert. denied, 293 Md. 331 (1982), "in order to bind the principal (and thus constitute an admission by it), the agent's statement not only must concern matters within the scope of his own agency authority but must also be part of the res gestae, i.e., made contemporaneously with the transaction to which it relates." (Emphasis added). Id. at 520, 439 A.2d at 44.

   This Court first fully expounded this standard for admissibility of an agent's statement in Franklin Bk. v. Steam Nav. Co., 11 G. & J. 28 (1839):
 
"So whatever is said by an agent, either in the making a contract for his principal, or at the time, and accompanying the performance of any act, within the scope of his authority, having relation to, and connected with, and in the course of the particular contract or transaction in which he is then engaged, is in legal [**644] effect, said by his principal, and admissible in evidence; not merely because it is the declaration or admission of an agent; but on the ground, that being made at the time[***11] of, and accompanying the contract or transaction, it is treated as the declaration or admission of the principal, constituting a part of the res gestae, a part of the contract or transaction, and as binding upon him as if in fact made by himself."
 
Id. at 33-34.

   We begin by acknowledging that the phrase "res gestae" is condemned in academic circles as "a substitute for reasoning" [*155] and resulting in "the confusion of thought inevitably accompanying the use of inaccurate terminology." Morgan, A Suggested Classification of Utterances Admissible as Res Gestae, 31 Yale L.Rev. 229, 229 (1923). We agree with Morgan's conclusion that "this troublesome expression owes its existence and persistence in our law of evidence to an inclination of judges and lawyers to avoid the toilsome exertion of exact analysis and precise thinking." Id.  See United States v. Matot, 146 F.2d 197, 198 (2d Cir.1944) ("[A]s for 'res gestae' . . . if it means anything but an unwillingness to think at all, what it covers cannot be put in less intelligible terms.") (L. Hand, J.); 6 Wigmore, Evidence, § 1767 at 255 (Chadbourn rev.1976) [***12] ("The phrase 'res gestae' has long been not only entirely useless, but even positively harmful."); Booth v. State, 306 Md. 313, 317 n. 3, 508 A.2d 976, 978 n. 3 (1986) quoting the above authorities.  See also Cassidy v. State, 74 Md.App. 1, 12-14, 536 A.2d 666, 671-73, cert. denied, 312 Md. 602, 541 A.2d 965 (1988) for an unbundling of the undifferentiated "res gestae" phrase.

   Despite the censure of the "res gestae" phrase, we also acknowledge that the term came into usage at a time when the theory of hearsay was not well developed and the various exceptions not clearly defined.  The rationale in Franklin supports McCormick's observation that "[t]he early texts and cases used as analogies the doctrine of the master's substantive responsibility for the acts of the agent and the notion then prevalent in evidence law that words accompanying a relevant act are admissible as part of the res gestae." McCormick on Evidence, § 267 at 787 (E. Cleary 3d ed. 1984).  Under this formulation, a principal was responsible for its agent's acts within the scope of authority or employment, [***13] but only responsible for its agent's statements concerning those acts if the statements were made under the "immediate spur" of the action.  See, e.g., Herbert v. Ziegler, 216 Md. 212, 217, 139 A.2d 699, 702 (1958).
 
   [*156] The Court applied this contemporaneity requirement to assure reliability; the close nexus in time between the statement and the event recounted presumably precluded the agent's ability to fabricate.  While contemporaneity may be a meaningful component of the hearsay exceptions for excited utterances and present sense impressions, we find it unnecessary in the case of vicarious admissions.  The admissions exception is grounded on the adversary theory of litigation.  See McCormick on Evidence, § 262 at 774-75; L. McLain, Maryland Evidence, § 801(4).1 (1987).  The rationale behind the admissibility of an admission is that "[a] party can hardly object that he had no opportunity to cross-examine himself or that he is unworthy of credence save when speaking under sanction of an oath." M. Martin, Basic Problems of Evidence, § 13.04(a)(1) (6th ed. 1988).  Further, the trustworthiness of an agent's statement is assured because: [***14] 
 
"The agent is well informed about acts in the course of the business, his statements offered against the employer are normally against the employer's interest, and while the employment continues, the employee is not likely to make the statements unless they are true.  Moreover, if the admissibility of admissions is viewed as arising from the adversary system, responsibility for statements of one's employee is a consistent aspect.  Accordingly, the predominant view now favors broader admissibility of admissions by agents if the statement concerned a matter within the scope of the declarant's [**645] employment and was made before that relationship was terminated."
 
McCormick on Evidence, § 267 at 788-89.

   Perhaps because this Court recognized this trustworthiness when addressing the admissibility of an agent's statements as part of the res gestae, it often relaxed the contemporaneity requirement to prevent the loss of reliable and probative evidence. In Patterson v. B. & O. R.R. Co., 133 Md. 276, 105 A. 159 (1918), a case factually similar to the one sub judice, this Court addressed the admissibility of statements made by the defendant's[***15] employees to the effect [*157] that they started a fire and that it got beyond their control. In holding that the employees' statements were admissible into evidence, the Court noted
 
"that there is no inflexible rule as to what lapse of time between the commission of an act and the making of the proffered declaration is sufficient to cause its rejection as not being part of the res gestae . . . .  'Time is not necessarily a controlling element or principle in the matter of res gestae.  The general rule is that a declaration sought to be proved must have been contemporaneous with the event established as the principal act; but in order to constitute declarations a part of the res gestae, it is not necessary that they shall have been precisely coincident in point of time with the principal fact.'"
 
Id. at 279-80, 105 A. at 160 (quoting 10 Ruling Case Law at 978).  See also Ziegler, 216 Md. at 217, 139 A.2d at 702; Transfer Co. v. Glass Co., 169 Md. 358, 363-64, 181 A. 672, 674 (1935); Montgomery Bus Lines v. Diehl, 158 Md. 233, 241-42, 148 A. 453, 456-57 (1930);[***16] United Rys. & Elec. Co. v. Cloman, 107 Md. 681, 687-89, 69 A. 379, 382 (1908). The end result of admissibility attained in this line of cases essentially parallels that which would have resulted from applying the standard embodied in F.R.E. 801(d)(2)(D).
 
   Unfortunately, the contemporaneity aspect of the loosely defined res gestae exception has also been strictly applied to exclude an agent's or employee's statements even though the exclusion resulted in the loss of valuable, trustworthy, and often the only probative evidence available on the issue of causation.  See Feigley, 211 Md. at 7-8, 124 A.2d at 825-26; State v. Prince George's County, 207 Md. 91, 105-06, 113 A.2d 397, 404 (1955); Dietrich v. Hall Spgs. R.R. Co., 58 Md. 347, 355-56 (1882).

   The non-uniformity in the above cited cases, a result spawned by employing the nebulous res gestae phrase, substantiates its academic and judicial condemnation.  We now jettison the res gestae terminology in favor of a more exact analysis and adopt the standard embodied in F.R.E. 801(d)(2)(D). Statements by agents[***17] concerning a matter [*158] within the scope of the agent's employment and made during the existence of the agency relationship should be admissible without the necessity of proving that the agent had authority to speak or that the statements were part of the res gestae. 

   We are cognizant of the importance of stare decisis and the resulting certainty, definition, and dependability it gives the law.  This Court, however, has noted that a common law rule may be modified where "we find, in light of changed conditions or increased knowledge, that the rule has become unsound in the circumstances of modern life . . . ." Harrison v. Mont. Co. Bd. of Educ., 295 Md. 442, 459, 456 A.2d 894, 903 (1983). Increased knowledge as well as the guidance of a significant majority of other states n3 and the federal rules convince us that the traditional common law rule on admissions by agents has proven to be too restrictive and unsound.  The authorities, both courts and commentators, have almost universally condemned the strict common law rule in favor of the expanded admissions by agents rule set forth in the federal rules. See, e.g., McCormick on Evidence[***18] , § 267; 4 Weinstein's Evidence, para. 801(d)(2)(D)[01]; 4 Wigmore, Evidence, § 1078 at 166 n. 2 (Chad[**646] bourn rev.1972); and I. Younger, Hearsay: A Practical Guide Through the Thicket, § 3.8 (1988).

n3 Appellant, in its brief, lists 33 states that have by statute, rule, or court decision jettisoned the traditional common law rule in favor of the approach adopted by the Federal Rules of Evidence.  See G. Joseph & J. Saltzburg, Evidence in America, Ch. 56 at 19-22 (1987).

   This change in our law will place Maryland in accord with the clear majority of states that have adopted the principle embodied in F.R.E. 801(d)(2)(D) either by statute, rule, or decision.  See 2 G. Joseph & J. Saltzburg, Evidence in America, Ch. 56 at 19-22 (1987), and Ruszcyk v. Secretary of Public Safety, 401 Mass. 418, 517 N.E.2d 152 (1988). We note that the Evidence Subcommittee, which is engaged in drafting a proposed Maryland Code of Evidence to be submitted to the Court of Appeals[***19] Rules Committee and [*159] then to this Court, has recommended the change we now adopt.  See Maryland Evidence Subcommittee Draft of Rule 5-803(a)(4) proposing that "a statement made by a party's agent or employee concerning a matter within the scope of agency or employment" be admissible against the party opponent.  Weinstein summarizes the underlying policy considerations that have prompted the widespread adoption of F.R.E. 801(d)(2)(D):

   "Often, of course, particularly in tort cases, the agent was the only one who knew what happened.

   * * *

   Rule 801(d)(2)(D) adopts the approach pioneered by Model Code Rule 508(a) and endorsed by Uniform Rule 63(9)(a) which, as a general proposition, makes statements made by agents within the scope of their employment admissible . . . .  Once agency, and the making of the statement while the relationship continues, are established, the statement is exempt from the hearsay rule so long as it relates to a matter within the scope of the agency.  '[T]he authority to do an act would conclusively imply authority to speak narratively about the act, if the utterance was made before the termination of the agency.'

   * * *

   The arguments for broadening[***20] the traditional narrow formulation were well stated by Professor Brooks, the Reporter for the New Jersey Committee which endorsed adoption of Uniform Rule 63(9)(a) for that state: 'The argument for the Rule is, first, one of necessity.  Unless it is adopted many valid admissions which would help in the effective disposition of litigation would be lost . . . .  To continue the restriction on this exception would be to immunize all principals from statements made by their working agents and employees who transact their business . . . .'" (Emphasis added, footnotes omitted).
 
4 Weinstein's Evidence, para. 801(d)(2)(D)[01] at 219-25.

   Principles of fairness would also justify the adoption of the rule embraced by F.R.E. 801(d)(2)(D).  As stated in the [*160] Official Comments to La.Code Evid. 801(D)(3)(a): "[I]t may be said that, in accord with principles of substantive law, one who undertakes to create an agency relationship should generally be made to reap the deleterious as well as the beneficial effects of what the agent sows." Hearsay is inadmissible primarily because of the lack of cross-examination to test for flawed perception, memory, or sincerity.  When an employer[***21] entrusts responsibility for a job to an employee, it relies on the latter's perceptions, abilities, and judgments and consequently can be vicariously liable for any resulting deficiencies.  It seems unfair to allow an employer to challenge an agent's relevant statements as hearsay merely because the employer has not had an opportunity to impugn through cross-examination the agent's perception, memory, or sincerity.  Therefore, just as an employer is vicariously liable for the acts of its employees within the scope of employment, so too should the employer be vicariously liable for the statements of its employees concerning those acts.

   The seeming unfairness of allowing an employer to reap the benefits of its employee's labor, yet remain immune from a statement by the latter about his assigned tasks, led to a number of pre-rules decisions rejecting the traditional limit.  See 4 D. Louisell & R. Mueller, Federal Evidence, § 426 (1980).  For example, the United States District Court for the Dis[**647] trict of Columbia rejected the traditional common law rule and admitted a truck driver's statement after an accident.
 
"To say, in these circumstances, that the owner of a [***22] motor truck may constitute a person his agent for the purpose of the operation of such truck over public streets and highways, and to say at the same time that such operator is no longer the agent of such owner when an accident occurs, for the purpose of truthfully relating the facts concerning the occurrence to an investigating police officer on the scene shortly thereafter, seems to me to erect an untenable fiction, neither contemplated by the parties nor sanctioned by public policy.  It is almost like [*161] saying that [an admission] in the instant case could only have been made had the truck been operated by an officer or the board of directors of the Corporation owning the truck; and trucks are not operated that way.  To exclude the statement of the driver of the truck as to the speed of the truck at the time of the collision . . . would be to deny an agency which I believe inherently exists regardless of whether the statement is made at the moment of the impact, or some minutes later to an investigating officer, or other authorized person."
 
Martin v. Savage Truck Line, 121 F.Supp. 417, 419 (D.D.C.1954).

   The Supreme Judicial Court of Massachusetts modified[***23] its common law by adopting the principles of F.R.E. 801(d)(2)(D) and concluded that such adoption
 
"will not automatically result in the admissibility of vicarious admissions of questionable reliability.  Rather, this approach will simply remove vicarious admissions from the blanket interdiction of the hearsay rule. Instead, discretion is vested in the judge to determine whether the probative value of the evidence is substantially outweighed by its potential for unfair prejudice to the opponent of its admissibility."
 
Ruszcyk, 401 Mass. 418, 517 N.E.2d at 155. See also Briggeman v. Albert, 322 Md. 133, 138-39, 586 A.2d 15, 17 (1991).

   To the extent that language in some of our opinions is inconsistent with the holding of this opinion, that language is disapproved.  We also note that the adoption of the F.R.E. 801(d)(2)(D) standard does not abrogate admissibility of an agent's statements where the agent has "speaking authority." These two grounds of admissibility coexist as do F.R.E. 801(d)(2)(C) & (D).  Henceforth, the hearsay rule does not operate to exclude a declaration that is "offered against a party and is[***24] . . . a statement by a party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship . . . ." F.R.E. 801(d)(2)(D).  There is no requirement [*162] that the agent have "speaking authority" or that the agent's statement was part of the res gestae.

   Applying the 801(d)(2)(D) standard to Grimes' statements, we find adequate evidence, independent of the statements themselves, to support the conclusions that 1) Grimes was Universal's agent; 2) Grimes' statements concerned activities undertaken in the warehouse that were within the scope of his employment; and 3) Grimes' statements were made during his employment.  Therefore, Grimes' statements should not be excluded as inadmissible hearsay. Likewise, neither the reports nor the lieutenants' testimony would be properly excluded on this ground.  We reverse the holding of the Court of Special Appeals.

   The trial court and the Court of Special Appeals also ruled that the case should not have been submitted to the jury on the theory of res ipsa loquitur. We agree.  With the admission of the lieutenants' testimony and reports, B & K would have direct evidence[***25] of negligence; therefore, a new trial on the issue of negligence is warranted.

   JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED.  CASE REMANDED TO THAT COURT WITH DIRECTIONS TO REMAND THIS CASE TO THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY FOR A NEW TRIAL ON THE ISSUE OF NEGLIGENCE.  COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID BY RESPONDENT. 

MARYLAND PENNYSAVER GROUP, INC. v. COMPTROLLER OF THETREASURY 
No. 120, September Term, 1990
 
Court of Appeals of Maryland
 
323 Md. 697; 594 A.2d 1142; 1991 Md. LEXIS 152; 19 Media L.Rep. 1937

 September  10, 1991, Filed

   PRIOR HISTORY: [***1]  
 
Appeal from the Circuit Court for  Anne Arundel  County pursuant to certiorari to Court of Special Appeals; Bruce C. Williams, Judge.

DISPOSITION: JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AFFIRMED. COSTS TO BE PAID BY THE PETITIONER.

CORE TERMS:  newspaper, regulation, pennysaver, exemption, sales tax, printing, advertising, magazine, first amendment, advertiser, shopping, exempt, periodicals, commercial speech, ink, exempted, current events, circulation, edition, refund, retail, reenactment, unemployed, invalid, tangible personal property, general public, transportation, dissemination, distributed, classified 

COUNSEL: Evelyn W. Pasquier (Shale D. Stiller, Frank, Bernstein, Conaway & Goldman, on brief), Baltimore, for petitioner.

   Gaylin Soponis, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Deborah B. Bacharach, Sheldon H. Laskin, Asst. Attys. Gen., on brief), Baltimore, for respondent.

JUDGES: Murphy, C.J., and Eldridge, Rodowsky, McAuliffe, Chasanow, Karwacki and Marvin H. Smith, Judge of the Court of Appeals (retired, specially assigned), JJ.

OPINIONBY: RODOWSKY

OPINION: [*698] [**1143] This is a sales tax refund case.  The taxpayer, Maryland Pennysaver Group, Inc. (MPG), publishes opuscules of a type known as shoppers' guides, or shopping advertisers, or pennysavers. MPG claims the statutory exemption for newspapers and that, if excluded from the exemption, its rights under the first and fourteenth amendments of the United States Constitution would be violated.  We reject these contentions for the reasons set forth below.
 
   MPG began publishing pennysavers in Maryland during the summer [***2] of 1979.  There were then no similar publications in Maryland.  Businesses pay MPG to place commercial ads in a pennysaver, and individuals pay MPG to place classified ads in a pennysaver. Pennysavers are published weekly for specific areas. n1 Pennysavers are mailed to every resident and business in the particular edition's specific [*699] area, without charge to the recipient. There is no newsstand distribution.

n1 For example, on May 18, 1983, separate pennysaver editions were published for Annapolis/Crownsville, Cape St. Claire/St. Margarets, Severna Park/Arnold, Millersville/Severn, South [Anne Arundel] County, Pasadena/Gibson Island, Glen Burnie East, Glen Burnie West/Linthicum, Bowie/Crofton, and Kent Island/Grasonville.

   MPG pennysavers are printed on newsprint in quarterfold format, as distinguished from a tabloid or broadsheet.  The pages measure 7 3/8 inches by 10 3/4 inches, and they are stitched or glued along the fold.  Prior to April 1985 MPG used an outside printer to print pennysavers, and thereafter, [***3]MPG has printed in house.  The sales tax assessment involved in the instant litigation covers the period December 1, 1982, through November 30, 1986.  It includes tax on the cost to MPG of outside printing and tax on the cost to MPG of newsprint and ink for in-house printing.

   Copies of four separate pennysavers are included in the record extract as illustrative of pennysavers published during the period covered by the tax assessment.  One is the Kent Island/Grasonville Pennysaver for the week of May 18, 1983.  The masthead occupies approximately twenty percent of the page at the top, while the balance of that page is an ad for a sports clothing store.  The edition consists of fifty-six pages, unnumbered.  With the exception of four and one-half pages, the publication is entirely ads, ranging from full page ads to two or three line classified ads.  The twenty-sixth and forty-fourth pages are headed "Community News," and the fifty-second page has one column (a half-page) headed "Community News." "Community News" consists primarily of announcements of activities, such as meetings, fundraisers, and social events, to be held by various church, civic, and other community organizations. [***4] Each of two pages of the edition contains a chapter of a serialized Western novel.  The reader is advised that the book is available in hardcover edition from MPG.

   The four illustrative pennysavers reproduced in the record extract total 249 pages.  Within that total there are three half-pages consisting of columns written respectively by the Mayor of Annapolis (on national building safety week), by a member of the Maryland House of Delegates (interviewing an Anne Arundel County police officer concerning [*700] crime prevention), and by the County Executive of Anne Arundel County (on preserving the Chesapeake Bay).

   The retail sales tax is imposed "[f]or the privilege of selling certain tangible personal property at retail . . . and for the privilege of dispensing certain selected services defined as sales at retail by § 324(f) . . . ." Maryland Code (1957, 1980 Repl. Vol.), Art. [**1144] 81, § 325(a). n2 During the assessment period, and currently, the tax rate is five percent beginning where the sales price is $.20.  § 325(a)(1).  For sales tax purposes "the term 'sale at retail' includes . . . [a]ny . . . printing of tangible personal property on special order for a consideration." § [***5] 324(f)(2).  MPG had not paid sales tax on the outside printing of its pennysavers. Nor had it paid sales tax on its ink and paper purchases for inhouse printing. n3

n2 Because we deal with sales tax and with an assessment period of 1982-1986, all Code citations, unless otherwise stated, are to Maryland Code (1957, 1980 Repl. Vol.) and to Art. 81.

   As part of the ongoing Code Revision project, the statutes relating to the sales and use taxes were recodified as part of Md.Code (1988), Tax-General Article, effective January 1, 1989.

n3 MPG has abandoned an argument that its purchases of paper and ink were not sales at retail. The argument was based on § 324(f)(iii) which excludes from sales at retail transactions in which the purpose of the purchaser is "to use or incorporate the property so transferred as a material or part of other tangible personal property to be produced for sale by manufacturing, assembling, processing or refining." Pennysavers are not sold.

   MPG paid the tax and interest assessed by the Comptroller, [***6] obtained a waiver of penalty, and sought a refund. MPG claimed exemption under § 326(n).  It provides exemption for
 
"[s]ales of transportation services, and the printing and sales of newspapers of any and all types, and the sales of any photographic materials used in the composition and printing of newspapers."
 
The term "newspaper" is not defined in the statutes.  Regulations of the Comptroller set forth standards for determining whether a publication is a newspaper. See Md. [*701] Regs.Code (COMAR), Title 3, § 06.01.05 (1990). This regulation specifically excludes a "shopping advertiser" from "newspapers." Applying the regulation, the Comptroller denied the refund.

   MPG appealed to the Maryland Tax Court.  Its petition, to the extent here relevant, averred that the Comptroller had erred because pennysavers were entitled to the § 326(n) exemption for newspapers, and because Regulation .05, both facially and as applied by the Comptroller, violated MPG's rights under the first and fourteenth amendments of the United States Constitution.  The Tax Court held that MPG's pennysavers were not newspapers of any type intended to be embraced within § 326(n), that Regulation[***7] .05 was valid, and that the pennysavers were "shopping advertisers," excluded from the exemption. Nor was there any constitutional violation, in the Tax Court's opinion, because MPG's publications were "not within the class (newspaper)" with which MPG sought to have its publications associated.

   The Circuit Court for Anne Arundel County, on MPG's appeal, affirmed the Maryland Tax Court.  MPG appealed to the Court of Special Appeals.  Before consideration of the matter by that court we granted MPG's petition for certiorari.  It raises two questions, the presentation of which we reorder below.
 
"[1] Do the Sales Tax Regulations improperly limit the scope of the statutory exemption from sales tax for 'the printing and sales of newspapers of any and all types'?
 
"[2] Does the Comptroller's refusal to allow the Pennysaver an exemption granted by statute for 'the printing and sales of newspapers of any and all types' violate the Petitioner's fundamental rights of free speech under the First and Fourteenth Amendments of the United States Constitution?"

   I

   The Tax Court's conclusion that MPG's pennysavers are shopping advertisers is well supported by the record, [*702] and MPG does[***8] not attack that factual finding implicit in the Tax Court's holding.  Rather, MPG's argument is that Regulation .05's exclusion of shopping advertisers from the newspaper exemption violates § 326(n) which exempts newspapers "of any and all types." The evolution of the regulation and of the exemption statute, and the regulation's status as a legislative rule, negate MPG's argument.

   [**1145] The Maryland Retail Sales Tax and Use Tax Acts were first enacted by Chapters 281 and 681 of the Acts of 1947, and codified as Md.Code (1939, 1947 Cum.Supp.), Art. 81, §§ 259-307 and §§ 308-336.  The 1947 enactment contained no exemption for the printing or sale of newspapers, and did not define that term. n4

n4 Md.Code (1939, 1947 Cum.Supp.), Art. 81, § 261(o) exempted from the tax "[s]ales of advertising space in newspapers, periodicals, and billboard advertising space, and sales of radio advertising."

   The original sales tax statute "authorized and empowered" the Comptroller, "[i]n addition to the powers granted to the Comptroller" in[***9] the sales tax sub-title
 
"[t]o make, adopt and amend such rules and regulations as he shall deem necessary to carry out the provisions of this sub-title and to define any terms used herein."
 
Code (1947 Cum.Supp.), § 301(a).  That conferral of rulemaking power remained unchanged to and through the assessment period involved here.  See § 365(a).

   Rule 5, Retail Sales and Use Tax Rules, adopted by the Comptroller in 1947, exempted receipts from the sale of newspapers. With the advent of COMAR in 1976, Rule 5 became COMAR § 03.06.01.05.  Set forth below is original Rule 5, with numerals in brackets indicating the paragraph numbering which conformed original Rule 5 to the COMAR style.

   "[.05] NEWSPAPERS

   "[A.] Receipts from the sale of newspapers are not subject to the tax.

   "[1.] In order to constitute a newspaper, the publication must contain at least the following elements:

   [*703] "(a) It must be published at stated short intervals (usually daily or weekly).

   "(b) It must not when its successive issues are put together constitute a book.

   "(c) It must be intended for circulation among the general public.

   "(d) It must contain matters of general interest and reports of current [***10]events.

   "[2.] Notwithstanding the fact that the publication may be devoted primarily to matters of specialized interest, such as legal, mercantile, political, religious or sporting matters, if in addition to the special interest it serves, the alleged newspaper contains general news of the day, information of current events and news of importance and of current interest to the general public, it is entitled to be classified as a newspaper.

   "[B.] Press clipping services are exempt from tax.

   "[C.] Sales of mailing lists are taxable.

   "[D.] Subscriptions to magazines or periodicals are not taxable, newsstand sales of the same are taxable." n5

n5 When original Rule 5 was adopted Md.Code (1939, 1947 Cum.Supp.), Art. 76, title, "Publication of Laws," § 8 contained a definition of "newspaper." That statute, enacted by Chapter 905 of the Acts of 1941, read:
 
"As used in any law, ordinance, resolution, decree, or order of court, the term 'paper', 'newspaper', 'newspaper in general circulation', 'newspaper devoted to the dissemination of general news', or terms of similar import, shall be defined as a publication having the following requirements:

   (1) It shall have at least four pages.
 
   (2) It shall habitually contain news items, legal and general intelligence, reports of current events, editorial comments, advertising matter and other miscellaneous information of public interest generally found in the ordinary newspaper.

   (3) It shall be published and distributed by sale at least once each week from an established place of business, and shall have been so published and distributed during the preceding six months, provided, however, that this six-month requirement shall not apply to any publication having actually issued one or more of its regular publications prior to June 1, 1941.

   (4) It shall have general circulation throughout the community in which it is published.

   (5) It shall be entitled to be entered as second-class matter in the United States mail, provided that nothing contained herein shall apply to Garrett County."

[***11]

   The exemption for newspapers in § 326(n) was enacted by Chapter 112 of the Acts of 1956.  As introduced, the bill [*704] would have added to the exemption in Code (1951), § 322(n) for "[s]ales of transportation and communication services," the language "[**1146] including the printing and sales of newspapers and periodicals of any and all types." Periodicals were amended out of the bill, and the effective date was postponed one year to June 1, 1957.

   Thereafter, in 1957, the Comptroller amended Rule 5 to add a paragraph which became para. E of Regulation .05 in COMAR. n6 In relevant part that paragraph read:

   "E. The law was amended, effective June 1, 1957, to specifically exempt 'the printing and sales of newspapers'. Since the sale of newspapers had already been exempted under the provisions of this regulation, the sole effect of this amendment is to exempt from tax the printing of giveaway newspapers which are printed by an outside printer for a consideration."

n6 As was required by a former Administrative Procedure Act, Acts of 1957, Chapter 94, the Comptroller's office filed amended Rule 5 with the Secretary of State on July 18, 1957.  The amendment is available at the State Archives.

[***12]

   The Comptroller's present regulation, COMAR § 03.06.01.05, that was applied in the matter before us, was promulgated by a notice of proposed rulemaking on November 17, 1978.  See 5 Md.R. 1742 (1978).  The notice states that the "regulation will provide a more precise definition of the term 'newspaper' as used in the Retail Sales Tax Act, and delete obsolete and unrelated material from the existing regulation." The regulation was adopted January 12, 1979, in the form proposed.  See 6 Md.R. 16 (1979).  It reads in relevant part:

   ".05 Newspapers.

   A. The sale of newspapers is not subject to the tax.

   [*705] (1) A publication is not a newspaper unless:

   (a) It is published and distributed no less frequently than once each week;

   (b) It does not, when its successive issues are put together, constitute a book;

   (c) It is intended for circulation among the general public;

   (d) It contains news items, legal and general intelligence, reports of current events, editorial comments, advertising matter, and other miscellaneous information of public interest generally found in the ordinary newspaper.

   (2) The criteria set forth in § A(1), above, are minimum requirements, the meeting of[***13] which does not necessarily result in a publication being classified as a newspaper. A publication which meets the criteria set forth in § A(1), above, but which is in fact a magazine, shopping advertiser, community newsletter, tip sheet, or other publication which is not a newspaper in the common and popularly-accepted usage of the term, is not a newspaper for the purpose of this exemption. A publication is not disqualified solely because it is devoted primarily to matters of specialized interest, such as legal, mercantile, political, religious, or sporting matters.

   (3) The sale of an item which is to be distributed as a component part of a newspaper, such as an advertising supplement, is not subject to the tax."

   Present Regulation .05 was in effect approximately six months before MPG started business.

   For MPG's argument to prevail this Court must conclude that the General Assembly intended "newspapers of any and all types," as used in § 326(n), to include pennysavers or shopping advertisers, so that Regulation .05's exclusion is invalid. Cf. Comptroller v. Rockhill, Inc., 205 Md. 226, 107 A.2d 93 (1954) (where statute taxed, as sales, the charges[***14] for accommodations "regularly" furnished to the public for a consideration, Comptroller's rule invalid which applied statute to "all rentals in resort areas for terms of [*706]four months or less," including occasional rentals by owners of non-investment vacation cottages).

   In common and ordinary parlance the term "newspaper" does not conjure the image of a pennysaver. In the context of a sales and use tax statute, "newspaper" has been held not to include a pennysaver; see Redwood Empire Publishing Co. v. State Bd. of Equalization, 207 Cal.App.3d 1334, 255 Cal.Rptr. 514 (1989); Green v. Home [**1147] News Publishing Co., 90 So.2d 295 (Fla. 1956); Department of Revenue v. Skop, 383 So.2d 678, 680 (Fla.App. 1980); G & B Publishing Co. v. Department of Taxation & Fin., 57 A.D.2d 18, 392 N.Y.S.2d 938, appeal denied, 42 N.Y.2d 807, 368 N.E.2d 45, 398 N.Y.S.2d 1029 (1977); Memphis Shoppers News, Inc. v. Woods, 584 S.W.2d 196 (Tenn. 1979); Shoppers Guide Publishing Co. v. Woods, 547 S.W.2d 561 (Tenn. 1977);[***15] and not to include an advertising supplement; see Ragland v. K-Mart Corp., 274 Ark. 297, 624 S.W.2d 430 (1981); Caldor, Inc. v. Heffernan, 183 Conn. 566, 440 A.2d 767 (1981); K Mart Corp. v. South Dakota Dep't of Revenue, 345 N.W.2d 55 (S.D. 1984); Wisconsin Dep't of Revenue v. J.C. Penney Co., 108 Wis.2d 662, 323 N.W.2d 168 (1982).

   Contra see Hadwen, Inc. v. Department of Taxes, 139 Vt. 37, 422 A.2d 255 (1980), appeal dismissed, 451 U.S. 977, 101 S.Ct. 2300, 68 L.Ed.2d 834 (1981) (a pennysaver is a newspaper); Greenfield Town Crier, Inc. v. Commissioner of Revenue, 385 Mass. 692, 433 N.E.2d 898 (1982) (publication which contained eighty-seven percent advertising but included matters of interest to a significant segment of the public was a newspaper); Sears, Roebuck & Co. v. State Tax Comm'n, 370 Mass. 127, 345 N.E.2d 893 (1976) (an advertising supplement is a newspaper); Daily Record Co. v. James, 629 S.W.2d 348 (Mo. 1982) [***16] (an advertising supplement is a newspaper).

   Even if the legislative sponsor of the exemption initially intended a very broad application for newspapers and periodicals of any and all types, the exclusion of periodicals from the bill necessarily made the meaning of "newspaper" critical to the exemption's application.  The 1957 amendment [*707]not only furnished no definition, but operated against the background of an existing regulation that required a "newspaper" to contain "general news of the day, information of current events, and news of importance and of current interest to the general public." If the Legislature intended to override the Comptroller's existing requirements and to include as "newspapers" periodicals devoted almost entirely to advertising, it would seem that the General Assembly would have adopted a statutory definition and effected a repeal of the Comptroller's existing regulatory definition.

   After the 1957 enactment, the Comptroller amended Rule 5, stating "the sole effect" of the statutory amendment was to exempt printing of giveaway newspapers. The administrator's contemporaneous interpretation of the statute saw no expansion of the regulatory definition[***17] of "newspaper"; rather, the statute expanded the prior, regulatory based, exemption for sales of newspapers to include their printing as well.

   This administrative interpretation of the effect of the 1957 statute has been confirmed by at least two amendments to § 326(n) which left the Comptroller's interpretation undisturbed.  The original Sales Tax Act had exempted "[s]ales of transportation and communication services," Code (1947 Cum.Supp.), § 261(n), and, in 1957, the newspaper exemption was tacked onto communication services by an "including." By Chapter 452 of the Acts of 1968 (1968 Md.Laws at 789), communication services were deleted from subsection (n), and the newspaper exemption was tacked onto transportation services by an "and." In 1973, by Chapter 722 of the Acts of that year, § 326(n) was repealed and reenacted in order to add the exemption for photographic materials.  These reenactments, while the Comptroller's interpretation of the effect of the 1957 newspaper exemption was expressed in the pre-1979 version of Regulation .05, are approvals by the General Assembly of that administrative interpretation.  See Washington Suburban Sanitary Comm'n v. C.I. Mitchell & Best Co., 303 Md. 544, 559, 495 A.2d 30, 37 (1985);[***18] Board of Examiners in Optometry [*708] v. Spitz, 300 Md. 466, 477, 479 A.2d 363, 369 (1984); Valentine v. Board of License Comm'rs of Anne Arundel County, 291 Md. 523, 533-34, 435 A.2d 459, 464-65 (1981).

   The above analysis has treated Rule 5 and Regulation .05 as interpretative rules.  Whether Rule 5, prior to 1957, validly exercised the Comptroller's rule-making power [**1148] under the Sales Tax Act to exempt sales of newspapers is perhaps only of historic interest today.  The 1957 statute ratified Rule 5 as to sales and extended the exemption to printing. But the 1957 statute left undisturbed the administrative exercise of the power delegated to the Comptroller by the General Assembly to state the criteria which must be satisfied in order for a publication to be a newspaper for § 326(n) purposes. Regulation .05, pre- and post-1979, is a legislative rule.

   The significance of the distinction between interpretative and legislative rules was stated by the Court in Batterton v. Francis, 432 U.S. 416, 97 S.Ct. 2399, 53 L.Ed.2d 448 (1977), where the issue was the meaning of "unemployed" [***19]in federal statutes establishing an experimental program for aid for dependent children of unemployed fathers (AFDC-UF).  The district court had held that a person discharged for cause was unemployed, because that person was out of work.  The Court approved a legislative rule, adopted by the delegate of the Secretary of the Department of Health, Education and Welfare, which excluded from unemployed persons those out of work because they had been discharged for misconduct.  The Court reasoned:
 
"Congress . . . expressly delegated to the Secretary the power to prescribe standards for determining what constitutes 'unemployment' for purposes of AFDC-UF eligibility.  In a situation of this kind, Congress entrusts to the Secretary, rather than to the courts, the primary responsibility for interpreting the statutory term.  In exercising that responsibility, the Secretary adopts regulations with legislative effect.  A reviewing court is not free to set aside those regulations simply because it would have interpreted the statute in a different manner.

   [*709] "The regulation at issue in this case is therefore entitled to more than mere deference or weight.  It can be set aside only[***20] if the Secretary exceeded his statutory authority or if the regulation is 'arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.'"
 
Id. at 425-26, 97 S.Ct. at 2405-06 (citations and footnotes omitted).  See also id. at 425 n. 9, 97 S.Ct. at 2405 n. 9; 2 K. Davis, Administrative Law Treatise § 7:11, at 57 (2d ed. 1979).

   Nor did the Comptroller exceed the powers delegated by the General Assembly when the Comptroller amended Regulation .05 in 1979, in order to provide "a more precise definition" which "may result in the collection of taxes on certain sales upon which taxes are not presently being collected because of possible ambiguities in the existing regulation." 5 Md.R. 1742 (1978).  The delegated rulemaking power is "[t]o make, adopt and amend." § 365(a).  Even if the 1979 amendment of the regulation somewhat narrowed the scope of the exemption, the amendment is not thereby invalid. See Dickman v. Commissioner of Internal Revenue, 465 U.S. 330, 342-43, 104 S.Ct. 1086, 1093-94, 79 L.Ed.2d 343, 353-54 (1984) (commissioner[***21] may change an earlier interpretation and, for the first time, construe gift tax statutes to tax the value of the use of money); National Muffler Dealers Ass'n v. United States, 440 U.S. 472, 99 S.Ct. 1304, 59 L.Ed.2d 519 (1979) (approving amendment of regulation narrowing exemption for a "business league" to require promotion of the general objects of one or more lines of business).

   The reenactment of § 326(n) after the 1957 modification of Rule 5 and before the 1979 amendment of Regulation .05 did not freeze the regulatory construction of § 326(n) so as to prevent any narrowing of the exemption in the 1979 regulation. The reason was well explained by Justice Douglas for the Court in Helvering v. Wilshire Oil Co., 308 U.S. 90, 60 S.Ct. 18, 84 L.Ed. 101 (1939).
 
[*710] "[Reenactment] does not mean that a regulation interpreting a provision of one act becomes frozen into another act merely by reenactment of that provision, so that that administrative interpretation cannot be changed prospectively through exercise of appropriate rule-making powers.  The contrary conclusion would not only drastically[***22] curtail the scope and materially impair the flexibility of administrative action; it would produce a most [**1149] awkward situation.  Outstanding regulations which had survived one Act could be changed only after a preview by the Congress.  In preparation for a new revenue Act the Commissioner would have to prepare in advance new regulations covering old provisions.  Their effectiveness would have to await Congressional approval of the new Act.  The effect of such procedure, so far as time is concerned, would be precisely the same as if these new regulations were submitted to the Congress for approval.  Such dilution of administrative powers would deprive the administrative process of some of its most valuable qualities -- ease of adjustment to change, flexibility in light of experience, swiftness in meeting new or emergency situations.  It would make the administrative process under these circumstances cumbersome and slow.  Known inequities in existing regulations would have to await the advent of a new revenue act. Paralysis in effort to keep abreast of changes in business practices and new conditions would redound at times to the detriment of the revenue; at times to the disadvantage [***23] of the taxpayer.  Likewise the result would be to read into the grant of express administrative powers an implied condition that they were not to be exercised unless, in effect, the Congress had consented.  We do not believe that such impairment of the administrative process is consistent with the statutory scheme which the Congress has designed."
 
Id. at 100-01, 60 S.Ct. at 24 (citations omitted).

   For these reasons, the Maryland Tax Court correctly applied § 326(n) and Regulation .05 in denying exemption [*711] and refund to MPG. n7

n7 We have reviewed two documents offered by MPG that the Tax Court excluded from evidence, namely, a letter by the Anne Arundel County Executive on the occasion of National Free Paper Week and an article from the Wall Street Journal describing the competitive threat of pennysavers to the advertising revenues of daily newspapers. Because neither alters the legal effect of Regulation .05 or our construction of § 326(n), any error in the exclusion of the tendered exhibits was not prejudicial.

[***24]

   II

   A

   MPG submits that the analysis set forth in Part I, supra, renders Regulation .05 unconstitutional.  It says that it may not be excluded from the class of newspapers exempted under § 326(n) based on the content of its publication. MPG's argument fails under the holding and analysis in the Court's most recent explication of the first amendment's protection against discriminatory taxation, Leathers v. Medlock,    U.S.   , 111 S.Ct. 1438, 113 L.Ed.2d 494 (1991).

   Leathers involved the Arkansas gross receipts tax, imposed on the receipts from sales of all tangible personal property and of certain services.  Newspaper sales, by subscription and over the counter, and subscription sales of magazines were exempt. The complaining taxpayers were owners of cable television systems whose services were made taxable in 1987.  Satellite broadcast services to home dish-antennae owners were made taxable in 1989.  The Arkansas Supreme Court concluded that both cable and satellite broadcast services were of the same medium and that the Arkansas tax scheme was unconstitutional during the period of disparate treatment of the two services.  Leathers held[***25] "that the State's extension of its generally applicable sales tax to cable television services alone, or to cable and satellite services, while exempting the print media, does not violate the First Amendment."    U.S. at    , 111 S.Ct. at 1447. 

   [*712] The Supreme Court has "said repeatedly that a State may impose on the press a generally applicable tax." Leathers,    U.S. at    , 111 S.Ct. at 1444, citing Swaggart Ministries v. Board of Equalization of California, 493 U.S. 378,    , 110 S.Ct. 688, 695, 107 L.Ed.2d 796, 808 (1990); Arkansas Writers' Project, Inc. v. Ragland, 481 U.S. 221, 229, 107 S.Ct. 1722, 1727, 95 L.Ed.2d 209, 219 (1987); Minneapolis Star & Tribune Co. v. Minnesota Comm'r of Revenue, 460 U.S. 575, 586 & n. 9, 103 [**1150] S.Ct. 1365, 1372-73 & n. 9, 75 L.Ed.2d 295, 305 & n. 9 (1983).

   In Leathers the Court reviewed the holdings of Grosjean v. American Press Co. , 297 U.S. 233, 56 S.Ct. 444, 80 L.Ed. 660 (1936), of Minneapolis Star and of Arkansas Writers'.  Grosjean involved a Louisiana[***26] two percent gross receipts tax from advertising which applied only to publications with weekly circulations above 20,000, so that the tax fell exclusively on the thirteen largest newspapers. It was held unconstitutional. n8 Minneapolis Star involved a use tax on the cost of paper and ink which did not complement any sales tax. The first $100,000 worth of paper and ink consumed annually were exempt. Fourteen of the state's 388 paid circulation newspapers paid tax in the first year under the enactment, and sixteen out of 374 paid circulation newspapers paid the tax the following year.  Two-thirds of the tax burden fell on the petitioning taxpayer.  That tax was held to be invalid.

n8 In City of Baltimore v. A.S. Abell Co., 218 Md. 273, 145 A.2d 111 (1958), this Court described some of the background of the tax involved in Grosjean.  We said:
 
"The late Huey Long had apparently centralized the executive and legislative powers of the State of Louisiana in his own hands.  The larger newspapers were opposed to his modus operandi and did not hesitate to publish their sentiments, while the smaller periodicals were, in general, sympathetic to his cause.  One of his reputed statements is to this effect: 'For each dollar these papers (the larger ones) take in, they tell a lie.  There is no reason why the State of Louisiana should not receive two cents for each of these lies.'"
Id. at 284, 145 A.2d at 116.

[***27]

   [*713] Leathers described Arkansas Writers' as having
 
"reaffirmed the rule that selective taxation of the press through the narrow targeting of individual members offends the First Amendment. In that case, Arkansas Writers' Project sought a refund of state taxes it had paid on sales of the Arkansas Times, a general interest magazine, under Arkansas' Gross Receipts Act of 1941.  Exempt from the sales tax were receipts from sales of religious, professional, trade and sports magazines. We held that Arkansas' magazine exemption, which meant that only 'a few Arkansas magazines pay any sales tax,' operated in much the same way as did the $100,000 exemption in Minneapolis Star and therefore suffered from the same type of discrimination identified in that case.  Moreover, the basis on which the tax differentiated among magazines depended entirely on their content."
 
   U.S. at    , 111 S.Ct. at 1443 (citations omitted).

   From these cases the Court distilled its most recent statement of the governing principle, as follows:
 
"These cases demonstrate that differential taxation of First Amendment speakers is constitutionally suspect when it threatens to suppress the[***28] expression of particular ideas or viewpoints.  Absent a compelling justification, the government may not exercise its taxing power to single out the press.  The press plays a unique role as a check on government abuse, and a tax limited to the press raises concerns about censorship of critical information and opinion.  A tax is also suspect if it targets a small group of speakers.  Again, the fear is censorship of particular ideas or viewpoints. Finally, for reasons that are obvious, a tax will trigger heightened scrutiny under the First Amendment if it discriminates on the basis of the content of taxpayer speech."
 
   U.S. at    , 111 S.Ct. at 1443-44 (citations omitted).

   The Maryland sales tax is extremely broad based.  Persons who own no real property and whose income, if any, is insufficient to require the filing of a return pay the sales tax on their taxable purchases.  Within the medium of printed matter, MPG enjoys the company of publishers of [*714] hard-cover and paperback books, of magazines sold over the counter, of booklets, brochures, pamphlets, tracts, leaflets, folders, circulars, maps, directories and countless other kinds of published materials taxed in whole[***29] or in part at some stage in the process from publication to distribution to the ultimate user.  MPG shares the company [**1151] of merchants who wish to target printed advertising to their localities.  Those merchants may either pay sales tax to a job printer for preparing the material, print themselves and pay sales tax on the ink and paper, or hire the services of an organization such as MPG which will pay the tax, at least directly.  In the latter way, a merchant benefits by sharing the cost of distribution with others, all of whose ads are bundled together in a pennysaver, accompanied by a light sprinkling of local announcements.  We see no threat to the dissemination of ideas in pennysavers because newspapers satisfying Regulation .05 are not taxed on their printing and sale costs, any more than the exemption for newspapers in Arkansas threatened the dissemination of ideas by cable television in Leathers.  There is no "infringement."

   MPG, however, asserts that Regulation .05 cannot separate shopping advertisers from newspapers which contain higher ratios of non-advertising matter to advertising matter, because that is a discrimination based on content. MPG emphasizes Arkansas Writers[***30] '.  The Court there found a first amendment violation in the discrimination against a general interest magazine under the Arkansas sales tax statute which exempted sales of newspapers and of religious, professional, trade and sports magazines. Arkansas Writers' dealt with the content of non-commercial speech.  MPG's pennysavers have been excluded from the class of newspapers because of their overwhelming commercial speech content.  After Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976), a court or an administrator must determine whether speech proposes a commercial transaction in order to determine if first amendment rights have been infringed.  See also Posadas De [*715] Puerto Rico Assocs. v. Tourism Co., 478 U.S. 328, 106 S.Ct. 2968, 92 L.Ed.2d 266 (1986) (ban on advertising legalized casino gambling to local residents, as contrasted with tourists, upheld); Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 455-56, 98 S.Ct. 1912, 1918, 56 L.Ed.2d 444, 452-54 (1978) (ban on[***31] attorney's direct, in-person solicitations of prospective clients upheld).

   Even if the Maryland sales tax scheme's impact on MPG were a restriction which required analysis under the first amendment, the analysis would be that applicable to commercial speech, found, inter alia, in Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n, 447 U.S. 557, 564-66, 100 S.Ct. 2343, 2350-51, 65 L.Ed.2d 341, 349-51 (1980) (analyzing a prohibition against a public utility's advertising to encourage the consumption of electricity).  In the commercial speech model, a court must look at the content of speech to determine if it is lawful and not misleading, and particularly to determine if the restriction is more extensive than necessary to serve the governmental interest directly advanced by the restriction.  Here, there is no restriction of constitutional dimension.

   MPG says that pennysavers are not commercial speech because they have carried columns by public officials commenting on public issues.  The content of a publication, however, need not be 100% solicitation of business transactions in order to be viewed as commercial speech for first amendment[***32] purposes. Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 103 S.Ct. 2875, 77 L.Ed.2d 469 (1983), involved a ban on the unsolicited mailing of advertisements for contraceptives.  Youngs Drug Products mass mailed multi-page, multi-item flyers promoting its products, but the flyers also included truthful information relevant to family planning and the prevention of venereal disease.  Id. at 69, 103 S.Ct. at 2882. The trial court found that the mailings were commercial speech. That finding was upheld under all of the circumstances.  The Court said: 
 
"We have made clear that advertising which 'links a product to a current public debate' is not thereby entitled [*716] to the constitutional protection afforded noncommercial speech.  A company has the full panoply of protections available to its direct comments on public issues, so there is no reason for providing similar constitutional protection when such [**1152] statements are made in the context of commercial transactions."
 
463 U.S. at 68, 103 S.Ct. at 2881 (citation and footnote omitted).

   B

   MPG also [***33] contends that the term "shopping advertiser" in Regulation .05 is unconstitutionally vague.  We interpret the argument to be that a business could reasonably conclude that its publication was a shopping advertiser, and not a newspaper, because of an inability to delineate between the two, and thereby be deterred from communicating ideas because of potential liability for the tax.  It is unnecessary for us definitively to draw the line in this case.  The sales tax is unquestionably applicable to MPG's printing, paper and ink costs for its pennysavers because they are overwhelmingly advertising. Essentially MPG is arguing the possible rights of some other taxpayer as publisher of a different publication.  The United States Supreme Court recognizes an exception, in certain first amendment cases, from the traditional rules of standing, and allows a litigant to raise the first amendment rights of third parties.  This exception "has reflected the Court's judgment that the very existence of some statutes may cause persons before the Court to refrain from engaging in constitutionally protected speech or expression." Young v. American Mini Theatres, Inc., 427 U.S. 50, 60, 96 S.Ct. 2440, 2447, 49 L.Ed.2d 310, 320 (1976).[***34] Young involved a zoning restriction on adult theaters exhibiting "'material distinguished or characterized by an emphasis on matter depicting, describing or relating to "Specified Sexual Activities" or "Specified Anatomical Areas."'" Id. at 53, 96 S.Ct. at 2444. In Young the reason for the exception to the standing requirement did not apply.  The Court said:
 
[*717] "Since there is surely a less vital interest in the uninhibited exhibition of material that is on the borderline between pornography and artistic expression than in the free dissemination of ideas of social and political significance, and since the limited amount of uncertainty in the ordinances is easily susceptible of a narrowing construction, we think this is an inappropriate case in which to adjudicate the hypothetical claims of persons not before the Court."
 
Id. at 61, 96 S.Ct. at 2448. MPG's commercial speech is also in an intermediate category of speech.  See L. Tribe, American Constitutional Law § 12-18, at 939-40 (2d ed. 1988).  We need not decide a hypothetical, closer case at the instance of MPG. [***35]

   There is no constitutional violation.
 
   JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AFFIRMED.  COSTS TO BE PAID BY THE PETITIONER. 

STATE OF MARYLAND, DEPARTMENT OF ECONOMIC AND COMMUNITYDEVELOPMENT v. ATTMAN/GLAZER P.B. COMPANY 
No. 130
 
Court of Appeals of Maryland
 
1991 Md. LEXIS 140

 August  26, 1991, Filed

   PRIOR HISTORY: [*1]  
 
Appeal from the Circuit Court for  Anne Arundel  County pursuant to certiorari to Court of Special Appeals; Lawrence H. Rushworth, Judge.

CORE TERMS:  lease, rent, lessee, basement, lessor, space, appraiser, condemnation, increased rent, appraisal, jury trial, acquisition, conversion, storage, usable, leased, tenant, storage space, office space, converted, tenancy, condemnation proceeding, pay rent, appropriated, converting, renewal, condemn, default, owed, landlord

COUNSEL: ARGUED BY Evelyn O. Cannon, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General, Lucy Cardwell, Assistant Attorney General, Douglas N. Silber, Assistant Attorney General, all on brief) all of Baltimore, Maryland, FOR PETITIONER/CROSS-RESPONDENT.

   ARGUED BY Kurt J. Fischer (Francis B. Burch, Jr., Robert J. Mathias, Thomas P. Lloyd, Piper & Marbury, all on brief) all of Baltimore, Maryland, FOR RESPONDENT/CROSS-PETITIONER.

JUDGES: Murphy, C. J., Eldridge, Rodowsky, McAuliffe, Chasanow, Karwacki, JJ. Opinion by Karwacki, J.

OPINIONBY: KARWACKI

OPINION: On May 21, 1981, Attman/Glazer P.B. Company (AG), a limited partnership, leased an office building which it was to construct on land to be known as 45 Calvert Street in Annapolis to the State of Maryland for use of the Department of Economic and Community Development (DECD). The lease was restated by the parties with slight modifications on February 4, 1982. The original term of the lease was for five years, but the State was given the option to renew the lease for two additional terms of five years each. [*2] The building was completed, and by amendment to the lease, the parties agreed that the original term of the lease would commence on October 29, 1983.

   The rent for the leased premises was based upon the building's net usable office space and net usable storage space. n1 After completion of the building, it was determined that it contained 75,000 square feet of net usable office space and 10,000 square feet of net usable storage space. The State paid rent based upon this determination from the commencement of the lease term on October 29, 1983.

n1 Paragraph 14 of the restated lease of February 4, 1982, provided in pertinent part:

   "The rent for the Premises will be based upon the following schedule showing rent per net usable square foot: 

                          Office              Storage
                           Space               Space
Initial              $  9.50 per square    $ 3.50 per square
                                   foot                 foot
First Renewal        $ 10.50 per square    $ 4.00 per square
Term                               foot                 foot
Second Renewal       $ 11.50 per square    $ 4.50 per square
                                   foot                 foot

 
 
It is understood and agreed that the total rents and net usable square footage quoted in this Lease are approximate. However, it is further understood and agreed that if the Premises are completed substantially in accordance with the Plans and Specifications, the Premises, upon completion, should contain (a) not fewer than 77,000 net usable square feet of office space. . . .

   Upon completion of the Premises, the lessor and Lessee shall by mutual agreement determine the exact net usable square footage of the Premises."

[*3]

   Under the lease, the State, as lessee, only had the right to make improvements to the premises with the prior written consent of AG. n2 On May 2, 1985, Mr. John Juba of DECD wrote AG, requesting permission to convert a portion of the basement of the building from storage to office use. Mr. Lowell R. Glazer, a general partner of AG, replied by letter of May 7, 1985, stating:
 
"Dear Mr. Juba:

   I received your request of May 2 for additional office space and conference room in the basement at 45 Calvert Street. You have my permission to proceed.

   I must remind you that we are still in the final stages of obtaining our occupancy permit and you might experience difficulty in obtaining permits and approval from the City of Annapolis.

   You can be assured that you will have our full cooperation.

   I am forwarding a copy of this letter and your specifications to Steve Harris so that we might help you coordinate your work with the City.

   I will also have to review the area being remodeled to see what classification it is on the original basement allocation of rent. If some of the storage area is now being converted to office space, it will have to be reflected in the rent.

   If you need any additional[*4] information, please do not hesitate to contact me."
 
Over the next three years the improvements were completed at a cost to the State in excess of $165,000. Attman/Glazer Building Co., which is owned by the general partners of AG, was the general contractor for this conversion of 8,000 square feet of storage space to office space.

n2 Paragraph Six of the Restated Lease of February 4, 1982 provides:

   "SIX: The lessee shall not make any alterations, additions, or improvements to the Premises without the Lessor's prior written consent, and all alterations, additions or improvements made by either of the parties hereto upon the Premises shall be the property of the Lessor and shall remain upon and be surrendered with the Premises at the termination of this lease."

   The State continued to pay rent based on the original allocation of office and storage space for the next four years. AG never made any demand for increased rent which Mr. Glazer had referred to in his letter approving the conversion of space in the basement[*5] of the building. At trial, he explained that AG was silent on the issue of increased rent because "we had what we felt was a . . . good tenant in a building on a long-term lease."

   On March 9, 1988, the State notified AG that it was exercising its option to renew the lease for an additional five year term. On May 2, 1988, the State sent AG a copy of the agenda item of the Board of Public Works approving that renewal. That agenda item noted that the State would continue to pay rent for 75,000 square feet of office space and 10,000 square feet of storage space.

   In its Budget Bill for fiscal year 1990, which became effective on July 1, 1989, the General Assembly appropriated funds for the State's acquisition of the building it was leasing from AG at 45 Calvert Street in Annapolis. That acquisition had been contemplated by the State and AG since the inception of the State's tenancy. Paragraph 22 of the lease provided:

   "The Lessee has advised the Lessor that it anticipates that it may effect the condemnation of the Premises and all of the land appurtenant thereto (comprising approximately .946 acres) during the term of this Lease or any renewal term thereof. In the event that the property[*6] is condemned by the Lessee (or any agency or instrumentality of the Lessee) during the term of this Lease or any renewal thereof, and if such Petition for Condemnation contains an offer based on the average of three appraisals obtained as specified below, net of all costs incident to the condemnation proceedings and transfer of title for the property anticipated to be condemned, the Lessor agrees, intending to be absolutely bound hereby (i) to admit the public necessity for and valid public purpose of such condemnation and (ii) to accept the sum based on the average of the three appraisals for its interest in the property. The Lessor and the Lessee agree that the foregoing agreements of the Lessor shall be null, void and of no effect whatsoever (and shall not be admitted into evidence in any condemnation proceeding) unless the Lessee offers the sum based on the average of the three appraisals for the property in a Condemnation Petition filed during the term of this Lease or any renewal thereof."
 
It was undisputed at trial that this method of acquisition was chosen over a purchase option in the lease in part because of objections which the City of Annapolis had to the development[*7] of a building at the site of 45 Calvert Street by AG which might be offered for sale to a public agency, thereby removing that real estate from its assessable tax base. (The building site was located in an urban renewal area over which the City of Annapolis possessed development control.) n3 It was also undisputed that the condemnation mode of acquisition by the State was preferred by the partners of AG because they would receive more beneficial federal and state income tax treatment from such an acquisition than from a sale of the property.

n3 In Attman v. Mayor, 314 Md. 675, 552 A.2d 1277 (1989), we dealt with a dispute which had arisen between AG and the City of Annapolis in relation to conditions which the City had placed upon AG's development of 45 Calvert Street. 

   AG had followed the State budget process and was aware in December of 1988 of the distinct possibility that the State would condemn its interest in the property. On March 28, 1989, Mr. Glazer wrote to the State demanding[*8] increased rent for the 8,000 square feet of basement area in the building which had been converted from storage to office space. He proposed that the increase would be effective with the first monthly installment of rent due by the State in November of 1988 by virtue of the renewal of the lease effective on October 29, 1988. In June, 1989, AG retained a real estate appraiser, M. Ronald Lipman, to evaluate the value of its interest in 45 Calvert Street.

   As AG expected, on July 6, 1989, the State notified AG that it was initiating steps for its possible condemnation of the property pursuant to Paragraph 22 of the Lease. n4 Also, on July 11, 1989, it replied to Mr. Glazer's letter of March 28, 1989, stating:

   "Our records indicate that the State has paid all costs connected with the conversion of storage space to other uses. Therefore, we do not believe you have any cause to change the rent as stated in the original lease document."

 n4 Paragraph 22 of the lease specified those steps:

   "The appraisers shall be selected and the value of the property determined as follows:

   (a) The Lessee shall notify the Lessor of its intent to enter condemnation proceedings.

   (b) The Lessor and the Lessee shall each select an appraiser within 30 days of the time the notice is received by the Lessor.

   (c) The two selected appraisers shall select a third appraiser within 15 days thereafter.

   (d) The appraisers shall submit their appraisals to the Department of General Services within 45 days of the time all three appraisers have been selected. Such appraisals shall not include the fit-up items for which the Lessor shall have been reimbursed under Paragraph Thirteen.

   (e) The Department of General Services shall be permitted 60 days from the receipt of all appraisals to review the appraisals and an additional 20 days to file its petition for condemnation.

   (f) The Lessee shall pay for the fee of the appraiser selected by the Lessee; the Lessor shall pay for the fee of the appraiser selected by the Lessor; and the parties shall equally share the payment of the fee of the appraiser selected by the other two appraisers."

[*9]

   Consistent with Paragraph 22 of the lease, the State and AG named experts to appraise 45 Calvert Street. The State selected Donald Urquhart, and AG named M. Ronald Lipman. Urquhart and Lipman jointly selected Mr. Philip Klein to serve as the third appraiser. Before any of the appraisals had been completed, an attorney representing AG wrote to the appraisers, requesting that each compute alternative valuations of the property: one based its value after deducting the leasehold interest of the State and the other disregarding the existence of the lease. Each of the appraisers complied. The average of the three appraisals which took the State's leasehold interest into account was $7,583,333; the average appraisal value disregarding the lease was $9,550,000.

   While the appraisals were being formulated, Mr. Glazer wrote to the State on October 19, 1989, again demanding increased rent for the 8,000 square feet of basement area that had been converted from storage use to office space from October 29, 1988, until the State acquired the leased premises by condemnation. That letter concluded:
 
"Pursuant to Paragraph 27 of the Lease Agreement, this letter will constitute written notice of the[*10] default by the State. If the State has not cured this default within 45 days, we will be forced to terminate the lease and take possession of the premises.

   If you have any questions with regard to this matter, please do not hesitate to contact me."
  
Responding on November 27, 1989, the State's representative wrote:

   "Our office has reviewed your request for additional rent monies concerning storage space that was converted to office use. As we have previously explained, we do not feel obligated in any way to adjust the rent since all conversion was done at the State's expense. We do not believe that we are in default of the lease agreement as you have stated in your letter.

   However, in order to fully protect our interests, if you do not rescind your demand for rent by the end of the week, the State will file a declaratory judgment action in order to ensure that our full interests under the lease are protected."
 
On December 4, 1989, the State filed a Complaint for Declaratory and Equitable Relief in the Circuit Court for Anne Arundel County (Civil Action No. 3113812). It sought a declaration that (1) AG had waived any right it may have had to declare the State in default on the lease[*11] for not paying higher rent on the space which had been converted from storage to office use; (2) if AG had not waived the right to higher rent for the converted space, the State was entitled to credit for the cost of converting the space; and (3) the State was not in default on the lease because the cost of converting the space exceeded the alleged rent due. It also asked for an order enjoining AG from commencing any eviction proceeding to regain possession of 45 Calvert Street and for any other and further relief to which it might be entitled. AG filed an answer to the complaint. Neither party requested a jury trial.

   On January 19, 1990, the State filed a petition in the same court (Civil Action No. 1121327) to condemn AG's interest in 45 Calvert Street. On February 16, 1990, the State amended that petition to offer $7,583,333 for AG's interest, net of all costs incident to the condemnation proceedings and transfer of title for the property. In its answer to the amended petition for condemnation, AG refused to admit that the condemnation was for a valid public purpose and denied that the amount offered was proper. Thereafter, the State amended its action for declaratory and equitable[*12] relief by adding a Count II in which it sought specific performance by AG of its obligations under Paragraph 22 of the lease. AG answered the amended complaint and demanded a trial by jury. On the State's motion, AG's jury trial demand was stricken.

   After a bench trial, the court ordered:

   (1) that AG was compelled to admit the public necessity for and valid public purpose of the action to condemn AG's interest in 45 Calvert Street and to accept the sum of $7,583,333 for that interest;

   (2) that State should pay AG increased rent from November 1988 forward associated with the conversion of the space in the basement of the leased premise from storage to office use until the State remits payment to AG of the award in the pending condemnation action; and

   (3) State should set off against the additional rent that amount which it expended in the conversion of the basement space.
 
The court stayed further proceedings in the condemnation action pending appellate review of its judgment in the instant case.
 
   Both parties appealed to the Court of Special Appeals. Thereafter, we granted both parties' petitions for a writ of certiorari prior to consideration of the case by the intermediate appellate[*13] court.

   In its appeal the State presents these questions:

   "1. Does the State's obligation to pay rent terminate after the State exercises an option to purchase through the initiation of a condemnation proceeding?

   2. May a circuit court order the State to pay rent when no funds have been appropriated for that purpose?"

   AG in its cross-appeal raises these issues:

   "1. Did the circuit court err by interpreting Paragraph 22 of the Lease Agreement between the State and Attman/Glazer to require that the State's below-market leasehold interest rate be considered in determining the compensation due to Attman/Glazer upon the State's acquisition of the building?

   2. Did the circuit court err by striking Attman/Glazer's Demand for Jury Trial when Attman/Glazer's demand was made within 15 days of filing the Answer to the Amended Complaint?

   3. Did the circuit court err by ruling that increased rent to which Attman/Glazer was entitled under Paragraph 14 of the Lease Agreement must be offset by the State's cost of making improvements when the lease expressly provided for increased rent, but did not provide for an offset?"
 
We will address the questions presented by AG in its cross-appeal before turning [*14] our attention to the issues raised by the State's appeal.

   I.

   Paragraph 22 of the lease contains the agreement of the parties as to the compensation due AG in the event that the State opted to exercise its absolute right of eminent domain over AG's interest in the property during the original term of the lease or during any renewal term. As we noted earlier, this agreement was entered deliberately because the City of Annapolis had conditioned AG's right to develop 45 Calvert Street on AG's promise that it would not sell the property to a public agency and on AG's desire to gain preferential income tax treatment for its partners on any acquisition of the property by the State. AG argues that Paragraph 22 is ambiguous as to the compensation due AG in any condemnation by the State. It posits, therefore, that the trial court improperly excluded parol evidence as to the subjective intent of the parties when they entered the agreement. We disagree and explain.

   We have long adhered to the law of objective interpretation of contracts. Cloverland Dairy Farms, Inc. v. Fry, 322 Md. 367, 373, 587 A.2d 527, 530 (1991); Feick v. Thrutchly, 322 Md. 111, 114, 586 A.2d 3, 4 (1991);[*15] General Motors Acceptance Corp. v. Daniels, 303 Md. 254, 261, 492 A.2d 1306, 1310 (1985); Orkin v. Jacobson, 274 Md. 124, 128, 332 A.2d 901, 903 (1975); Kasten Constr. v. Rod Enterprises, 268 Md. 318, 329, 301 A.2d 12, 18 (1973). Thus, in interpreting a contract the court must
  
"determine from the language of the agreement itself what a reasonable person in the position of the parties would have meant at the time it was effectuated. In addition, when the language of the contract is plain and unambiguous there is no room for construction, and a court must presume that the parties meant what they expressed. In these circumstances, the true test of what is meant is not what the parties to the contract intended it to mean, but what a reasonable person in the position of the parties would have thought it meant. Consequently, the clear and unambiguous language of an agreement will not give away to what the parties thought that the agreement meant or intended it to mean."
 
General Motors Acceptance Corp. v. Daniels, 303 Md. at 261, 492 A.2d at 1310. The test of[*16] ambiguity is whether, considering "the character of the contract, its purpose, and the facts and circumstances of the parties at the time of execution," Pacific Indem. Co. v. Interstate Fire & Cas. Co., 302 Md. 383, 388, 488 A.2d 486, 488 (1985), the language used in the contract, when read by a reasonably prudent person, is susceptible of more than one meaning. Heat & Power v. Air Products, 320 Md. 584, 596, 578 A.2d 1202, 1208 (1990). Applying that test, we perceive no ambiguity in Paragraph 22 of the lease.

   At the time of execution of the lease, the parties were entering upon a landlord-tenant relationship which could extend for a 15 year period but which both were aware would probably be shorter since the State anticipated exercising its absolute right to condemn its landlord's interest in the leased premises. The sophisticated and well-represented landlord and tenant obviously wished to avoid the uncertainty, delay and expense incident to a contested condemnation proceeding and hence the raison d'etre for Paragraph 22; they agreed in advance to a method of valuating AG's interest in the premises should that interest [*17]be condemned by the State during the tenancy which was created by the lease. During that tenancy, AG's interest in the property consisted of a fee simple estate which was encumbered by the lease. That was the interest which was subject to the State's acquisition through its power of eminent domain. See, Heritage Realty Inc. v. City of Baltimore, 252 Md. 1, 11, 248 A.2d 898, 904-05 (1969); cf. City of Baton Rouge v. Tallier, 401 So.2d 422 (La. App. 1981); County of Los Angeles v. American Savings & Loan Ass'n, 102 Cal. Rptr. 439 (Cal. App. 1972). In valuing that encumbered fee simple interest in a condemnation proceeding "the value of the unencumbered fee is determined and value of the leasehold deducted therefrom." 4 Nichols' The Law of Eminent Domain, § 12D.04 [2] at 12D-41 (3rd ed. 1990). Consequently, the court did not err when it considered the language of Paragraph 22 of the lease objectively and concluded that when AG agreed "to be absolutely bound . . . to accept the sum based on the average of the three appraisals for its interest in the property," that interest was a reversionary interest and not [*18] a fee simple absolute interest in 45 Calvert Street and was to be valued as such.

   II.

   AG asserts that the court erroneously struck the demand for jury trial which accompanied its answer to the amended complaint in the instant case. Neither party had demanded a jury trial when the original complaint and answer were filed five months earlier.

   Maryland Rule 2-325 provides in pertinent part:

   "(a) Demand. - Any party may elect a trial by jury of any issue triable of right by a jury by filing a demand therefor in writing either as a separate paper or separately titled at the conclusion of a pleading and immediately preceding any required certificate of service.

   (b) Waiver. - The failure of a party to file the demand within 15 days after service of the last pleading filed by any party directed to the issue constitutes a waiver of trial by jury.

   . . .

   (e) Effect of Election. - When trial by jury has been elected by any party, the action, including all claims whether asserted by way of counterclaim, cross-claim or third-party claim, as to all parties, and as to all issues triable of right by a jury, shall be designated upon the docket as a jury trial."
 
Under this rule a party [*19] is entitled to demand a jury trial on an issue triable of right by a jury where that issue is raised in an amended pleading filed after a jury trial waiver has occurred with regard to earlier pleadings in the case. P. Neimeyer and L. Richards, Maryland Rules Commentary, (1984, 1988 Supp.) p. 160.

   Although either party in the instant case might have been entitled to a jury trial on the legal issues generated in the State's original complaint seeking a declaratory judgment and AG's answer, Md. Code (1974, 1984 Repl. Vol.) § 3-404 of the Courts and Judicial Proceedings Article; Higgins v. Barnes, 310 Md. 532, 540-552, 530 A.2d 724, 728-734 (1989); Owens-Illinois Inc. v. Lake Shore Land Co., Inc., 610 F.2d 1185, 1189 (3rd Cir. 1979); 6 C. Wright & A. Miller, Federal Practice and Procedure, § 2313; F. James, Jr. and G. Hazard, Jr., Civil Procedure, § 8.10 at 383-84, both waived that right under Md. Rule 2-325(b). Thus, AG's entitlement to the jury trial it demanded depended upon whether the State's amended complaint raised an issue "triable of right by a jury."

   The sole issue raised by the State's amended complaint was whether[*20] it was entitled to specific performance of the promises which AG had made in Paragraph 22 of the lease. Patently, such an action, seeking specific performance of a contract, is one which invokes the equity jurisdiction of the court, Higgins v. Barnes, 310 Md. at 551, 530 A.2d at 733, where neither party is entitled to a trial by jury. Attorney Grievance Commission v. Kerpelman, 288 Md. 341, 355-56, 420 A.2d 940, 947-48 (1980), cert. denied, 450 U.S. 970, 101 S.C. 1492, 67 L.Ed.2d 621 (1981). Consequently, the court properly ruled that AG was not entitled to a trial by jury after the State filed its amended complaint. 

   III.

   In seeking a declaratory judgment as to its liability for increased rent under the lease because of its conversion of 8,000 sq. ft. of basement space from storage to office use, the State asserted alternative defenses to AG's claim for increased rent and claimed a set off against any amount which the court might determine that it owed in additional rent. The court ruled that the State owed additional rent because of the basement conversion but that any claim [*21] for increased rent prior to the renewal of the lease on October 29, 1988, had been waived by AG. AG has not appealed that ruling on waiver. As to the State's set off claim, the court ruled that the State was entitled to a credit against the additional rent for the money it spent in converting the basement space from storage to office use. AG challenges that decision.

   Pursuant to paragraph six of the lease the State had the right to make improvements to the leased premises at its own expense with the consent of AG. That paragraph further provided that any such improvements would become the property of AG. The provisions of Paragraph 14 of the lease are equally clear that the rent owed by the State at the inception of the original lease term was subject to modification depending upon the usable office and storage space within the premises at any time during the continuance of the tenancy. Notwithstanding this plain language, the court concluded that it would be unfair for AG to realize the value of these improvements as part of the condemnation award when the improvements were paid for by the State. In so concluding, the court ignored the plain language of the lease and violated well-settled[*22] contract law.

   In West v. Flanagan, 4 Md. 36 (1853), the parties entered into a lease which expressly provided that its term was from year to year. The lessee made substantial improvements to the leased premises at his expense. When lessor gave notice to the lessee to quit the premises at year end, lessee sued to enjoin the termination of the tenancy. Lessee argued that it would be unjust to permit the tenancy to be terminated because lessor knew that he was making improvements at considerable expense upon expectation that "he would be permitted to use them, so long as they were fit to use." We reversed the issuance of an injunction preventing termination of the lease, reasoning:

   "The defendant [lessor] on the one hand relies upon the express contract between himself and the complainant [lessee], that the latter should hold and enjoy the property as tenant from year to year, as the rule by which their respective rights, in the present transaction are to be governed; while the complainant sets up an implied agreement or license creating rights wholly inconsistent with those existing under the express contract or lease. . . .

   As a general rule implied contracts[*23] are only sustained in order to supply the place of express agreements, and we know of no case where the latter have been made to yield to the former unless by the express or implied understanding of the parties that such should be the result. Indeed an express agreement, admitted to be, as this one is, in full force, negatives an implied, inconsistent agreement, relating to the same subject matter."
 
Id. 4 Md. at 56.

   Since that early case, we have repeatedly held that it is improper for the court to rewrite the terms of a contract for the parties where the terms of the contract are clear and unambiguous. e.g. Canaras v. Lift Truck Servs. Inc., 272 Md. 337, 350, 322 A.2d 866, 873 (1974); Katz v. Williams, 239 Md. 355, 361, 211 A.2d 723, 726-27 (1964).

   In concluding that the State was entitled to offset the cost of converting the basement space from the amount it owed in additional rent, the court inappropriately relied on Kimmel v. W. T. Grant Co., 233 Md. 466, 197 A.2d 122 (1964). In that case the lease gave the tenant the right to occupy only the first floor of the[*24] leased premises in return for a specified rent, but provided that, if the tenant desired to use space in the basement of the building, it could notify the landlord who was required to improve the basement area for tenant's use. If the tenant exercised that option, the lease required that additional rent be paid. The tenant paid for improvements to the basement and then occupied that space. We held that the tenant was entitled to set off the improvement costs from the increased rent owed because the lease expressly provided that the landlord would pay the costs of improving the basement. In the instant case, AG was not obligated under the lease to pay for the cost of converting the basement area of the premises from storage to office use.

   Although the court erred in allowing the set off in the amount of the cost of the conversion of basement space, the State may be entitled under its prayer for general relief to a set off based upon damages resulting from the delay in AG's performance of its duties under Paragraph 22 of the lease. Cf. Dewey Jordan v. Md.Nat'l Cap. P&P, 258 Md. 490, 500, 265 A.2d 892, 897 (1970); Hammaker v. Schleigh, 157 Md. 652, 668, 147 A. 790, 796 (1929).[*25] We shall remand the case for a determination of that issue.

   IV.

   The State argues that it was not liable for any further rent under the lease after it offered $7,583,333 for AG's interest in 45 Calvert Street in the amended petition for condemnation which it filed in Civil Action No. 1121327 on February 16, 1990. It asserts that when it made this offer in compliance with Paragraph 22 of the lease that it was exercising an option to purchase granted it under that paragraph. Consequently, it posits, AG, as lessor, was not entitled to rent after the valid exercise of an option to purchase the leased premises by the State, as lessee, citing Hanna v. Baugaen, 49 Md. App. 87, 96-97, 430 A.2d 104, 109 (1981); Young v. Cities Service, 33 Md. App. 315, 321, 364 A.2d 603, 607 (1976); United States v. Bethlehem Steel Co., 215 F. Supp. 62, 70 (D. Md. 1962) aff'd 323 F 655 (4th Cir. 1963); American Law of Property, § 3.84 (1952 ed.). This argument proceeds on a faulty premise.

   We pointed out in Part I of this opinion that Paragraph 22 of the lease was purposely structured by the parties [*26] to provide that condemnation rather then purchase should be the method by which the State could acquire 45 Calvert Street during the term of its leasehold estate. Unlike the exercise of an option to purchase by a lessee, the filing of a condemnation action by a lessee gives it no equitable title to the interest of the lessor being condemned. Washington Suburban Sanitary Comm'r v. Nash, 284 Md. 376, 381, 396 A.2d 538, 540-41 (1979). Rather, no title passes to the condemnor until payment of the award and the costs of the proceeding by the condemnor. Md. Code (1974, 1988 Repl. Vol.) § 12-108 of the Real Property Article. Accordingly, the State remains liable for rent under the lease until it pays the award and costs in the pending action to condemn 45 Calvert Street.

   V.

   Finally, the State contends that the court had no power to order it to pay rent since no money had been appropriated by the General Assembly for that purpose. We find no merit in that contention.

   Paragraph one of the lease provides:

   "Lessee covenants to pay the said specified rent at the time and in the manner above provided, which rent shall be paid out of funds appropriated therefore by[*27] the General Assembly and Federal Government. In the event such funds are not appropriated the Lessee shall have the unrestricted right to terminate this lease upon 90 days prior written notice or upon the effective date of the termination of funds, whichever shall first occur."
 
Under that provision the State could have vacated the leased premises at any time without further liability for rent if no funds were appropriated for that purpose. When, however, the State elected to continue to occupy the premises, it was required by the 14th Amendment to the United States Constitution and Article III, § 40 of the Maryland Constitution to pay the fair rental value of the property. Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 434-35, 102 S.Ct.3164, 3175-76, 73 L.Ed.2d 868, 881-82 (1982); United States v. General Motors Corp., 323 U.S. 373, 382, 65 S.Ct. 357, 361, 89 L.Ed. 311, 320-21 (1945); 2 Nichols' The Law of Eminent Domain, § 6.02 at 6-22 (3rd ed. 1990). Accordingly, the court properly declared that, if the State was to continue to occupy AG's property until its acquisition in the condemnation[*28] proceeding, it must continue to pay rent. 

Barbara J. McCREADY a/k/a Barbara Jean O'Daniel v. TimothyP. McCREADY 
No. 11, September Term, 1990
 
Court of Appeals of Maryland
 
323 Md. 476; 593 A.2d 1128; 1991 Md. LEXIS 134
 
   August  21, 1991, Filed

   PRIOR HISTORY: [***1]  
 
Appeal from the Circuit Court for  Anne Arundel  County, pursuant to certiorari to Court of Special Appeals; Robert H. Heller, Jr., Judge.

DISPOSITION: JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AFFIRMED, WITH COSTS.

CORE TERMS:  custody, chancellor, best interest, physical custody, weekend, joint legal custody, custody order, modification, stability, relitigate, decree, abused, primary physical custody, material change, child custody, accommodate, visitation, permanent, evening, weekday, occurring, parental, amicable, temporary custody, joint custody, time of trial, medical care, long range, counterclaim, selfishness

COUNSEL: Roger A. Perkins, Annapolis, for appellant.

   William M. Ferris (Michaelson, Krause & Ferris, P.A., Annapolis), on brief, for appellee.

JUDGES: Murphy, C.J., and Eldridge, Rodowsky, McAuliffe and Chasanow, JJ.

OPINIONBY: McAULIFFE

OPINION: [*478] [**1128] This child custody case requires consideration of the interaction between concepts of "best interest of the child" and "material change of circumstances," and our determination of whether the chancellor abused his [**1129] discretion by ordering a modification of an existing custody order.

   I.

   Barbara J. McCready and Timothy M. McCready were married in 1983, when they were eighteen and twenty, respectively.  A female child, Erin, was born on 26 February 1985.  They were separated ten months later.  Initially, by unwritten agreement of the parents, they continued joint legal custody, and the mother assumed primary physical custody of Erin.  The father initially had Erin with him on alternate weekends, and then every weekend, subject to adjustments made from time [***2] to time to accommodate the schedules of the parties.

   On 5 July 1988, the mother filed a complaint in the Circuit Court for Anne Arundel County, alleging that the father refused to return the child after a weekend visit, and requesting pendente lite and permanent custody. The father answered and filed a counterclaim for custody, alleging that circumstances involving the mother and a breakup with her boyfriend required him to assume temporary custody, and warranted the entry of an order granting him permanent custody.

   When the parties and their attorneys appeared in court on 15 July 1988 for a hearing to determine temporary custody, they informed Judge Eugene M. Lerner that they agreed to the entry of an order providing for joint legal and physical custody with a specific schedule for shared physical custody. The agreement, approved by Judge Lerner to be effective that day, provided generally for Erin to be with her mother during the week and with her father from Friday evening each week to Monday evening of one week and Tuesday evening the next.  The parties agreed to continue [*479] the policy of alternating custody on successive designated holidays and to confer with each[***3] other concerning a daycare provider acceptable to both.  They noted that the allocation of weekdays and weekends had been agreed upon in light of the mother's employment schedule, which required her to work weekends, and that if the mother were successful in finding weekday employment, "the parties would in good faith renegotiate this arrangement."

   Five weeks after the order confirming the agreement was entered, the mother secured weekday employment.  Over the next several months, she met with the father four times and spoke with him by telephone on two additional occasions in an effort to reach an agreement that would change the allocation of physical custody to permit Erin to be with her on some weekends. The negotiations were not successful.  On 9 December 1988, the mother filed a complaint for divorce and child custody, asking for permanent custody of Erin.  In addition to alleging the failure of the parties to agree to a modification of shared physical custody to accommodate her new work schedule, she averred that joint physical custody was causing the child to experience stress and confusion, and had not "proved to be good for Erin." She sought sole custody, with reasonable [***4]rights of visitation to be afforded the father.

   The father filed an answer and counterclaim. He admitted that joint physical custody had not proven beneficial to Erin, but stated it would be in the best interest of the child to have primary custody granted to him.

   The case was heard by Judge Robert H. Heller, Jr. for three days commencing 31 July 1989.  Judge Heller decided that the best interest of the child required a change from joint physical custody to primary physical custody by the father. He granted visitation to the mother on five weekends and three weeknights every eight weeks, and for six weekends each summer.  He continued the shared schedule of holidays.  He also ordered the parents to "consult with each other about, and participate jointly and fully in all long range decision[s] involving Erin's education, religious training, [*480] discipline, and medical care, and other matters of major significance concerning the child's life and welfare . . . ."

    The mother appealed to the Court of Special Appeals, and we granted certiorari on our own motion before consideration of the case by that court.

   [**1130] The mother presents two arguments.  First, she contends the chancellor [***5] improperly applied the "best interest of the child" standard.  Second, she argues that even if the correct standard was applied, the chancellor abused his discretion in awarding sole legal and physical custody to the father.

   II.

   As a threshold matter, we address the mother's concern that the chancellor disturbed joint legal custody. As we read the order, he did not.  In Taylor v. Taylor, 306 Md. 290, 296, 508 A.2d 964 (1986), we defined joint legal custody as follows:
 
Legal custody carries with it the right and obligation to make long range decisions involving education, religious training, discipline, medical care, and other matters of major significance concerning the child's life and welfare.
 
The chancellor tracked this language in his order and, notwithstanding earlier language in the order awarding "custody" to the father, which we believe in context referred to physical custody, and notwithstanding the absence of the label "joint legal custody," we find it clear the chancellor continued the existing joint legal custody. Neither party has voiced an objection to that status, and we turn to the questions involving physical custody.

   III. [***6]

   The mother contends the "best interest of the child" standard should not have been used when the chancellor was considering a change of custody previously ordered by the court.  In that instance, she argues, the proper standard [*481]should be whether there is evidence of a material change in circumstances affecting the welfare of the child.

   The appropriate standard for determining a contested custody case is the best interest of the child.  As we said in Taylor v. Taylor, supra, 306 Md. at 303, 508 A.2d 964:

   We emphasize that in any child custody case, the paramount concern is the best interest of the child.  As Judge Orth pointed out for the Court in Ross v. Hoffman, 280 Md. 172, 175 n. 1, 372 A.2d 582 (1977), we have variously characterized this standard as being 'of transcendent importance' and the 'sole question.' The best interest of the child is therefore not considered as one of many factors, but as the objective to which virtually all other factors speak.
 
The question of whether there has been a material change in circumstances which relates to the welfare of the child is, however, often of importance[***7] in a custody case.  The desirability of maintaining stability in the life of a child is well recognized, and a change in custody may disturb that stability.

   Stability is not, however, the sole reason for ordinarily requiring proof of a change in circumstances to justify a modification of an existing custody order. A litigious or disappointed parent must not be permitted to relitigate questions of custody endlessly upon the same facts, hoping to find a chancellor sympathetic to his or her claim.  An order determining custody must be afforded some finality, even though it may subsequently be modified when changes so warrant to protect the best interest of the child.  As we said in Hardisty v. Salerno, 255 Md. 436, 439, 258 A.2d 209 (1969), "[w]hile custody decrees are never final in Maryland, any reconsideration of a decree should emphasize changes in circumstances which have occurred subsequent to the last court hearing." n1 Even this general statement [*482] may be subject to exception in the case of prior facts existing but unknown and not reasonably discoverable at the time of the entry [**1131] of the original order, such as the fact that a parent to [***8] whom custody had been granted was, and continues to be, a sexual abuser of the child.  See Sharp, Modification of Agreement-Based Custody Decrees: Unitary or Dual Standard?, 68 Va.L.Rev. 1263, 1266-71 (1982).

n1 The salutary rule that a court does not relitigate an earlier custody order when considering a requested modification of that order does not mean that the court is precluded from considering evidence that was before the earlier court.  See Raible v. Raible, 242 Md. 586, 594-95, 219 A.2d 777 (1966) (evidence of conduct occurring before earlier order is admissible, not to show whether that order was right or wrong, "but to show some of the past history of the parties insofar as that history might aid the court in appraising their present characters and fitness as custodians").

   In the limited situation where it is clear that the party seeking modification of a custody order is offering nothing new, and is simply attempting to relitigate the earlier determination, [***9] the effort will fail on that ground alone.  In that instance, appellant would be correct in stating that the absence of a showing of a change in circumstances ordinarily is dispositive, and that the chancellor does not weigh the various factors to determine the best interest of the child.

   In the more frequent case, however, there will be some evidence of changes which have occurred since the earlier determination was made.  Deciding whether those changes are sufficient to require a change in custody necessarily requires a consideration of the best interest of the child.  Thus, the question of "changed circumstances" may infrequently be a threshold question, but is more often involved in the "best interest" determination, where the question of stability is but a factor, albeit an important factor, to be considered.

   The father suggests that in the case before us there is no necessity to show any change in circumstances because the earlier custody order merely ratified the agreement of the parties, and did not represent the considered judgment of a [*483] chancellor arrived at after a full adversary hearing.  As noted by Professor Sharp:

   A growing minority of states have attached[***10] great significance to the distinction between litigated and agreement-based custody decrees and have refused to apply the changed circumstances standard to decrees that were not the product of an adversarial hearing.
 
Sharp, supra, 68 Va.L.Rev. at 1271.

   Other courts have recognized that parental agreements concerning custody are entitled to considerable deference.
[T]he virtues of parental agreement are strong, and the law appreciates them. The parents obviously know more about the family than a judge is likely to learn in a short, formal hearing.  In a more or less amicable dissolution, the parents' natural desire to do what is best for their children gives any agreement about custody great weight as an indicator of what is in the best interest of the children.  Moreover, amicable settlement of custody arrangements is a good thing in itself, for peace between the parents must benefit the children; and a court will hesitate to tamper with what may be a fragile agreement, worked out only with difficulty.  (Citation omitted.)
 
Herron v. Herron, 74 Ill.App.3d 748, 30 Ill.Dec. 806, 808, 393 N.E.2d 1153, 1155 (1979).[***11]

   We have treated as "final," subject to modification upon a sufficient showing of change, custody orders entered by the consent and upon the agreement of the parties.  Raible v. Raible, 242 Md. 586, 594-95, 219 A.2d 777 (1966). We are not persuaded that the law of Maryland in this respect should be changed.

   In the case before us, there was sufficient evidence of change to demonstrate that the parties were not simply seeking to relitigate issues previously decided, and to support the chancellor's decision to weigh all the evidence to determine whether a change in custody was required to accommodate the best interest of the child.  Thus, the chancellor did not apply the wrong standard.

   [*484] IV.

   We turn to the final question of whether the chancellor's decision to modify physical custody should be reversed because of error.  The scope of appellate review of this question is narrow.  We will not set aside factual findings made by the chancellor unless clearly erroneous, and we will not interfere with a decision regarding custody that is founded upon sound legal principles unless there is a clear showing that the chancellor abused his discretion.  Davis v. Davis, 280 Md. 119, 124-26, 372 [**1132] A.2d 231,[***12] cert. denied, 434 U.S. 939, 98 S.Ct. 430, 54 L.Ed.2d 299 (1977).

   At the trial of this case, neither party contended that the earlier agreement concerning joint physical custody represented anything other than the exercise of their best judgment at the time concerning the best interest of Erin. Neither party suggested that the order incorporating their agreement was inappropriate at the time it was entered.  Rather, each party argued that changes occurring since the entry of the order required that a change in custody be made.  The mother testified that joint physical custody, creating as it did two separate homes for Erin, with different rules in each home and the constant shifting between homes and parents, was causing confusion and insecurity for the child, and was otherwise adversely affecting her.  The mother felt that a single home should be established with the mother, and that Erin should spend substantially less time with her father.  The father, although believing that joint custody had been in Erin's best interest for a period of time, felt he should now be given primary physical custody.

   The record contains a number of allegations[***13] lodged by each parent against the other, involving immaturity, selfishness, lack of sensitivity, and the like, which we need not detail.  Each parent had lived with a person of the opposite sex during the period of joint custody. The father's girlfriend had left, and at the time of trial the father was living alone.  The mother had initially lived with one [*485] boyfriend, but suffered a rather violent breakup with him when he learned that she was having sexual relations with someone else.  It was this episode of violence (not witnessed by the child) that caused the father to retain custody of Erin for several weeks prior to the July 1988 court hearing.  At the time of trial, the mother was living with, and was engaged to and pregnant by, another man. n2

n2 We are advised that the mother and this man have now married.

   The trial judge found the mother was less mature than the father, and was less realistic in her approach to life.  He found the father to be very sincere and very credible.  He found the mother to[***14] be somewhat selfish and narcissistic, and sometimes lacking in credibility.  He did not find either parent unfit, and he found that each parent sincerely loved the child.

   The record also supports the conclusion that the mother has become convinced that she must now create a "central nucleus family situation;" that this nuclear family should consist of her new husband, new baby, Erin, and herself; and, that in order to encourage the stability of that family, the father's contact with Erin should be reduced significantly, and he, in effect, should be reduced to the role of a visitor.  The chancellor found the mother's plans in this respect arose more from selfishness and immaturity than from a proper concern for Erin's welfare.  The chancellor obviously found, because it was admitted by the mother, that the mother made no attempt to discourage Erin from addressing the mother's fiance as "daddy." The chancellor said, concerning the mother, "I do not find you credible when you speak about not wanting to deny Mr. McCready access, or liberal access, or a great deal of access to your child."

   The chancellor concluded that under those circumstances, continued joint physical custody was not[***15] indicated, and the best interest of the child would be served by establishing the father as principal physical caretaker, but ensuring [*486] extensive continuing contact and visitation with the mother.  In so concluding, we cannot say that he abused his broad discretion.

   JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AFFIRMED, WITH COSTS. 

THE MARYLAND CLASSIFIED EMPLOYEES ASSOCIATION, INC., et al.and AMERICAN FEDERATION OF STATE, COUNTY, AND MUNICIPAL EMPLOYEES, COUNCIL 92,MARYLAND STATE EMPLOYEES UNION, et al. v. GOVERNOR WILLIAM DONALD SCHAEFER, etal. 
No. 50, September Term, 1991
 
Court of Appeals of Maryland
 
1991 Md. LEXIS 113; 30 Wage & Hour Cas. (BNA) 693

 July  17, 1991, Filed

   PRIOR HISTORY: [*1]  
 
Appeal from the Circuit Court for  Anne Arundel  County pursuant to certiorari to Court of Special Appeals; Raymond G. Thieme, Jr., Judge.

COUNSEL: ARGUED BY J. Edward Davis and Stephen B. Awalt of Towson, Maryland and William H. Engleman of Baltimore, Maryland, FOR PETITIONERS.

   ARGUED BY Judson P. Garrett, Jr., Assistant Attorney General of Baltimore, Maryland (J. Joseph Curran, Jr., Attorney General), FOR RESPONDENTS.

JUDGES: Murphy, C.J. Eldridge, Rodowsky, McAuliffe, Chasanow, Karwacki, Bell, JJ. Robert C. Murphy, Chief Judge.

OPINIONBY: MURPHY

OPINION: PER CURIAM ORDER

   For reasons to be stated in an opinion later to be filed, it is this 17th day of July, 1991

   ORDERED, by the Court of Appeals of Maryland, that the judgment of the Circuit Court for Anne Arundel County be, and it is hereby, affirmed. Costs in this Court and in the Circuit Court for Anne Arundel County to be paid by the Petitioners. Mandate to issue forthwith. 

ATLANTIC MUTUAL INSURANCE COMPANY, et al. v. Norman KENNEY,et al. 
No. 170, September Term, 1989
 
Court of Appeals of Maryland
 
323 Md. 116; 591 A.2d 507; 1991 Md. LEXIS 109

 June  27, 1991, Filed

   PRIOR HISTORY: [***1]  
 
Certiorari to Circuit Court for  Anne Arundel  County; H. Chester Goudy, Jr., Judge.

DISPOSITION: JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY REVERSED; CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO AFFIRM THE JUDGMENT OF THE DISTRICT COURT; COSTS IN THIS COURT AND IN THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY TO BE PAID BY RESPONDENTS.

CORE TERMS:  tractor trailer, proximate cause, driver, parked, parking, shopping center, truck, intersection, traffic, front, exit, contributory negligence, matter of law, police officer, foot, intervening, motor vehicle, third person, northbound, highway, obstruction, foreseeability, negligently, stopping, bus, boulevard, negligent conduct, airport, entrance, lawfully

COUNSEL: Michael C. Rosendorf and Gilbert F. Shelsby, Jr. (Montedonico & Mason, Chartered, on brief), Baltimore, for petitioner.

   Paul J. Webber (Francis B. Buckley, Rollins, Smalkin, Richards & Mackie, on brief), Baltimore, for respondent.

JUDGES: Murphy, C.J., Eldridge, * Cole, Rodowsky, McAuliffe, Chasanow and Theodore G. Bloom, Judge of the Court of Special Appeals of Maryland (Specially Assigned), JJ.

* Cole, J., now retired, participated in the hearing and conference of this case while an active member of this Court; after being recalled pursuant to the Constitution, Article IV, Section 3A, he also participated in the decision and adoption of this opinion.

OPINIONBY: McAULIFFE

OPINION: [*119] [**508] In this action the petitioners, Robert C. Hill and his insurer, Atlantic Mutual Insurance Company, sued to recover property damages resulting from a collision between Hill's vehicle and[***2] a vehicle operated by Francis Holmes.  The action is not against Holmes; it is against Norman Kenney and Roadway Express, Inc., the operator and owner respectively of a 45-foot tractor trailer that petitioners claim was negligently parked so as to significantly interfere with the ability of the driver of each vehicle to observe the approach of the other.

   The case was originally tried in the District Court of Maryland sitting in Anne Arundel County, where Judge Thomas Curley found for the petitioners and awarded judgment in the amount of $4,317.90.  Respondents perfected an appeal on the record to the Circuit Court for Anne Arundel County, which reversed the judgment of the District Court and entered a judgment for costs in favor of respondents.  [*120] We granted petitioners' petition for certiorari, and we now reverse the judgment of the circuit court and direct the reinstatement of the District Court judgment.

   On 3 October 1986, Tracey Hill operated a motor vehicle owned by his father, Robert Hill, in the Linthicum area of Anne Arundel County.  At noon on that day, he left the Westinghouse plant with a friend whom he was taking to the Baltimore-Washington International Airport. [***3] At the request of his friend, Hill stopped at a small shopping center on the way to the airport. The sole means of ingress to and [**509] egress from the shopping center consisted of two curb cuts on the east side of Route 170 (Camp Meade Road), the southernmost of which was marked for entrance into the shopping center, and the northernmost of which was marked for exit. Hill attempted to leave the shopping center by the only available exit, intending to turn left onto Route 170 and continue to the airport. As he approached the exit, Hill's vision to his left was obstructed, initially by vehicles parked in the parking lot in close proximity to Route 170, but ultimately, as he arrived at the intersection with Route 170, by a 45-foot tractor trailer parked on the east side of Route 170. The tractor trailer occupied all the space between the entrance and exit areas, an area designated as a "No Parking" zone by a posted sign.

   Route 170 at this point is one lane in each direction, and the lanes are separated by a double yellow line.  According to the police officer who investigated the accident, given the tractor trailer's parked position, an automobile northbound on Route 170 could "just [***4] about get through" between the double yellow line and the truck without going over the line.

   Hill proceeded onto Route 170 in front of the parked tractor trailer. Just as the front of his vehicle reached the center line of Route 170, his vehicle collided with the Holmes vehicle, which was proceeding north on Route 170, passing the parked tractor trailer. Both drivers testified their view was obstructed by the truck. Hill said he did not see the Holmes vehicle until "about the point of impact." Holmes did not see the Hill vehicle until "it was like right in [*121] front of me." The point of impact was at the center line of Route 170.  Damage was to the front of the Holmes vehicle and to the left front portion of the Hill vehicle.

   Norman Kenney was the driver of the tractor trailer. He routinely made deliveries to the shopping center, but ordinarily did so in a 28-foot truck that he drove into the center, and to a loading dock serving the stores.  On this occasion, however, he was driving the 45-foot tractor trailer, and the only way to maneuver a truck of that size into the shopping center was to back it in. This, Kenney said, would have been "suicide" because "you'd have cars[***5] running underneath your trailer when you're backing the thing in the driveway. You'd be surprised the people can't see a 45-foot trailer, they'll run right into you." n1 Accordingly, Kenney decided to park the tractor trailer alongside the "No Parking" sign, and to deliver a pallet of goods by hand-truck.  When asked how long it took him to deliver his cargo, Kenney said "well I had like a 140 pound skid -- I put it on my hand-truck, and hand-trucked it back in the back -- they (unclear words) and brought it back in about 15 minutes."

n1 The investigating police officer, who also had experience as a truck driver, testified that the tractor trailer could have been backed into the shopping center "with a lot of effort."

   I.

   Primary Negligence

   Logically, the first question raised by this set of facts is whether the evidence was sufficient to support the District Court's finding that Kenney was negligent in where he parked the tractor trailer. Procedurally, however, the question may not be properly before us.  Respondents[***6] did not argue the absence of primary negligence before the District Court.  Rather, they appear to have assumed primary negligence could be found, and argued recovery was barred by contributory negligence, or because any negligence on the part of Kenney was not a proximate cause of the accident.  [*122] On appeal to the circuit court, respondents argued for the first time, that the tractor trailer may not have been illegally "parked," because it was only temporarily stopped for the purpose of making a delivery, and the sign posted at that point did not prohibit "stopping" or "standing." See §§ 11-144 & 21-1003 of the Transportation Article, Maryland Code (1977, 1987 Repl.Vol.).

   Although the rules of procedure governing appeals on the record from the District Court to a circuit court are not as comprehensive as those governing appeals to the [**510] Court of Special Appeals or to this Court, we have said that the ordinary rules governing the scope of appellate review in the latter courts are generally applicable to appeals on the record in a circuit court.  Ryan v. Thurston, 276 Md. 390, 391-93, 347 A.2d 834 (1975). Maryland Rule 8-131(a), applicable[***7] to appellate procedure in the Court of Special Appeals and in this Court provides, in pertinent part, as follows:
Ordinarily, the appellate court will not decide any other issue unless it plainly appears by the record to have been raised in or decided by the trial court, but the Court may decide such an issue if necessary or desirable to guide the trial court or to avoid the expense and delay of another appeal.

   The rule "is simply enunciatory of the practice which has existed since 1825," Gordon v. State National Bank, 249 Md. 378, 383, 239 A.2d 915 (1968), and we see no reason not to apply it to appeals on the record from the District Court to a circuit court.  The rule begins with the word "ordinarily" and we have recognized that an appellate court has discretion, under some circumstances, to consider and decide questions not tried and decided in the trial court.  Crown Oil v. Glen, 320 Md. 546, 561, 578 A.2d 1184 (1990); Taub v. State, 296 Md. 439, 441-42, 463 A.2d 819 (1983). It does not appear that the circuit court did so in this case.  Rather, Judge H. Chester Goudy, Jr. assumed [***8]that "there might have been negligence," but reversed the judgment because he found as a matter of law the negligence was not a proximate cause of the accident, or because the claim was [*123] barred by contributory negligence as a matter of law. n2 We may, of course, in the exercise of our independent discretion, elect to consider the question even though the first appellate tribunal did not, Squire v. State, 280 Md. 132, 134, 368 A.2d 1019 (1977), and we shall do so in this case.

n2 The basis of the decision of the circuit court is not entirely clear.  In his comments from the bench, Judge Goudy said he was reversing the judgment because respondents' negligence was not a proximate cause of the accident.  In his subsequent written opinion and order, however, Judge Goudy grounded the reversal solely upon the existence of contributory negligence as a matter of law.

   Respondents are correct in their observation that stopping a vehicle temporarily in a designated "No Parking" zone may [***9] not be a violation of the law.  Section 21-1003(aa) of the Transportation Article provides that "[a] person may not park a vehicle at any other place where parking is prohibited by an official sign." Section 11-144 of that Article provides, however, that

   'Park' means to halt a vehicle, whether or not it is occupied, other than temporarily:

   (1) When necessary to avoid conflict with other traffic or in compliance with the directions of a police officer or a traffic control device; or

   (2) For the purpose of and while actually engaged in loading or unloading property or passengers.
 
Prohibition against temporary stopping for purposes of loading or unloading may be accomplished by the erection of signs prohibiting "stopping," or, as more commonly seen, a sign prohibiting "stopping, standing, or parking."

   Had this point been raised in the District Court, the trial judge would have had an opportunity to evaluate the evidence, and the inferences fairly deducible therefrom, to determine whether the tractor trailer operator was "actually engaged in loading or unloading property." n3 If the trial [*124] judge had found that the truck was illegally parked, that would not have ended[***10] the inquiry.  The violation of a statute may furnish evidence of negligence, Aravanis v. Eisenberg, 237 Md. 242, 259-60, 206 A.2d 148 (1965), but only where the person alleging negligence is within the class of persons sought to be protected, and the harm [**511] suffered is of the kind which the statute was intended, in general, to prevent.  Owens v. Simon, 245 Md. 404, 409, 226 A.2d 548 (1967); Slack v. Villari, 59 Md.App. 462, 471, 476 A.2d 227 (1984); Prosser & Keeton on The Law of Torts § 36, at 224-27 (5th ed. 1984).  A statute prohibiting parking within a specified distance from an intersection or crosswalk is obviously intended to protect motorists and pedestrians from risks associated with obstruction of visibility. n4 Blessing v. Welding, 226 Iowa 1178, 286 N.W. 436, 439 (1939); Todd v. New Amsterdam Cas. Co., 52 So.2d 880, 882 (La.App. 1951); Packard v. Whitten, 274 A.2d 169, 176 (Me. 1971); Meridian Hatcheries v. Troutman, 230 Miss. 493, 93 So.2d 472, 476 (1957); Cashen v. Dunkel, 98 Ohio App. 319, 129 N.E.2d 303, 305-06 (1953).[***11] A statute or ordinance prohibiting parking at a specified location may or may not have a similar objective.

n3 There was testimony that Kenney did not return to the truck until after the police officer had arrived and was interviewing the drivers. Kenney's testimony suggested that he was away from the truck for at least 15 minutes.

n4 Section 21-1003(n) of the Transportation Article, Maryland Code (1977, 1987 Repl.Vol., 1990 Cum.Supp.), prohibits the standing or parking of a vehicle within 20 feet of a crosswalk at an intersection. Under this provision, the shopping center exit onto Route 170 did not create a crosswalk on Route 170. See Harris v. Bowie, 249 Md. 465, 240 A.2d 242 (1968) and § 21-101(f) of the Transportation Article.

   Even if we assume there was no violation of the parking statute, we conclude that the evidence was sufficient to support a finding that Kenney was negligent in parking the tractor trailer. The investigating police officer described the scene.  He said[***12] the tractor trailer "covered the entire curb area from entrance to exit." He described the condition thus created as follows:

   Yes your Honor, of course at the scene I knew that Mr. Hill had pulled out taking the right of way away from the car coming northbound. However, sitting in his position [*125] and from pulling out that exit, 'cause I say the parking lot is a one way in and out, that is all that's to that shopping center right there -- just that one little front parking area.  I sat in his position where he was at and I was unable to see any of northbound 170, south of that area. Between the tractor trailer sitting in the "No Parking Zone" and the cars that are routinely parked on the parking lot, there was no view at all going in a northbound direction, south of that tractor trailer, at that point of where you come out on the roadway.
 
Section 303 of the Restatement (Second) of Torts (1965) provides:
 
An act is negligent if the actor intends it to affect, or realizes or should realize that it is likely to affect, the conduct of another, a third person, or an animal in such a manner as to create an unreasonable risk of harm to the other.
 
The trial judge [***13] here could have found that Kenney's act in parking his 45-foot tractor trailer so as to occupy the entire curb area between the entrance and exit driveways of the shopping center would substantially obstruct the view of motorists using the exit and those proceeding on Route 170, and significantly increase the risk of an accident at that point.  A motorist exiting the shopping center, and particularly one intending to turn left onto Route 170, could not possibly see traffic approaching from the south until the driver, himself, cleared the front of the truck. By that time, the entire front end of the exiting vehicle, i.e., all of the vehicle forward of the place occupied by the driver, would necessarily have entered the narrow portion of the northbound lane of Route 170 available for travel.  In the event the front end of the exiting vehicle entered that lane while another vehicle was passing the truck in a northerly direction on Route 170, a collision would be nearly inevitable.  Indeed, according to the testimony of both drivers, that is precisely what happened here.

   Parking an ordinary vehicle too close to a driveway or an intersection might not create the same risk.  An ordinary[***14] [*126] motor vehicle is less than 18 feet in length and, because of front, side, and rear windows, often provides a view of traffic beyond it.  Even if visibility is not possible through the vehicle's windows, a driver in the position of Hill might be able to see traffic behind the obstructing vehicle, and thus determine when it would be safe to exit.

   [**512] Kenney's was no ordinary motor vehicle. It was a 45-foot tractor trailer, and common experience, as well as the testimony of Hill and Holmes, tell us that neither driver could see through it or over it.  Moreover, it is clear from the testimony of the police officer that other vehicles lawfully parked on the shopping center lot prevented Hill from seeing approaching traffic by looking behind the tractor trailer, a condition that would have been apparent to Kenney when he parked his vehicle.

   The Court of Appeals of Louisiana, discussing the question of primary negligence involved in parking a Greyhound bus too close to the intersection of a highway and railroad tracks, said this:

   It was not strongly argued that the placing of the parked bus at the intersection of this main highway with the railroad tracks so as to completely obscure[***15] the adjacent tracks or trains from motor vehicle traffic could not constitute negligence which was a proximate cause of a resulting train-motor vehicle accident.

   For such conduct, foreseeably increasing the hazard to public highway traffic and avoidable by the exercise of ordinary care, could thereby create an unreasonable risk of harm to others so as to constitute negligence, or a breach of the duty owed to others.  (Footnote omitted.)
 
Bergeron v. Greyhound Corporation, 100 So.2d 923, 925 (La.App. 1958).

   Respondents cite Maggitti v. Cloverland Farms Dairy, 201 Md. 528, 95 A.2d 81 (1953), for the proposition that one cannot be guilty of negligence simply by creating an obstruction to the view of a driver by the parking of a motor [*127]vehicle. Indeed, there is language in that case which appears to support that view.
 
We think negligence could not be predicated upon lawfully parking for a necessary purpose, even though the effect is to obscure the view of other users of the highway.
 
Id. at 532, 95 A.2d 81. This language is overly broad, and was unnecessary to the holding of that case. [***16] In Maggitti, the allegation of negligence was that the defendant "double-parked" a delivery truck on Pratt Street in Baltimore.  A child attempting to cross Pratt Street was struck "by a negligently driven automobile." The case was not decided on the basis of primary negligence, but on a determination that the declaration failed to allege facts sufficient to demonstrate that the double-parking of the dairy vehicle was a proximate cause of the accident.

   Given the circumstances of the case before us, we believe the evidence was sufficient to show that the manner in which Kenney parked the tractor trailer created a foreseeable increased risk of the very type of harm which did occur, and thus the trial judge's finding of primary negligence was supported by the evidence.

   II.

   Proximate Cause

   Negligence, whether established through the application of common law principles, or by showing a violation of a relevant statute, is not actionable unless it is a proximate cause of the harm.  Cramer v. Housing Opportunities Comm'n, 304 Md. 705, 712-13, 501 A.2d 35 (1985); Liberto v. Holfeldt, 221 Md. 62, 65, 155 A.2d 698 (1959);[***17] Friedman v. Hendler Creamery Co., 158 Md. 131, 142, 148 A. 426 (1930). Negligence which constitutes a proximate cause of an injury need not necessarily be the sole cause.  Yellow Cab Co. v. Hicks, 224 Md. 563, 567, 168 A.2d 501 (1961). In order to be a proximate cause, the negligence must be 1) a cause in fact, and 2) a legally cognizable cause. [*128]Henley v. Prince George's County, 305 Md. 320, 333-34, 503 A.2d 1333 (1986); Peterson v. Underwood, 258 Md. 9, 16-17, 264 A.2d 851 (1970).

   An example of negligence that was not a cause of the subsequent accident is found in Doss v. Town of Big Stone Gap, 145 Va. 520, 134 S.E. 563 (1926). There, the plaintiff alleged the town of Big Stone Gap was negligent in maintaining its streets, thereby necessitating a detour to a roadway near an airport where the plaintiff's decedent was killed when struck by an airplane being negligently operated.  The Supreme Court of Virginia said:

   [**513] In the instant case, the proximate cause of the injury was the act of Skidmore, the aviator, and[***18] no act or omission on the part of the town of Big Stone Gap.  The death of the plaintiff's intestate was not 'the natural and probable consequence' of the alleged negligence or wrongful act of the town.  It could not have been foreseen that an injury to any one would probably have been suffered as a result of the alleged negligent acts of the town complained of.  Not merely the particular injury, but any injury.
  
Id., 134 S.E. at 565. Similarly in Clark v. Morrison, 406 Pa. 130, 177 A.2d 96 (1962), a truck parked too close to an intersection was held not to be a proximate cause of an intersection accident, where the intersection was controlled by a traffic signal and one of the operators proceeded through a red light.

   Causation in fact is apparent in the case before us.  The presence of the truck created an obstruction to the vision of both drivers, and that was clearly a cause, although perhaps not the sole cause, of the accident.  Respondents do not seriously question the existence of causation in fact.  Rather, they argue that their negligence was not a proximate cause, because the subsequent negligence of [***19] Hill was a superseding cause.  In Penn. Steel Co. v. Wilkinson, 107 Md. 574, 69 A. 412 (1908), this Court discussed the problem of intervening and superseding causes.  There, it was found that the defendant bridge-builder was guilty of [*129] negligence in allowing a rope to hang in a loop very low across a public street, and that even if the immediate cause of the plaintiff's horse being frightened was the movement of the rope by a stranger, that was but a concurring or intervening cause, and not a superseding cause which would relieve the defendant of liability.  The Court, quoting from 21 Am. & Eng. Ency. 490, said:
 
[T]he defendant is liable where the intervening causes, acts, or conditions were set in motion by his earlier negligence, or naturally induced by such wrongful act, or omission, or even it is generally held, if the intervening acts or conditions were of a nature, the happening of which was reasonably to have been anticipated, though they have been acts of plaintiff himself.
 
Id. at 581, 69 A. 412. The Court commented further that
 
the defendant is not exempt from liability when a negligence[***20] subsequent to that of the defendant is the agent by which the defendant's negligence proves injurious, if such subsequent negligence was likely, in the usual and natural order of things, to follow from the defendant's negligence.
 
Id. Similarly, in State v. Hecht Company, 165 Md. 415, 421, 169 A. 311 (1933), this Court said that a defendant guilty of primary negligence remains liable "if the intervening event is one which might, in the natural and ordinary course of things, be anticipated as not entirely improbable, and the defendant's negligence is an essential link in the chain of causation."

   The importance of foreseeability in the determination of proximate cause is reflected in § 435 of the Restatement (Second) of Torts (1965), which provides:
 
Foreseeability of Harm or Manner of Its Occurrence
 
(1) If the actor's conduct is a substantial factor in bringing about harm to another, the fact that the actor neither foresaw nor should have foreseen the extent of the harm or the manner in which it occurred does not prevent him from being liable.
 
[*130] (2) The actor's conduct may be held not to be a legal cause of harm to another where[***21] after the event and looking back from the harm to the actor's negligent conduct, it appears to the court highly extraordinary that it should have brought about the harm.

   In Lashley v. Dawson, 162 Md. 549, 160 A. 738 (1932), this Court held the evidence sufficient to support a finding that a bus driver's negligence in failing to illuminate the interior of his bus after placing it so as to constitute an obstruction of traffic at night was a proximate cause of injury to a pedestrian caused when a vehicle also being [**514] negligently operated collided with the bus and the pedestrian.  This Court said:
 
The mere fact that the original act of the appellants in obstructing the highway would not in itself have injured the appellee is not a defense to his action against them, if it appears that it was known, or should have been known, to appellants' driver that failure to warn approaching traffic of the obstruction might naturally and probably result in an accident which would or might injure others, lawfully in the use of the highway.
 
Id. at 561-62, 160 A. 738. In Bloom v. Good Humor Ice Cream Co., 179 Md. 384, 18 A.2d 592 (1941),[***22] we again recognized the importance of foreseeability in the determination of proximate cause. There, the Court held that even if the operator of the Good Humor truck was negligent in some respect by dispensing his wares from a position on a city street, the accident occurred because of "intervening, immediate causes, which he had no reason to anticipate . . . ." Id. at 389, 18 A.2d 592. Similarly, in Scott v. Watson, 278 Md. 160, 173, 359 A.2d 548 (1976), this Court, quoting from Little v. Woodall, 244 Md. 620, 626, 224 A.2d 852 (1966), said "if the situation wrongfully created by the defendant increased the risk of damage through the operation of another reasonably foreseeable force, the defendant is liable for the ensuing loss."

   In Owens v. Simon, supra, the evidence showed that Simon caused an intersection accident with Owens by failing [*131] to halt for a stop sign. A Baltimore City police officer came to the scene, and instructed Owens to move his vehicle.  The officer suffered fatal injuries when he was struck by Owens, whose vehicle may have[***23] malfunctioned due to damage suffered in the accident.  In an action filed by the officer's personal representative against Simon, this Court affirmed a grant of summary judgment in favor of the defendant, holding that the injury to the officer was not reasonably foreseeable as a result of Simon's negligence in failing to obey the stop sign.

   In the particular context of the case before us, the test formulated in State v. Hecht Company, supra, 165 Md. at 422, 169 A. 311, is appropriate:

   If the negligent acts of two or more persons, all being culpable and responsible in law for their acts, do not concur in point of time, and the negligence of one only exposes the injured person to risk of injury in case the other should also be negligent, the liability of the person first in fault will depend upon the question whether the negligent act of the other was one which a man of ordinary experience and sagacity, acquainted with all the circumstances, could reasonably anticipate or not.  If such a person could have anticipated that the intervening act of negligence might, in a natural and ordinary sequence, follow the original act of negligence, the person first[***24] in fault is not released from liability by reason of the intervening negligence of another.
 
Similarly, see § 447 of the Restatement (Second) of Torts (1965):
  
Negligence of Intervening Acts

   The fact that an intervening act of a third person is negligent in itself or is done in a negligent manner does not make it a superseding cause of harm to another which the actor's negligent conduct is a substantial factor in bringing about, if

   (a) the actor at the time of his negligent conduct should have realized that a third person might so act, or

   [*132] (b) a reasonable man knowing the situation existing when the act of the third person was done would not regard it as highly extraordinary that the third person had so acted, or

   (c) the intervening act is a normal consequence of a situation created by the actor's conduct and the manner in which it is done is not extraordinarily negligent.

   In Henley v. Prince George's County, supra, 305 Md. at 336-37, 503 A.2d 1333, we discussed the utilization of the concept of foreseeability in the separate tasks of determining the existence and scope of a tort duty, and in resolving the question of proximate[***25] cause. We pointed out that:

   [**515] Foreseeability as a factor in the determination of the existence of a duty involves a prospective consideration of the facts existing at the time of the negligent conduct. Foreseeability as an element of proximate cause permits a retrospective consideration of the total facts of the occurrence, including the criminal acts of a third person occurring after the original act of negligence of a tortfeasor.
 
Id. at 336, 503 A.2d 1333. Applying these principles, we hold that the evidence in this case was sufficient to support the trial judge's finding that the risk of the very type of harm that was suffered here was reasonably foreseeable from the negligence of Kenney in parking his tractor trailer so as to significantly obstruct the vision of drivers likely to meet at that point.  The negligence of Kenney continued through the moment of impact.  The conduct of Hill was not "highly extraordinary" -- it was predictable.  The circuit court erred in finding absence of proximate cause as a matter of law.

   III.

   Contributory Negligence

   The circuit court found that petitioners' claim was barred by contributory negligence. [***26] In so holding, the court focused on the actions of Tracey Hill, the operator of Robert [*133] Hill's vehicle.  The circuit court judge, applying the Maryland "boulevard rule," see GEICO v. Medical Services, 322 Md. 645, 653-54, 589 A.2d 464 (1991), determined that the operator of the Hill vehicle was negligent as a matter of law in failing to grant the right-of-way to Holmes, who was the favored driver lawfully operating his vehicle upon the through highway. That holding suggests an interesting question: whether the boulevard rule applies with equal force when the action is between one of the operators and a third party who was not a favored driver. The Court of Special Appeals has held that a contractor whose negligence contributed to the happening of an intersection accident should not be immunized from his liability by the application of the boulevard rule.  Dail v. Tri-City Trucking Co., 39 Md.App. 430, 435-36, 387 A.2d 293 (1978).

   And, if the boulevard rule does not have direct application, the question arises as to whether Tracey Hill was negligent as a matter of law. The fact that his view was obstructed did[***27] not excuse him; on the contrary it required increased vigilance and caution in order to measure up to the standard of reasonable care under the circumstances then prevailing.  Dunnill v. Bloomberg, 228 Md. 230, 235, 179 A.2d 371 (1961); People's Drug Stores v. Windham, 178 Md. 172, 185, 12 A.2d 532 (1940); Blinder v. Monaghan, 171 Md. 77, 83, 188 A. 31 (1936). Respondents suggest that a prudent person in Hill's position would have made a sharp right-hand turn onto Route 170, using the tractor trailer as a partial shield from northbound traffic, and then proceeded around the block or otherwise found a suitable place to reverse direction. Alternatively, respondents suggest Hill might have had his passenger alight and direct him onto Route 170.  The latter suggestion is reminiscent of the early days of railroad law, when the United States Supreme Court suggested that under some circumstances, "if a driver cannot be sure otherwise whether a train is dangerously near he must stop and get out of his vehicle . . . ." B. & O. R. R. v. Goodman, 275 U.S. 66, 70, 48 S.Ct. 24, 25, 72 L.Ed. 167 (1927).[***28] Later, classifying the [*134] earlier statement as dictum, Justice Cardozo writing for the Court rejected that notion.

   Standards of prudent conduct are declared at times by courts, but they are taken over from the facts of life.  To get out of a vehicle and reconnoitre is an uncommon precaution, as everyday experience informs us.  Besides being uncommon, it is very likely to be futile, and sometimes even dangerous.  If the driver leaves his vehicle when he nears a cut or curve, he will learn nothing by getting out about the perils that lurk beyond.  By the time he regains his seat and sets his car in motion, the hidden train may be upon him.
 
[**516] Pokora v. Wabash Ry. Co., 292 U.S. 98, 104, 54 S.Ct. 580, 582-83, 78 L.Ed. 1149 (1934).

   We do not reach the interesting question of Tracey Hill's possible contributory negligence, because, as respondents concede in their brief, Tracey's negligence, if any, cannot be imputed to his father under the circumstances of this case.

   Ordinarily, the negligence of an operator of a motor vehicle may not be imputed to the owner who is not present in the vehicle. n5 Williams v. Wheeler, 252 Md. 75, 81, 249 A.2d 104 (1967);[***29] Price v. Miller, 165 Md. 578, 582, 169 A. 800 (1934). An exception to this rule exists when the driver is acting as the agent or servant of the owner. n6 Williams v. Wheeler, supra, 252 Md. at 81, 249 A.2d 104. Accordingly, the ordinary negligence of a bailee to whom the car has been loaned for the bailee's own business does not bar recovery by the bailor against a third party whose [*135] negligence has also contributed to the injury.  Price v. Miller, supra, 165 Md. at 581-84, 169 A. 800.

n5 Under some circumstances, negligence is not imputed to the owner who is present in the vehicle.  See, e.g., Nationwide Mut. Ins. Co. v. Stroh, 314 Md. 176, 182-85, 550 A.2d 373 (1988); Smith v. Branscome, 251 Md. 582, 248 A.2d 455 (1968).

n6 Additionally, an owner may be liable for the negligence of an operator who is not acting as the owner's agent or servant if the owner has negligently entrusted the vehicle to the operator.  Morrell v. Williams, 279 Md. 497, 366 A.2d 1040 (1976); Rounds v. Phillips, 166 Md. 151, 170 A. 532 (1934).

[***30]

   The defendant has the burden of establishing contributory negligence on the part of a plaintiff.  Moodie v. Santoni, 292 Md. 582, 586, 441 A.2d 323 (1982). In the context of this case, therefore, respondents had the burden of proving not only that Tracey Hill was guilty of negligence which was a proximate cause of the accident, but also that his negligence was properly imputed to the owner of the vehicle, Robert Hill.

   In the instant case, the trial judge heard testimony that suggested that Tracey Hill was merely a bailee of his father's vehicle, using it for his own purposes in taking a friend to the airport. More important, however, the respondents did not argue below that an agency relationship existed between the owner and operator of the Hill vehicle, and have conceded here that the question of contributory negligence "seems to be inapplicable because the use plaintiff below was the owner of the vehicle and not the operator." Accordingly, we do not pass on the question of whether Tracey Hill was guilty of contributory negligence as a matter of law.

   Conclusion

   The District Court judge's finding that respondents were guilty of primary negligence[***31] which was a proximate cause of the accident was supported by the evidence.  The petitioners are not properly charged with the contributory negligence, if any, of the operator of their vehicle.  The judgment of the District Court should have been affirmed.

   JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY REVERSED; CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO AFFIRM THE JUDGMENT OF THE DISTRICT COURT; COSTS IN THIS COURT AND IN THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY TO BE PAID BY RESPONDENTS. 

SOUTH DOWN LIQUORS, INC. v. Roy D. HAYES, Jr. 
No. 153, September Term, 1989
 
Court of Appeals of Maryland
 
323 Md. 4; 590 A.2d 161; 1991 Md. LEXIS 98

 May  29, 1991, Filed

   PRIOR HISTORY: [***1]  
 
Certiorari to Court of Special Appeals; (Circuit Court for  Anne Arundel  County); H. Chester Goudy, Jr., Judge.

DISPOSITION: JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED; COSTS TO BE PAID BY PETITIONER.

CORE TERMS:  real party in interest, insurer, joinder, workers' compensation, joined, substantive law, Maryland Rule, compensation insurer, subrogation, third-party, illustration, involuntary, intervene, join, real parties, real party, substitution, prosecuted, injured employee, exclusive right, third party, case law, conventional, permissive, concurrent, ability to protect, judgment rendered, person authorized, claimed interest, reasonable time

COUNSEL: T. Michael Preston (Anderson, Coe & King, both on brief), Baltimore, for petitioner.

   H. Robert Scherr (Scherr, Cole & Murphy, all on brief), Pikesville, for respondent.

JUDGES: Murphy, C.J., and Eldridge, * Cole, Rodowsky, McAuliffe, ** Adkins and Chasanow, JJ.

* Cole, J., now retired, participated in the hearing and conference of this case while an active member of this Court; after being recalled pursuant to the Constitution, Article IV, Section 3A, he also participated in the decision and adoption of this opinion.

** Adkins, J., now retired, participated in the hearing and conference of this case while an active member of this Court but did not participate in the decision and adoption of this opinion.

 OPINIONBY: McAULIFFE

OPINION: [*5] [**161] Respondent suffered an accidental injury arising out of and in the course of his employment.  More than two months after receiving an award of compensation, and after receiving workers' compensation benefits of $37,323 from his employer's compensation insurer, respondent [***2]filed an action against petitioner in the Circuit Court for Anne Arundel County, contending that petitioner's negligence caused his injury. Petitioner, relying on the provisions of Maryland Rules 2-201 and 2-211, filed a motion asking the [*6] court to order the joinder of the workers' compensation insurer as an additional party plaintiff.  Judge H. Chester Goudy denied the motion, holding that "Maryland Rule 2-211 does not require [**162]that [the insurer] be joined as a party to this action." The Court of Special Appeals affirmed.  South Down Liquors v. Hayes, 80 Md.App. 464, 564 A.2d 119 (1989). We granted certiorari and we affirm.

   The rights of a workers' compensation insurer to bring a third-party action, and to voluntarily intervene in a third-party action brought by an injured employee are firmly established by statute, Maryland Code (1957, 1985 Repl.Vol., 1990 Cum.Supp.) Art. 101, § 58, and by case law, Collins v. United Pacific Ins. Co., 315 Md. 141, 148 n. 5, 553 A.2d 707 (1989). This case involves a different joinder question -- whether a defendant in a third-party action may require the involuntary joinder of[***3] the compensation insurer.

   Petitioner's principal argument is that Rule 2-201 requires joinder. This Rule provides:

   Every action shall be prosecuted in the name of the real party in interest, except that an executor, administrator, personal representative, guardian, bailee, trustee of an express trust, person with whom or in whose name a contract has been made by the benefit of another, receiver, trustee of a bankrupt, assignee for the benefit of creditors, or a person authorized by statute or rule may bring an action without joining the persons for whom the action is brought.  When a statute so provides, an action for the use or benefit of another shall be brought in the name of the State of Maryland.  No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for joinder or substitution of the real party in interest. The joinder or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest.
 
Rule 2-201 largely tracks FRCP 17(a), and federal precedent is therefore helpful in determining the procedural requirements[***4] of the Rule.

   [*7] Apart from stylistic changes, Maryland Rule 2-201 differs from FRCP 17(a) in two respects.  First, the Maryland Rule follows the pre-1966 style of FRCP 17(a) by placing the word "except" at the beginning of a representative list of parties who may bring actions as real parties in interest even though they are not the ultimate beneficiaries of the action.  The 1966 amendment to Rule 17(a) removed the word "except" in order to "make it clear that the specific instances enumerated are not exceptions to, but illustrations of, the rule." Notes of Advisory Committee on Rules, 1966 amendment.  This Court did not make the same style change when adopting Rule 2-201, but that fact is not substantively significant.  The non-exclusive enumeration found in Rule 2-201 is not a list of exceptions.  Rather, it provides illustrations of specific instances of real parties in interest who are permitted by substantive law to bring an action for the benefit of another, and is intended only to illustrate the application of the Rule in contexts that might otherwise cause confusion.

   The second difference between Rule 2-201 and FRCP 17(a) is the absence in the Maryland Rule of the concept[***5] of "ratification" by a real party in interest of an action brought by one not a real party in interest. This concept, which traces its origin to admiralty law, has rarely been used in the federal courts, see 3A Moore's Federal Practice § 17.15-1 at 17-184 (2d. ed. 1984), and was intentionally omitted from Rule 2-201, see Minutes of the Standing Committee on Rules, May 11 & 12, 1979, at 16.

   Both Rule 2-201 and FRCP 17(a) require that "[e]very action shall be prosecuted in the name of the real party in interest." With the exception of a few illustrations, neither rule attempts to define who is, or is not, a real party in interest in any specific context.  In a recent article, Professor June Entman suggests it is "well settled . . . that a 'real party in interest' is one who, under the substantive law, has the right to bring and control the action, and that this person is not necessarily the beneficially interested party." Entman, More Reasons for Abolishing Federal Rule of [*8] Civil Procedure 17(a): The Problem of the Proper Plaintiff and Insurance Subrogation, [**163]68 N.C.L.Rev. 893, 900 (1990), citing, inter alia, 6A C. Wright, A. Miller, & M. Kane, Federal[***6]  Practice and Procedure § 1543 at 334 (2d. ed. 1990) (the real party in interest is "the person who, according to the governing substantive law, is entitled to enforce the right"); Kennedy, Federal Rule 17(a): Will the Real Party in Interest Please Stand?, 51 Minn.L.Rev. 675, 678 (1967) ("Thus the real party is the one with legal power to control the lawsuit and may be different from the person who will ultimately be benefited if the suit is successful."); Simes, The Real Party in Interest, 10 Ky.L.J. 60, 61 (1921) ("The real party in interest is the one to whom the substantive law of the case gives the right to bring and control the action.").

   As Judge Wilner cogently pointed out for the Court of Special Appeals, the command that an action be brought by the real party in interest traces its origin to statutes and rules which were permissive in nature, authorizing plaintiffs such as assignees to bring actions at law in their own names rather than in the names of the assignors.  South Down Liquors v. Hayes, supra, 80 Md.App. at 475-78, 564 A.2d 119. See also Atkinson, The Real Party In Interest Rule:  [***7] A  Plea For Its Abolition, 32 N.Y.U.L.Rev. 926 (1957). Notwithstanding its permissive origins, Rule 2-201 does have a mandatory component.  If the party bringing an action is not the real party in interest, the action may be dismissed, provided a reasonable time is allowed after objection "for joinder or substitution of the real party in interest."

   In the context of the case before us, we must consider the proper application of Rule 2-201 in the situation where there are two real parties in interest, each of whom has the right to bring an action for the entire claim, and only one brings the action.  As the Court of Special Appeals pointed out, under the substantive law of this [*9] State, the employee (respondent) and the insurer each have the right to bring this action.

   With the gloss of case law, [Art. 101] § 58, in effect, affords an employer/insurer three "rights" to proceed against the third party, and it affords the employee two such "rights." During the first two months following passage of the award, the employer/insurer has the sole, exclusive right to sue the third party, thereafter, it has a concurrent right with the employee to bring the action; [***8] and, during that period of concurrency, it has a right under Md.Rule 2-212 (Permissive Joinder of Parties) to intervene in any action brought initially by the employee.  See Collins v. United Pacific Ins. Co., 315 Md. 141, 148 n. 5, 553 A.2d 707 (1989), and cases cited therein.  The employee has no exclusive right comparable to that of the employer/insurer. He does, however, have the concurrent right to sue after the expiration of the two-month period and, if an action is brought by the employer/insurer, he would have the right under Rule 2-212 to intervene in it.
 
South Down Liquors v. Hayes, supra, 80 Md.App. at 467-68, 564 A.2d 119. This action was brought more than two months after the compensation award was passed. Thus, each party is a real party in interest as to the entire claim.  In this instance of statutory subrogation, each party fits the illustration of Rule 2-201 of "a person authorized by statute . . . [to] bring an action without joining the persons for whom the action is brought."

   The question, then, is whether Rule 2-201 requires that all parties in interest join in bringing the action, or whether[***9] the Rule is satisfied when one party entitled to bring the action does so.  In Stark v. Gripp, 150 Md. 655, 658-59, 133 A. 338 (1926), this Court considered the effect of the workers' compensation statute, and held that joinder of the insurer was not required.  See also Baltimore Transit Co. v. State, 183 Md. 674, 678, 39 A.2d 858 (1944) ("[s]ince the [workers' compensation] statute fixes the right to reimbursement, the employer or insurer is not a necessary [*10] party to a suit by the employee").  We hold that under the circumstances of this case, n1 [**164]the bringing of the action by the employee, who is clearly a real party in interest under the law of this State, satisfies the requirement of Rule 2-201.

n1 We need not, and do not, address, except in general terms, the application of Rule 2-201 to the variety of subrogation cases that arise.  As this Court pointed out in Security Ins. Co. v. Mangan, 250 Md. 241, 245-49, 242 A.2d 482 (1968), subrogation may be legal (arising from equitable principles), conventional (arising from agreements), or statutory, and rights flowing from conventional and statutory subrogation will vary with the terms of the agreements and statutes involved.  The question in each case will involve the nature of the claim, and the legal right of the party to bring an action for that claim.

[***10]

   Our decision that Rule 2-201 does not compel joinder in this case does not complete our inquiry.  Petitioner argued below, and argues here, that Rule 2-211 requires joinder of the compensation insurer. Rule 2-211, which is derived from and which essentially tracks FRCP 19, provides in pertinent part:

   (a) Persons to be Joined. -- Except as otherwise provided by law, a person who is subject to service of process shall be joined as a party in the action if in the person's absence

   (1) complete relief cannot be accorded among those already parties, or

   (2) disposition of the action may impair or impede the person's ability to protect a claimed interest relating to the subject of the action or may leave persons already parties subject to a substantial risk of incurring multiple or inconsistent obligations by reason of the person's claimed interest.

   The court shall order that the person be made a party if not joined as required by this section.  If the person should join as a plaintiff but refuses to do so, the person shall be made either a defendant or, in a proper case, an involuntary plaintiff.

   [*11] (b) Reasons for Nonjoinder. -- A pleading asserting a claim for relief shall state[***11] the name, if known to the pleader, of a person meeting the criteria of (1) or (2) of section (a) of this Rule who is not joined and the reason the person is not joined.

   (c) Effect of Inability to Join. -- If a person meeting the criteria of (1) or (2) of section (a) of this Rule cannot be made a party, the court shall determine whether the action should proceed among the parties before it or whether the action should be dismissed.  Factors to be considered by the court include: to what extent a judgment rendered in the person's absence might be prejudicial to that person or those already parties; to what extent the prejudice can be lessened or avoided by protective provisions in the judgment or other measures; whether a judgment rendered in the person's absence will be adequate; and finally, whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder.
 
Article 101, § 58 permits an employee to bring, and prosecute to a conclusion, the entire claim the employee may have against an alleged tort-feasor, including damages that may have been paid by the compensation insurer. The statute also provides the mechanism for fully protecting the insurer's share[***12] of any recovery made by the employee.  Accordingly, the entire claim is fully litigated in an action brought by the employee, and a final judgment entered in the case will serve as a complete bar to any later claim by the insurer. Joinder is not required by Rule 2-211(a) because 1) complete relief can be accorded among those already parties, and 2) disposition of the action will not impede the insurer's ability to protect its interest or subject the alleged tort-feasor (petitioner) to the risk of multiple or inconsistent obligations by reason of the insurer's interest.

   Accordingly, we hold that a defendant in a third-party action properly brought by an injured employee may not compel the involuntary joinder of a workers' compensation insurer.

   [*12] JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED; COSTS TO BE PAID BY PETITIONER. 

STATE of Maryland, DEPARTMENT OF ECONOMIC AND COMMUNITYDEVELOPMENT v. ATTMAN/GLAZER P.B. COMPANY 
No. 130, September Term, 1990
 
Court of Appeals of Maryland
 
323 Md. 592; 594 A.2d 138; 1991 Md. LEXIS 90

 May  13, 1991, Per Curiam Order; August 26, 1991, Opinion  
 May  13, 1991, Filed

   PRIOR HISTORY: [***1]  
 
Appeal from the Circuit Court for  Anne Arundel  county pursuant to certiorari to Court of Special Appeals Lawrence H. Rushworth, Judge.

CORE TERMS:  lease, rent, lessee, basement, lessor, space, appraiser, condemnation, increased rent, conversion, appraisal, jury trial, acquisition, storage, usable, leased, tenant, storage space, office space, condemnation action, pay rent, converted, tenancy, condemnation proceeding, appropriated, converting, renewal, condemn, default, owed

COUNSEL: Evelyn O. Cannon, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Lucy Cardwell, Asst. Atty. Gen., Douglas N. Silber, Asst. Atty. Gen., on brief), Baltimore, for petitioner/cross-respondent.

   Kurt J. Fischer (Francis B. Burch, Jr., Robert J. Mathias, Thomas P. Lloyd, Piper & Marbury, on brief), Baltimore, for respondent/cross-petitioner.

JUDGES: Murphy, C.J., and Eldridge, Rodowsky, McAuliffe, Chasanow and Karwacki, JJ.

OPINIONBY: PER CURIAM; KARWACKI

OPINION: [*595] [**139] ORDER

   For reasons to be stated in an opinion later to be filed, it is this 13th day of May, 1991

   ORDERED, by the Court of Appeals of Maryland, a majority of the Court concurring, that that part of the judgment of the Circuit Court for Anne Arundel County ordering that appellee, Attman/Glazer P.B. Company, perform its agreements: (1) to admit the public necessity for and valid public purpose of the condemnation action entitled State of Maryland v. Attman/Glazer P.B. Company , Case No. 1121327, and (2) to accept the sum of seven million five hundred eighty-three thousand three hundred thirty-three[***2] dollars and thirty-three cents ($7,583,333.33) as the fair market value of the property condemned is affirmed, and it is further

   ORDERED that that part of the judgment of the Circuit Court for Anne Arundel County which directs the appellant to continue to pay rent for the property which is the subject of these proceedings until payment by the State of Maryland of the award in the condemnation action referred to above in accordance with that court's previously entered orders is affirmed, and it is further

   ORDERED that that part of the judgment of the Circuit Court for Anne Arundel County which declares that the appellant is entitled to set off against the additional rent due under the lease between the parties (resulting from the conversion of storage areas in the property to office use) the appellant's cost of making the conversion is reversed, and it is further

   [**140] ORDERED that the case shall be remanded to the Circuit Court for Anne Arundel County for further proceedings on the appellant's claim for damages occasioned by the delay [*596] caused by appellee's failure to perform its agreements relating to the condemnation action entitled State of Maryland v. Attman/Glazer P.B. Company[***3] .

   Costs to be paid, two-thirds by the appellee and one-third by the appellant.

   Mandate to issue forthwith.

   OPINION

   KARWACKI, Judge.

   On May 21, 1981, Attman/Glazer P.B. Company (AG), a limited partnership, leased an office building which it was to construct on land to be known as 45 Calvert Street in Annapolis to the State of Maryland for use of the Department of Economic and Community Development (DECD).  The lease was restated by the parties with slight modifications on February 4, 1982.  The original term of the lease was for five years, but the State was given the option to renew the lease for two additional terms of five years each.  The building was completed, and by amendment to the lease, the parties agreed that the original term of the lease would commence on October 29, 1983.

   The rent for the leased premises was based upon the building's net usable office space and net usable storage space. n1 After completion of the building, it was determined that it contained 75,000 square feet of net usable office [*597]space and 10,000 square feet of net usable storage space. The State paid rent based upon this determination from the commencement of the lease term on October 29, [***4] 1983.

n1 Paragraph 14 of the restated lease of February 4, 1982, provided in pertinent part:

   "The rent for the Premises will be based upon the following schedule showing rent per net usable square foot: 

                          Office              Storage
                           Space               Space
Initial              $ 9.50 per square   $ 3.50 per square
                           foot                 foot
First Renewal       $ 10.50 per square   $ 4.00 per square
Term                       foot                 foot
Second Renewal      $ 11.50 per square   $ 4.50 per square
Term                       foot                 foot

 
 
It is understood and agreed that the total rents and net usable square footage quoted in this Lease are approximate.  However, it is further understood and agreed that if the Premises are completed substantially in accordance with the Plans and Specifications, the Premises, upon completion, should contain (a) not fewer than 77,000 net usable square feet of office space . . . .

   Upon completion of the Premises, the lessor and Lessee shall by mutual agreement determine the exact net usable square footage of the Premises."

   Under the lease, the State, as lessee, only had the right [***5] to make improvements to the premises with the prior written consent of AG. n2 On May 2, 1985, Mr. John Juba of DECD wrote AG, requesting permission to convert a portion of the basement of the building from storage to office use.  Mr. Lowell R. Glazer, a general partner of AG, replied by letter of May 7, 1985, stating:
"Dear Mr. Juba:

   I received your request of May 2 for additional office space and conference room in the basement at 45 Calvert Street.  You have my permission to proceed.

   I must remind you that we are still in the final stages of obtaining our occupancy permit and you might experience difficulty in obtaining permits and approval from the City of Annapolis.

   [**141] You can be assured that you will have our full cooperation.

   I am forwarding a copy of this letter and your specifications to Steve Harris so that we might help you coordinate your work with the City.

   [*598] I will also have to review the area being remodeled to see what classification it is on the original basement allocation of rent. If some of the storage area is now being converted to office space, it will have to be reflected in the rent.

   If you need any additional information, please do not hesitate to contact [***6]me."
 
Over the next three years the improvements were completed at a cost to the State in excess of $165,000.  Attman/Glazer Building Co., which is owned by the general partners of AG, was the general contractor for this conversion of 8,000 square feet of storage space to office space.

 n2 Paragraph Six of the Restated Lease of February 4, 1982 provides:

   "SIX: The lessee shall not make any alterations, additions, or improvements to the Premises without the Lessor's prior written consent, and all alterations, additions or improvements made by either of the parties hereto upon the Premises shall be the property of the Lessor and shall remain upon and be surrendered with the Premises at the termination of this lease."

   The State continued to pay rent based on the original allocation of office and storage space for the next four years.  AG never made any demand for increased rent which Mr. Glazer had referred to in his letter approving the conversion of space in the basement of the building.  At trial, he explained [***7]that AG was silent on the issue of increased rent because "we had what we felt was a . . . good tenant in a building on a long-term lease."

   On March 9, 1988, the State notified AG that it was exercising its option to renew the lease for an additional five year term.  On May 2, 1988, the State sent AG a copy of the agenda item of the Board of Public Works approving that renewal. That agenda item noted that the State would continue to pay rent for 75,000 square feet of office space and 10,000 square feet of storage space.

   In its Budget Bill for fiscal year 1990, which became effective on July 1, 1989, the General Assembly appropriated funds for the State's acquisition of the building it was leasing from AG at 45 Calvert Street in Annapolis.  That acquisition had been contemplated by the State and AG since the inception of the State's tenancy. Paragraph 22 of the lease provided:

   "The Lessee has advised the Lessor that it anticipates that it may effect the condemnation of the Premises and all of the land appurtenant thereto (comprising approximately [*599] .946 acres) during the term of this Lease or any renewal term thereof.  In the event that the property is condemned by the [***8]Lessee (or any agency or instrumentality of the Lessee) during the term of this Lease or any renewal thereof, and if such Petition for Condemnation contains an offer based on the average of three appraisals obtained as specified below, net of all costs incident to the condemnation proceedings and transfer of title for the property anticipated to be condemned, the Lessor agrees, intending to be absolutely bound hereby (i) to admit the public necessity for and valid public purpose of such condemnation and (ii) to accept the sum based on the average of the three appraisals for its interest in the property.  The Lessor and the Lessee agree that the foregoing agreements of the Lessor shall be null, void and of no effect whatsoever (and shall not be admitted into evidence in any condemnation proceeding) unless the Lessee offers the sum based on the average of the three appraisals for the property in a Condemnation Petition filed during the term of this Lease or any renewal thereof."
 
It was undisputed at trial that this method of acquisition was chosen over a purchase option in the lease in part because of objections which the City of Annapolis had to the development of a building at [***9] the site of 45 Calvert Street by AG which might be offered for sale to a public agency, thereby removing that real estate from its assessable tax base.  (The building site was located in an urban renewal area over which the City of Annapolis possessed development control.) n3 It was also undisputed that the [**142] condemnation mode of acquisition by the State was preferred by the partners of AG because they would receive more beneficial federal and state income tax treatment from such an acquisition than from a sale of the property.

n3 In Attman v. Mayor, 314 Md. 675, 552 A.2d 1277 (1989), we dealt with a dispute which had arisen between AG and the City of Annapolis in relation to conditions which the City had placed upon AG's development of 45 Calvert Street. 

   [*600] AG had followed the State budget process and was aware in December of 1988 of the distinct possibility that the State would condemn its interest in the property.  On March 28, 1989, Mr. Glazer wrote to the State demanding increased[***10] rent for the 8,000 square feet of basement area in the building which had been converted from storage to office space. He proposed that the increase would be effective with the first monthly installment of rent due by the State in November of 1988 by virtue of the renewal of the lease effective on October 29, 1988.  In June, 1989, AG retained a real estate appraiser, M. Ronald Lipman, to evaluate the value of its interest in 45 Calvert Street.

   As AG expected, on July 6, 1989, the State notified AG that it was initiating steps for its possible condemnation of the property pursuant to Paragraph 22 of the Lease. n4 Also, on July 11, 1989, it replied to Mr. Glazer's letter of March 28, 1989, stating:

   "Our records indicate that the State has paid all costs connected with the conversion of storage space to other uses.  Therefore, we do not believe you have any cause to change the rent as stated in the original lease document."

n4 Paragraph 22 of the lease specified those steps:

   "The appraisers shall be selected and the value of the property determined as follows:

   (a) The Lessee shall notify the Lessor of its intent to enter condemnation proceedings.

   (b) The Lessor and the Lessee shall each select an appraiser within 30 days of the time the notice is received by the Lessor.

    (c) The two selected appraisers shall select a third appraiser within 15 days thereafter.

   (d) The appraisers shall submit their appraisals to the Department of General Services within 45 days of the time all three appraisers have been selected. Such appraisals shall not include the fit-up items for which the Lessor shall have been reimbursed under Paragraph Thirteen.

   (e) The Department of General Services shall be permitted 60 days from the receipt of all appraisals to review the appraisals and an additional 20 days to file its petition for condemnation.

   (f) The Lessee shall pay for the fee of the appraiser selected by the Lessee; the Lessor shall pay for the fee of the appraiser selected by the Lessor; and the parties shall equally share the payment of the fee of the appraiser selected by the other two appraisers."

[***11]

   [*601] Consistent with Paragraph 22 of the lease, the State and AG named experts to appraise 45 Calvert Street.  The State selected Donald Urquhart, and AG named M. Ronald Lipman.  Urquhart and Lipman jointly selected Mr. Philip Klein to serve as the third appraiser. Before any of the appraisals had been completed, an attorney representing AG wrote to the appraisers, requesting that each compute alternative valuations of the property: one based its value after deducting the leasehold interest of the State and the other disregarding the existence of the lease. Each of the appraisers complied.  The average of the three appraisals which took the State's leasehold interest into account was $7,583,333; the average appraisal value disregarding the lease was $9,550,000.

   While the appraisals were being formulated, Mr. Glazer wrote to the State on October 19, 1989, again demanding increased rent for the 8,000 square feet of basement area that had been converted from storage use to office space from October 29, 1988, until the State acquired the leased premises by condemnation. That letter concluded:
 
"Pursuant to Paragraph 27 of the Lease Agreement, this letter will constitute written[***12] notice of the default by the State.  If the State has not cured this default within 45 days, we will be forced to terminate the lease and take possession of the premises.

   If you have any questions with regard to this matter, please do not hesitate to contact me."
 
Responding on November 27, 1989, the State's representative wrote:

   "Our office has reviewed your request for additional rent monies concerning storage space that was converted to office use.  As we have previously explained, we do not feel obligated in any [**143] way to adjust the rent since all conversion was done at the State's expense.  We do not believe that we are in default of the lease agreement as you have stated in your letter.

   However, in order to fully protect our interests, if you do not rescind your demand for rent by the end of the [*602] week, the State will file a declaratory judgment action in order to ensure that our full interests under the lease are protected."
 
On December 4, 1989, the State filed a Complaint for Declaratory and Equitable Relief in the Circuit Court for Anne Arundel County (Civil Action No. 3113812). It sought a declaration that (1) AG had waived any right it may have had to declare[***13] the State in default on the lease for not paying higher rent on the space which had been converted from storage to office use; (2) if AG had not waived the right to higher rent for the converted space, the State was entitled to credit for the cost of converting the space; and (3) the State was not in default on the lease because the cost of converting the space exceeded the alleged rent due.  It also asked for an order enjoining AG from commencing any eviction proceeding to regain possession of 45 Calvert Street and for any other and further relief to which it might be entitled.  AG filed an answer to the complaint.  Neither party requested a jury trial.

   On January 19, 1990, the State filed a petition in the same court (Civil Action No. 1121327) to condemn AG's interest in 45 Calvert Street.  On February 16, 1990, the State amended that petition to offer $7,583,333 for AG's interest, net of all costs incident to the condemnation proceedings and transfer of title for the property.  In its answer to the amended petition for condemnation, AG refused to admit that the condemnation was for a valid public purpose and denied that the amount offered was proper.  Thereafter, the State amended[***14] its action for declaratory and equitable relief by adding a Count II in which it sought specific performance by AG of its obligations under Paragraph 22 of the lease. AG answered the amended complaint and demanded a trial by jury.  On the State's motion, AG's jury trial demand was stricken.

   After a bench trial, the court ordered:

   (1) that AG was compelled to admit the public necessity for and valid public purpose of the action to condemn [*603] AG's interest in 45 Calvert Street and to accept the sum of $7,583,333 for that interest;

   (2) that State should pay AG increased rent from November 1988 forward associated with the conversion of the space in the basement of the leased premise from storage to office use until the State remits payment to AG of the award in the pending condemnation action; and

   (3) State should set off against the additional rent that amount which it expended in the conversion of the basement space.
 
The court stayed further proceedings in the condemnation action pending appellate review of its judgment in the instant case.

   Both parties appealed to the Court of Special Appeals.  Thereafter, we granted both parties' petitions for a writ of certiorari prior[***15] to consideration of the case by the intermediate appellate court.

   In its appeal the State presents these questions:

   "1. Does the State's obligation to pay rent terminate after the State exercises an option to purchase through the initiation of a condemnation proceeding?

   2. May a circuit court order the State to pay rent when no funds have been appropriated for that purpose?"
AG in its cross-appeal raises these issues:

   "1. Did the circuit court err by interpreting Paragraph 22 of the Lease Agreement between the State and Attman/Glazer to require that the State's below-market leasehold interest rate be considered in determining the compensation due to Attman/Glazer upon the State's acquisition of the building?

   2. Did the circuit court err by striking Attman/Glazer's Demand for Jury Trial when Attman/Glazer's demand was made within 15 days of filing the Answer to the Amended Complaint?

   [**144] 3. Did the circuit court err by ruling that increased rent to which Attman/Glazer was entitled under Paragraph 14 of the Lease Agreement must be offset by the [*604] State's cost of making improvements when the lease expressly provided for increased rent, but did not provide for an offset?"
 
We[***16] will address the questions presented by AG in its crossappeal before turning our attention to the issues raised by the State's appeal.

   I.

   Paragraph 22 of the lease contains the agreement of the parties as to the compensation due AG in the event that the State opted to exercise its absolute right of eminent domain over AG's interest in the property during the original term of the lease or during any renewal term.  As we noted earlier, this agreement was entered deliberately because the City of Annapolis had conditioned AG's right to develop 45 Calvert Street on AG's promise that it would not sell the property to a public agency and on AG's desire to gain preferential income tax treatment for its partners on any acquisition of the property by the State. AG argues that Paragraph 22 is ambiguous as to the compensation due AG in any condemnation by the State.  It posits, therefore, that the trial court improperly excluded parol evidence as to the subjective intent of the parties when they entered the agreement.  We disagree and explain.

   We have long adhered to the law of objective interpretation of contracts. Cloverland Dairy Farms, Inc. v. Fry, 322 Md. 367, 373, 587 A.2d 527, 530 (1991); [***17] Feick v. Thrutchly, 322 Md. 111, 114, 586 A.2d 3, 4 (1991); General Motors Acceptance Corp. v. Daniels, 303 Md. 254, 261, 492 A.2d 1306, 1310 (1985); Orkin v. Jacobson, 274 Md. 124, 128, 332 A.2d 901, 903 (1975); Kasten Constr. v. Rod Enterprises, 268 Md. 318, 329, 301 A.2d 12, 18 (1973). Thus, in interpreting a contract the court must
"determine from the language of the agreement itself what a reasonable person in the position of the parties would have meant at the time it was effectuated.  In addition, when the language of the contract is plain and unambiguous there is no room for construction, and a [*605] court must presume that the parties meant what they expressed.  In these circumstances, the true test of what is meant is not what the parties to the contract intended it to mean, but what a reasonable person in the position of the parties would have thought it meant. Consequently, the clear and unambiguous language of an agreement will not give away to what the parties thought that the agreement meant or intended it to mean."
 
General Motors Acceptance Corp. v. Daniels, 303 Md. at 261, 492 A.2d at 1310. [***18]The test of ambiguity is whether, considering "the character of the contract, its purpose, and the facts and circumstances of the parties at the time of execution," Pacific Indem. Co. v. Interstate Fire & Cas. Co., 302 Md. 383, 388, 488 A.2d 486, 488 (1985), the language used in the contract, when read by a reasonably prudent person, is susceptible of more than one meaning.  Heat & Power v. Air Products, 320 Md. 584, 596, 578 A.2d 1202, 1208 (1990). Applying that test, we perceive no ambiguity in Paragraph 22 of the lease.

   At the time of execution of the lease, the parties were entering upon a landlord-tenant relationship which could extend for a 15 year period but which both were aware would probably be shorter since the State anticipated exercising its absolute right to condemn its landlord's interest in the leased premises. The sophisticated and well-represented landlord and tenant obviously wished to avoid the uncertainty, delay and expense incident to a contested condemnation proceeding and hence the raison d'etre for Paragraph 22; they agreed in advance to a method of valuating AG's interest in the premises[***19] should that interest be condemned by the State during the tenancy which was created by the lease. During that tenancy, AG's interest in the property consisted of a fee simple estate which was encumbered by the lease. That was the interest which was subject to the State's acquisition through its power of eminent domain.  See, Heritage Realty [**145] Inc. v. City of Baltimore, 252 Md. 1, 11, 248 A.2d 898, 904-05 (1969); cf. City of Baton Rouge v. Tallier, 401 So.2d 422 (La.App.1981); County of Los Angeles [*606] v. American Savings & Loan Ass'n , 26 Cal.App.3d 7, 102 Cal.Rptr. 439 (1972). In valuing that encumbered fee simple interest in a condemnation proceeding "the value of the unencumbered fee is determined and value of the leasehold deducted therefrom." 4 Nichols' The Law of Eminent Domain, § 12D.04[2] at 12D-41 (3rd ed. 1990).  Consequently, the court did not err when it considered the language of Paragraph 22 of the lease objectively and concluded that when AG agreed "to be absolutely bound . . . to accept the sum based on the average of the three appraisals for its interest in the property," [***20] that interest was a reversionary interest and not a fee simple absolute interest in 45 Calvert Street and was to be valued as such.

   II.

   AG asserts that the court erroneously struck the demand for jury trial which accompanied its answer to the amended complaint in the instant case.  Neither party had demanded a jury trial when the original complaint and answer were filed five months earlier.

   Maryland Rule 2-325 provides in pertinent part:

   "(a) Demand. -- Any party may elect a trial by jury of any issue triable of right by a jury by filing a demand therefor in writing either as a separate paper or separately titled at the conclusion of a pleading and immediately preceding any required certificate of service.

   (b) Waiver. -- The failure of a party to file the demand within 15 days after service of the last pleading filed by any party directed to the issue constitutes a waiver of trial by jury.

    . . .

   (e) Effect of Election. -- When trial by jury has been elected by any party, the action, including all claims whether asserted by way of counterclaim, cross-claim or third-party claim, as to all parties, and as to all issues triable of right by a jury, shall be designated upon[***21] the docket as a jury trial."
 
[*607] Under this rule a party is entitled to demand a jury trial on an issue triable of right by a jury where that issue is raised in an amended pleading filed after a jury trial waiver has occurred with regard to earlier pleadings in the case.  P. Neimeyer and L. Richards, Maryland Rules Commentary, (1984, 1988 Supp.) p. 160.

   Although either party in the instant case might have been entitled to a jury trial on the legal issues generated in the State's original complaint seeking a declaratory judgment and AG's answer, Md.Code (1974, 1984 Repl.Vol.) § 3-404 of the Courts and Judicial Proceedings Article; Higgins v. Barnes, 310 Md. 532, 540-552, 530 A.2d 724, 728-734 (1989); Owens-Illinois Inc. v. Lake Shore Land Co., Inc., 610 F.2d 1185, 1189 (3rd Cir.1979); 6 C. Wright & A. Miller, Federal Practice and Procedure, § 2313; F. James, Jr. and G. Hazard, Jr., Civil Procedure, § 8.10 at 383-84, both waived that right under Md. Rule 2-325(b). Thus, AG's entitlement to the jury trial it demanded depended upon whether the State's amended complaint raised an issue "triable of right by a jury." [***22]

   The sole issue raised by the State's amended complaint was whether it was entitled to specific performance of the promises which AG had made in Paragraph 22 of the lease. Patently, such an action, seeking specific performance of a contract, is one which invokes the equity jurisdiction of the court, Higgins v. Barnes, 310 Md. at 551, 530 A.2d at 733, where neither party is entitled to a trial by jury.  Attorney Grievance Commission v. Kerpelman, 288 Md. 341, 355-56, 420 A.2d 940, 947-48 (1980), cert. denied, 450 U.S. 970, 101 S.Ct. 1492, 67 L.Ed.2d 621 (1981). Consequently, the court properly ruled that AG was not entitled to a trial by jury after the State filed its amended complaint.

   III.

   In seeking a declaratory judgment as to its liability for increased rent under the lease because of its conversion [*608] of 8,000 [**146] sq. ft. of basement space from storage to office use, the State asserted alternative defenses to AG's claim for increased rent and claimed a set off against any amount which the court might determine that it owed in additional rent. The court ruled that the[***23] State owed additional rent because of the basement conversion but that any claim for increased rent prior to the renewal of the lease on October 29, 1988, had been waived by AG.  AG has not appealed that ruling on waiver.  As to the State's set off claim, the court ruled that the State was entitled to a credit against the additional rent for the money it spent in converting the basement space from storage to office use.  AG challenges that decision.

   Pursuant to paragraph six of the lease the State had the right to make improvements to the leased premises at its own expense with the consent of AG. That paragraph further provided that any such improvements would become the property of AG.  The provisions of Paragraph 14 of the lease are equally clear that the rent owed by the State at the inception of the original lease term was subject to modification depending upon the usable office and storage space within the premises at any time during the continuance of the tenancy. Notwithstanding this plain language, the court concluded that it would be unfair for AG to realize the value of these improvements as part of the condemnation award when the improvements were paid for by the State. [***24] In so concluding, the court ignored the plain language of the lease and violated well-settled contract law.

   In West v. Flanagan, 4 Md. 36 (1853), the parties entered into a lease which expressly provided that its term was from year to year.  The lessee made substantial improvements to the leased premises at his expense.  When lessor gave notice to the lessee to quit the premises at year end, lessee sued to enjoin the termination of the tenancy. Lessee argued that it would be unjust to permit the tenancy to be terminated because lessor knew that he was making improvements at considerable expense upon expectation that "he would be permitted to use them, so long as they [*609] were fit to use." We reversed the issuance of an injunction preventing termination of the lease, reasoning:

   "The defendant [lessor] on the one hand relies upon the express contract between himself and the complainant [lessee], that the latter should hold and enjoy the property as tenant from year to year, as the rule by which their respective rights, in the present transaction are to be governed; while the complainant sets up an implied agreement or license creating rights wholly [***25]inconsistent with those existing under the express contract or lease . . . .

   As a general rule implied contracts are only sustained in order to supply the place of express agreements, and we know of no case where the latter have been made to yield to the former unless by the express or implied understanding of the parties that such should be the result.  Indeed an express agreement, admitted to be, as this one is, in full force, negatives an implied, inconsistent agreement, relating to the same subject matter."
 
Id. 4 Md. at 56.
 
Since that early case, we have repeatedly held that it is improper for the court to rewrite the terms of a contract for the parties where the terms of the contract are clear and unambiguous.  e.g. Canaras v. Lift Truck Servs. Inc., 272 Md. 337, 350, 322 A.2d 866, 873 (1974); Katz v. Williams, 239 Md. 355, 361, 211 A.2d 723, 726-27 (1964).

   In concluding that the State was entitled to offset the cost of converting the basement space from the amount it owed in additional rent, the court inappropriately relied on Kimmel v. W.T. Grant Co., 233 Md. 466, 197 A.2d 122 (1964).[***26] In that case the lease gave the tenant the right to occupy only the first floor of the leased premises in return for a specified rent, but provided that, if the tenant desired to use space in the basement of the building, it could notify the landlord who was required to improve the basement area for tenant's use.  If the tenant exercised that option, the lease required that additional rent be paid.  The tenant paid for improvements to [**147] the basement and then occupied [*610] that space. We held that the tenant was entitled to set off the improvement costs from the increased rent owed because the lease expressly provided that the landlord would pay the costs of improving the basement. In the instant case, AG was not obligated under the lease to pay for the cost of converting the basement area of the premises from storage to office use.

   Although the court erred in allowing the set off in the amount of the cost of the conversion of basement space, the State may be entitled under its prayer for general relief to a set off based upon damages resulting from the delay in AG's performance of its duties under Paragraph 22 of the lease. Cf. Dewey Jordan v. Md. Nat'l Cap. P & P, 258 Md. 490, 500, 265 A.2d 892, 897 (1970);[***27] Hammaker v. Schleigh, 157 Md. 652, 668, 147 A. 790, 796 (1929). We shall remand the case for a determination of that issue.

   IV.

   The State argues that it was not liable for any further rent under the lease after it offered $7,583,333 for AG's interest in 45 Calvert Street in the amended petition for condemnation which it filed in Civil Action No. 1121327 on February 16, 1990.  It asserts that when it made this offer in compliance with Paragraph 22 of the lease that it was exercising an option to purchase granted it under that paragraph.  Consequently, it posits, AG, as lessor, was not entitled to rent after the valid exercise of an option to purchase the leased premises by the State, as lessee, citing Hanna v. Bauguess, 49 Md.App. 87, 96-97, 430 A.2d 104, 109 (1981); Young v. Cities Service, 33 Md.App. 315, 321, 364 A.2d 603, 607 (1976); United States v. Bethlehem Steel Co., 215 F.Supp. 62, 70 (D.Md. 1962) aff'd 323 F.2d 655 (4th Cir.1963); American Law of Property, § 3.84 (1952 ed.).  This argument proceeds on a faulty premise.

   We pointed out[***28] in Part I of this opinion that Paragraph 22 of the lease was purposely structured by the parties to provide that condemnation rather then purchase [*611] should be the method by which the State could acquire 45 Calvert Street during the term of its leasehold estate.  Unlike the exercise of an option to purchase by a lessee, the filing of a condemnation action by a lessee gives it no equitable title to the interest of the lessor being condemned.  Washington Suburban Sanitary Comm'r v. Nash, 284 Md. 376, 381, 396 A.2d 538, 540-41 (1979). Rather, no title passes to the condemnor until payment of the award and the costs of the proceeding by the condemnor.  Md.Code (1974, 1988 Repl.Vol.) § 12-108 of the Real Property Article.  Accordingly, the State remains liable for rent under the lease until it pays the award and costs in the pending action to condemn 45 Calvert Street.

   V.

   Finally, the State contends that the court had no power to order it to pay rent since no money had been appropriated by the General Assembly for that purpose.  We find no merit in that contention.

   Paragraph one of the lease provides:

   "Lessee covenants to pay the said specified[***29] rent at the time and in the manner above provided, which rent shall be paid out of funds appropriated therefore by the General Assembly and Federal Government.  In the event such funds are not appropriated the Lessee shall have the unrestricted right to terminate this lease upon 90 days prior written notice or upon the effective date of the termination of funds, whichever shall first occur."
 
Under that provision the State could have vacated the leased premises at any time without further liability for rent if no funds were appropriated for that purpose.  When, however, the State elected to continue to occupy the premises, it was required by the 14th Amendment to the United States Constitution and Article III, § 40 of the Maryland Constitution to pay the fair rental value of the property.  Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 434-35, 102 S.Ct. 3164, 3175-76, 73 L.Ed.2d 868, 881-82 [*612] (1982); United [**148] States v. General Motors Corp., 323 U.S. 373, 382, 65 S.Ct. 357, 361, 89 L.Ed. 311, 320-21 (1945); 2 Nichols' The Law of Eminent Domain, § 6.02 at 6-22 (3rd ed. 1990). [***30] Accordingly, the court properly declared that, if the State was to continue to occupy AG's property until its acquisition in the condemnation proceeding, it must continue to pay rent. 

Robin FORBES, as Father and Next Friend of George Forbes andConnie Forbes, Minors, v. HARLEYSVILLE MUTUAL INSURANCE COMPANY 
No. 23, September Term, 1989
 
Court of Appeals of Maryland
 
322 Md. 689; 589 A.2d 944; 1991 Md. LEXIS 92

 May  10, 1991  
 May  10, 1991, Filed

   PRIOR HISTORY: [***1]  
 
Circuit Court for  Anne Arundel  County pursuant to certiorari to Court of Special Appeals; H. Chester Goudy, Judge.

DISPOSITION: JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AFFIRMED IN PART AND REVERSED IN PART, AND CASE REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.  COSTS TO BE PAID BY HARLEYSVILLE MUTUAL INSURANCE COMPANY.

CORE TERMS:  insured, wrongful death, coverage, uninsured motorist coverage, household, named insured, spouse, insurance policy, motor vehicle, uninsured motorist, resident, uninsured motor vehicle, bodily injury, liability insurance, uninsured, insurer, tortfeasor, designated, entitled to recover, co-owner, uninsured vehicle, liability coverage, covered person, killed, bodily injuries, mandatory, uninsured motorist endorsement, uninsured motorist statute, insured vehicle, residing

COUNSEL: Gerard P. Uehlinger, Baltimore, for petitioner.

   Malik J. Tuma, David D. Patton, Baltimore, on brief, for respondent.

JUDGES: Murphy, C.J., Eldridge, Rodowsky and McAuliffe, JJ., and Harry A. Cole, * William H. Adkins and Blackwell, ** Associate Judges of the Court of Appeals (retired).  McAuliffe, J., concurs in the result only.

* Cole, J., now retired, participated in the hearing and conference of this case while an active member of this Court; after being recalled pursuant to the Constitution, Article IV, Section 3A, he also participated in the decision and adoption of this opinion.

** Adkins, J., and Blackwell, J., now retired, participated in the hearing and conference of this case while active members of this Court but did not participate in the decision and adoption of this opinion.

OPINIONBY: ELDRIDGE

OPINION: [*692] [**945] The first issue [***2] in this case is whether the statutorily mandated uninsured motorist coverage in automobile liability insurance policies includes coverage for wrongful death claims.  The second issue concerns the insured status of the deceased and the effect of that status on coverage for the wrongful death claims.

   I.

   Carol and Robin Forbes were married and had two children, George and Connie. Prior to August 4, 1984, the four resided in the home of Robin Forbes's mother in Baltimore City.  On August 4, 1984, Carol Forbes left her mother-in-law's home and, along with Delbert Dean, moved into an apartment in Easton, Maryland, under a month-to-month lease.  On or about August 27, 1984, Carol Forbes removed Connie and George from Baltimore to the Easton apartment.  Robin Forbes did not consent to the removal of the children.  In addition, the uncontradicted evidence before the trial court was that Carol Forbes at no time asked for or discussed with Robin Forbes a divorce.  Carol Forbes did not change her voter registration to Easton and did not notify the Motor Vehicle Administration of any change in her address.

   On September 22, 1984, Carol Forbes was killed in an accident while riding as a passenger[***3] in Delbert Dean's uninsured motor vehicle. Connie and George Forbes were also passengers and were injured in the accident.  The accident was caused by the negligence of Dean, the uninsured driver.

   Robin Forbes, as spouse of Carol Forbes and as next friend of George and Connie Forbes, filed an action in the Circuit Court for Anne Arundel County against his uninsured motorist carrier, Harleysville Mutual Insurance Company, [*693]and against Delbert Dean, the tortfeasor. n1 Counts one and two [**946]of the complaint, as amended, sought damages on behalf of Connie and George Forbes for the personal injuries which they had received in the accident. In counts three, four, and five, claims were made on behalf of Connie, George and Robin Forbes respectively for the wrongful death of Carol Forbes.

n1 Harleysville had issued an automobile liability policy on a 1979 Chevrolet station wagon which was titled jointly in Robin and Carol Forbes's names.  Both Robin Forbes and Carol Forbes were expressly listed on the declaration page of the policy as the operators of the vehicle.  Only Robin Forbes was designated as "named insured."

[***4]

   Dean fled the jurisdiction and has never been located.  An order of default was entered against Dean on all five counts.
 
   Harleysville filed a motion for summary judgment, and, after a hearing, the circuit court denied the motion as to counts one and two requesting damages for the personal injuries to the children.  With regard to counts three, four and five, however, summary judgment was granted in favor of Harleysville.  The circuit court held that wrongful death damages could not be recovered by Robin Forbes and the children under the uninsured motorist coverage because, at the time of the wrongful death, Carol Forbes had moved out of Robin Forbes's home and, therefore, was not an "insured" under the policy.  On June 28, 1988, the circuit court entered judgment on counts one and two against Delbert Dean and Harleysville, and on counts three, four and five solely against Dean. n2

n2 Harleysville has satisfied the judgment with respect to counts one and two of the plaintiff's complaint.  There is an indication in the record that a portion of the judgment against Dean may have been satisfied out of Dean's assets found in Maryland.  Apparently the Maryland Automobile Insurance Fund has made some payments pursuant to Maryland Code (1957, 1991 Repl.Vol.), Art. 48A, §§ 243H-243J.

[***5]

   [*694] Robin Forbes, individually and on behalf of the children and the subrogee Maryland Automobile Insurance Fund, filed a notice of appeal to the Court of Special Appeals.  While Forbes's appeal was pending in that court, the Court of Special Appeals filed its opinion in Globe American Casualty v. Chung, 76 Md.App. 524, 547 A.2d 654 (1988), vacated, 322 Md. 713, 589 A.2d 956 (1991), in which the Court of Special Appeals took the position that the statutorily required uninsured motorist coverage in automobile insurance policies does not include wrongful death claims.  In reaching this result, the Court of Special Appeals relied upon the language of the insurance policy involved in that case, and upon the language of Maryland Code (1957, 1991 Repl.Vol.), Art. 48A, § 541(c)(2), which refers to "damages which the insured is entitled to recover from the owner or operator of an uninsured vehicle because of bodily injuries sustained in an accident arising out of the ownership, maintenance, or use of such uninsured motor vehicle." (Emphasis added).  The use of the phrase "bodily injuries" without any reference [***6] to "death," and the use of the word "insured" without any reference to "the surviving next-of-kin," led the Court of Special Appeals to conclude that wrongful death claims were not encompassed by the statutorily mandated uninsured motorist coverage. Globe American Casualty v. Chung, supra, 76 Md.App. at 541, 547 A.2d at 662.

   After the Court of Special Appeals filed its opinion in the Chung case, but before the present case was briefed and argued in the Court of Special Appeals, the plaintiff-appellant Robin Forbes filed in this Court a petition for a writ of certiorari.  The petition presented the following two questions:

   1. "Does the uninsured motorist statute require coverage for wrongful death claims, contrary to the Court of Special Appeals' holding in Globe American Casualty v. Boo Hyun Chung, Pers. Rep.?"

    2. "Is an uninsured motorist insurance carrier responsible to pay a judgment in favor of minor children for the wrongful death of their mother, where the mother was [*695] married to but not living with the father at the time she was killed by the negligent uninsured driver?" n3
 
[**947] This Court granted the petition, and we shall reverse[***7] that portion of the judgment in favor of Harleysville concerning the wrongful death claims on behalf of the children.

n3 In his certiorari petition and in his brief, the plaintiff-appellant did not contest that portion of the judgment in favor of Harleysville with respect to the wrongful death claim on behalf of Robin Forbes.  That claim resulted in a judgment against Dean for only $500.00.  The portions of the judgment against Dean representing the wrongful death claims on behalf of the two children, however, were $200,000.00 and $78,000.00 respectively.

   II.

   The first issue is whether the uninsured motorist coverage required by statute extends to damages arising from a wrongful death caused by the negligence of an uninsured motorist.

   The General Assembly has enacted a comprehensive insurance scheme, with numerous mandatory coverages, for motor vehicles required to be registered in Maryland and for motor vehicle insurance policies issued in Maryland.  See Code (1977, 1987 Repl.Vol., 1990 Cum.Supp.) §§ 17-101 [***8] through 17-110 of the Transportation Article; Code (1957, 1991 Repl.Vol.), Art. 48A, §§ 234B, 240AA through 242, 243 through 243L, and 538 through 547.  See, e.g., Nationwide v. USF & G, 314 Md. 131, 133-136, 550 A.2d 69, 70-71 (1988); Lee v. Wheeler, 310 Md. 233, 528 A.2d 912 (1987); Jennings v. Government Employees Ins., 302 Md. 352, 357, 488 A.2d 166, 168-169 (1985). As part of this comprehensive scheme, Art. 48A, § 541(c), requires that "every policy of motor vehicle liability insurance issued, sold, or delivered in this State" contain uninsured motorist coverage "in at least the amounts required under Title 17 of the Transportation Article . . . ." n4

n4 The minimum amounts of coverage required by Title 17 of the Transportation Article are $20,000 for one person, and $40,000 for each occurrence.  See § 17-103(b)(1).

   [*696] In taking the position that the uninsured motorist coverage required by Art. 48A, § 541(c), [***9] does not encompass wrongful death claims, the Court of Special Appeals in Globe American Casualty Company v. Chung, supra, and Harleysville in the instant case, seized upon certain words in one sentence of § 541(c)(2), without regard to the legislative purpose reflected in § 541(c) and without regard to the other language in the section. n5 Nevertheless, in [**948] construing [*697] statutes in order to ascertain the legislature's intent, we do not read particular language in isolation or out of context.  We construe statutory language in light of the legislature's general purpose and in the context of the statute as a whole. Kaczorowski v. City of Baltimore, 309 Md. 505, 513-516, 525 A.2d 628, 632-633 (1987). See Jones v. State, 311 Md. 398, 405, 535 A.2d 471, 474-475 (1988).

n5 Art. 48A, § 541, provides in relevant part as follows:

   "(c) 'Uninsured motor vehicle' defined; uninsured motorist coverage; limit of insurer's liability.  -- (1) In this subsection 'uninsured motor vehicle' means a motor vehicle whose ownership, maintenance, or use has resulted in the bodily injury or death of an insured, and for which the sum of the limits of liability under all valid and collectible liability insurance policies, bonds, and securities applicable to the bodily injury or death is less than the amount of coverage provided to the insured under this subsection.

   "(2) In addition to any other coverage required by this subtitle, every policy of motor vehicle liability insurance issued, sold, or delivered in this State after July 1, 1975 shall contain coverage, in at least the amounts required under Title 17 of the Transportation Article, for damages which the insured is entitled to recover from the owner or operator of an uninsured motor vehicle because of bodily injuries sustained in an accident arising out of the ownership, maintenance, or use of such uninsured motor vehicle. There shall be offered in writing to the insured the opportunity to contract for higher amounts than those provided under Title 17 of the Transportation Article if these amounts do not exceed the amounts of the motor vehicle liability coverage provided by the policy.  The coverage required under this subsection (c) shall be in such form and subject to such conditions as may be approved by the Commissioner of Insurance.  Any provision in any policy of motor vehicle liability insurance issued after July 1, 1975, with respect to the coverage provided for damages sustained by the insured as a result of the operation of an uninsured motor vehicle, which commands or requires the submission of any dispute between the insured and the insurer to binding arbitration, is prohibited and shall be of no legal force or effect.  In no case shall the uninsured motorist coverage be less than the coverage afforded a qualified person under Article 48A, §§ 243H and 243-I.  However, the insurer may exclude from coverage benefits for:

   "(i) The named insured or members of his family residing in the household when occupying, or struck as a pedestrian by, an uninsured motor vehicle that is owned by the named insured or a member of his immediate family residing in his household; and

   "(ii) The named insured, members of his family residing in the household, and all other persons having other applicable automobile insurance and occupying, or struck as a pedestrian by, the insured motor vehicle operated or used by a person excluded from coverage under § 240C-1 of this article.  The coverage required under this subsection shall be primary to any right to recovery from the Maryland Automobile Insurance Fund pursuant to § 243H of this article.

   "(3) The limit of liability for an insurer providing uninsured motorist coverage under this subsection is the amount of that coverage less the sum of the limits under the liability insurance policies, bonds, and securities applicable to the bodily injury or death of the insured.

   * * *

   "(f) Uninsured motorist coverage in policies providing coverage in excess of other insurance.  -- Policies of insurance that have as their primary purpose to provide coverage in excess of other valid and collectible insurance or qualified self insurance may include uninsured motorist coverage as provided in subsection (c) of this section."

[***10]

   Our cases have emphasized that the uninsured motorist statute "embodies a public policy 'to assure financial compensation to the innocent victims of motor vehicle accidents who are unable to recover from financially irresponsible uninsured motorists.'" Lane v. Nationwide Mut. Ins. Co., 321 Md. 165, 169, 582 A.2d 501, 503 (1990), quoting Pennsylvania Nat'l. Mut. v. Gartelman, 288 Md. 151, 157, 416 A.2d 734, 737 (1980). See Lee v. Wheeler, supra, 310 Md. at 238, 528 A.2d at 915. Also, we have consistently stated that "the purpose of uninsured motorist statutes is 'that each insured under such coverage have available the full statutory minimum to exactly the same extent as would have been available had the tortfeasor complied with the minimum requirements of the financial responsibility Law.'" Nationwide Mut. Ins. Co. v. Webb, 291 Md. 721, 737, 436 A.2d 465, 474 (1981), quoting Webb v. State Farm [*698] Mutual Automobile Ins. Co., 479 S.W.2d 148, 152 (Mo.App.1972). See Hoffman v. United Services Auto. Ass'n, 309 Md. 167, 172, 522 A.2d 1320, 1322 (1987).[***11] See also Lee v. Wheeler, supra, 310 Md. at 237, 528 A.2d at 914. Moreover, we have said that "'the remedial nature' of the uninsured motorist statute 'dictates a liberal construction in order to effectuate its purpose . . . .'" Nationwide Mut. Ins. Co. v. Webb, supra, 291 Md. at 737, 436 A.2d at 475, quoting State Farm Mut. Ins. Co. v. Maryland Auto. Ins. Fund, 277 Md. 602, 605, 356 A.2d 560, 562 (1976). Finally, limitations on coverage or exclusions in insurance policies, which are inconsistent with the purpose of the uninsured motorist statutory provisions, are unenforceable.  See, e.g., Nationwide v. USF & G, supra, 314 Md. at 135, 141, 550 A.2d at 71, 74; Gable v. Colonial Ins. Co., 313 Md. 701, 703-704, 548 A.2d 135, 136 (1988); Lee v. Wheeler, supra, 310 Md. 233, 528 A.2d 912; Nationwide Mut. Ins. Co. v. Webb, supra, 291 Md. at 730, 436 A.2d at 471; Pennsylvania Nat'l. Mut. v. Gartelman, supra, 288 Md. 151, 416 A.2d 734;[***12] Reese v. State Farm Mut. Auto. Ins. Co., 285 Md. 548, 554-556, 403 A.2d 1229, 1233-1234 (1979).

   The liability coverage in standard automobile insurance policies, and the liability coverage mandated by Maryland financial responsibility law, encompass wrongful death claims.  See Daley v. United Services, 312 Md. 550, 541 A.2d 632 (1988); Code (1977, 1987 Repl.Vol., 1990 Cum.Supp.), § 17-103(b) of the Transportation Article ("The security required under this subtitle shall provide for at least: (1) The payment of claims for bodily injury or death arising from an accident . . .") (emphasis added).  As pointed out above, the purpose of the required uninsured motorist coverage is to make available the same coverage as would have been available had the tortfeasor complied with the liability insurance requirements of the financial responsibility law.  Since the liability insurance required by the financial responsibility law includes wrongful death claims, it follows that the uninsured motorist coverage also includes wrongful death claims.

   [*699] The language of the uninsured motorist statutory provision, Art. 48A, § [***13] 541(c), confirms that the General Assembly contemplated [**949]coverage for wrongful death claims.  Although the sentence in paragraph (2) of § 541(c) relied on by the Court of Special Appeals and by Harleysville refers only to "bodily injuries sustained in an accident," paragraph (1) of § 541(c), defining the term "uninsured motor vehicle," refers to "bodily injury or death of an insured." Paragraph (1) also refers to the "liability under . . . liability insurance policies . . . applicable to the bodily injury or death." In addition, paragraph (3) of § 541(c) measures the liability limit of the uninsured motorist carrier as "the amount of that [uninsured motorist] coverage less the sum of the limits under the liability insurance policies . . . applicable to the bodily injury or death of the insured." This obviously reflects the General Assembly's contemplation that uninsured motorist coverage, to the same extent as liability coverage, is "applicable to the . . . death of the insured" and, like liability coverage, embraces wrongful death claims.

   Moreover, § 541(c)(2) states that "[i]n no case shall the uninsured motorist coverage be less than the coverage afforded a qualified person under[***14] Article 48A, §§ 243H and 243-I." These sections relate to claims not covered by insurance and payable by the Maryland Automobile Insurance Fund as successor to the Unsatisfied Claim and Judgment Fund.  See Nationwide Mut. Ins. Co. v. Webb, supra, 291 Md. at 726 n. 3, 436 A.2d at 468-469 n. 3; State Farm Mut. Ins. Co. v. Maryland Auto. Ins. Fund, supra, 277 Md. at 603 n. 1, 356 A.2d at 561 n. 1. We have held that, under this provision of § 541(c)(2), uninsured motorist coverage must be as broad as the coverage under §§ 243H and 243-I; limitations on coverage which are not contemplated by §§ 243H and 243-I are not allowed under § 241(c).  State Farm v. Maryland Auto. Ins. Fund, supra, 277 Md. at 605-606, 356 A.2d at 562. See Lee v. Wheeler, supra, 310 Md. at 236-237, 528 A.2d at 914. Section 243H states that "[c]laims for the death of or personal injury to a [*700] qualified person" will be covered, and § 243-I sets the maximum amount payable for the injury or death of any one person at $20,000 (emphasis added).  This Court has taken the position[***15] that §§ 243H and 243-I encompass wrongful death claims.  Unsatisfied Claim & Judgment Fund v. Hamilton, 256 Md. 56, 259 A.2d 303 (1969). Consequently, as the uninsured motorist coverage under § 541(c) must be as broad as the coverage under §§ 243H and 243-I, and as §§ 243H and 243-I include wrongful death claims, the conclusion is inescapable that § 541(c) also includes wrongful death claims.

   In recent years this Court has dealt with the uninsured motorist coverage required by § 541(c) in a multitude of opinions.  The General Assembly has amended § 541(c) on numerous occasions.  Neither the opinions of this Court nor the actions of the General Assembly, including the underlying legislative history, have even intimated that wrongful death claims might not be embraced within § 541(c).  On the contrary, we have, although without any discussion of the issue, treated wrongful death claims as covered by § 541(c).  See Hoffman v. United Services Auto. Ass'n, supra, 309 Md. 167, 522 A.2d 1320; Yarmuth v. Gov't Employees Ins. Co., 286 Md. 256, 407 A.2d 315 (1979). Furthermore, the cases throughout[***16] the country which have considered the issue have held that wrongful death claims are within uninsured motorist coverage. See, e.g., Williams v. Williams, 23 Ariz.App. 191, 531 P.2d 924 (1975); Zeagler v. Commercial Union Ins. Co., 166 So.2d 616 (Fla.App.1964), cert. dismissed, 172 So.2d 450 (Fla.1965); Pearthree v. Hartford Acc. & Indem. Co., 373 So.2d 267, 271 (Miss.1979); Ashcraft v. Ashcraft, 689 S.W.2d 693, 695 (Mo.App.1985); Sterns v. M.F.A. Mutual Insurance Company, 401 S.W.2d 510 (Mo.App.1966); Satzinger v. Satzinger, 156 N.J.Super. 215, 383 A.2d 753 (1978); Wood v. Shepard, 38 Ohio St.3d 86, 89-90, 526 N.E.2d 1089, 1092 (1988); In re Estate of Reeck, 21 Ohio St.3d 126, 488 N.E.2d 195 (1986); Brummett v. Grange Ins. Assoc., 4 Wash.App. 979, 485 P.2d 88 (1971).

   [*701] We hold, therefore, that Art. 48A, § 541(c), encompasses wrongful death claims.

   [**950] III.

   Harleysville next argues that if wrongful death claims are covered[***17] by Art. 48A, § 541(c), there nevertheless can be no recovery in this case because of Carol Forbes's status at the time of the accident resulting in her death.  Harleysville contends that under the language of the insurance policy issued on Robin and Carol Forbes's station wagon, uninsured motorist benefits are payable only if the person sustaining bodily injury or death in an accident was an "insured" at the time of the accident.  While conceding that the two children were "insureds" within the meaning of the policy, Harleysville maintains that Carol Forbes was not an "insured" at that time.  According to the insurance company, she was not an "insured" because she was not designated as a "named insured" in the policy and did not reside in the household of the named insured. Therefore, the argument continues, the language of the insurance policy precludes the recovery of uninsured motorist benefits on behalf of the insured children. n6

n6 Even though Harleysville concedes that the minor children were "insureds" at the time of the accident, we note that the authorities support the view that in cases of minor children whose parents are divorced or separated, the children remain residents of the household of the parent listed as the named insured on the policy.  Some courts have held that the children can be residents of both parents' households for purposes of insurance.  See, e.g., Wainscott v. Ossenkop, 633 P.2d 237 (Alaska 1981); Krause v. Mutual Service Cas. Co., 399 N.W.2d 597, 601-602 (Minn.App.1987); Countryside Cas. Co. v. McCormick, 722 S.W.2d 655 (Mo.App.1987); Allstate Ins. Co. v. Luna, 36 A.D.2d 622, 623, 319 N.Y.S.2d 139, 141 (1971); Great American Ins. Co. v. Allstate Ins., 78 N.C.App. 653, 656, 338 S.E.2d 145, 147, review denied, 316 N.C. 552, 344 S.E.2d 7 (1986) ("resident" of household should be broadly construed so as to include all who, by any reasonable construction, may be included within the coverage of an insurance policy); Davis v. Maryland Cas. Co., 76 N.C.App. 102, 106, 331 S.E.2d 744, 747 (1985); Snedegar v. Midwestern Indem. Co., 44 Ohio App.3d 64, 67-69, 541 N.E.2d 90, 94-96 (1988); Hartford Casualty Ins. Co. v. Phillips, 575 S.W.2d 62 (Tex.Civ.App.1978).

[***18]

   [*702] Harleysville recognizes that if the insurance policy contains a limitation on coverage which is inconsistent with Art. 48A, § 541(c), such limitation is unenforceable.  Harleysville asserts, however, that § 541(c) does not require the payment of wrongful death benefits to the insured children if their parent, who was killed by the negligence of an uninsured motorist, was not an "insured" when the accident occurred.  It is also Harleysville's position that nothing in the statutory language requires that Carol Forbes be deemed an "insured" under the Harleysville policy.

   While not accepting Harleysville's interpretation of the insurance policy, the thrust of petitioner Robin Forbes's argument is that the statutory provisions require coverage of the claims on behalf of the children regardless of Carol Forbes's status under the language of the policy.

   We disagree with Harleysville's constructions of both the insurance policy and the statute.  In our view, under the particular circumstances of this case, Carol Forbes was an "insured" or "covered person" at the time of the accident. Alternatively, even if she were not deemed an "insured" under the policy, Art. 48A, § 541(c), as[***19] applied to the fact situation here, requires that the children's wrongful death claims be covered by the uninsured motorist provisions of the policy.

   (a)

   Preliminarily, a strong argument could be made that Carol Forbes was a "named insured" for purposes of uninsured motorist coverage regardless of the definitions in the insurance policy. Art. 48A, § 538, containing the definitions for the required motor vehicle insurance coverage subtitle of the Maryland Insurance Code, defines a "named insured" in subsection (c) as "the person denominated in the declarations in a policy of motor vehicle liability insurance." Section 538(c) does not require that the person be denominated "as a 'named insured'" or specifically designated as such.  As previously noted, both Robin and Carol Forbes were co-owners of the insured vehicle, were both designated [*703] in the policy as the two operators, and both names were listed on the declaration page of the policy.  Only Robin Forbes, however, [**951]was expressly designated as "named insured." Harleysville acknowledged in the circuit court that, in the situation where the husband and wife were co-owners and co-operators of the insured vehicle, the insurance [***20]premium would have been the same regardless of whether both spouses or one spouse was designated as "named insured." Harleysville further stated that sometimes its policies designated both spouses as named insureds and sometimes only one; the insurer indicated that there was no particular reason for the difference in designations.  Under these circumstances, it could be persuasively argued that Carol Forbes was a "named insured" under the definition in Art. 48A, § 538(c).  Nonetheless, for purposes of this case, we shall assume that Carol Forbes was not a "named insured."

   The endorsement to the Harleysville insurance policy relating to uninsured motorist coverage states:
 
"We will pay damages which a covered person is legally entitled to recover from the owner or operator of an uninsured motor vehicle because of:
 
1. Bodily injury sustained by a covered person and caused by an accident . . . ."
 
The uninsured motorist endorsement contained its own section of definitions. The definition of "covered person" was as follows:

   "'Covered person' as used in this endorsement means:

   1. You [the named insured] or any family member.

   2. Any other person occupying your covered auto. [***21]

   3. Any person for damages that person is entitled to recover because of bodily injury to which this coverage applies sustained by a person described in 1 or 2 above."
 
The term "family member," although used in several provisions set forth in the uninsured motorist endorsement, is not further defined or limited in the definition section or [*704] elsewhere in the endorsement.  The definition section at the beginning of the main policy, however, defines the term as follows:
 
"'Family member' means a person related to you by blood, marriage or adoption who is a resident of your household. This includes a ward or foster child."
 
The parties have proceeded upon the assumption that this general definition of "family member" is applicable to the uninsured motorist endorsement, and we shall do likewise.

   Therefore, the critical issue under the language of the insurance policy is whether Robin Forbes's wife, who was co-owner and co-operator of the insured vehicle, was "a resident of [Robin Forbes's] household" at the time of the accident.  Harleysville's position seems to be that whenever one spouse stops physically residing in the household where both spouses have resided, and [***22]begins physically residing at another place, that spouse is no longer "a resident" of the other spouse's household for purposes of being covered under the family car policy, regardless of how temporary the separation may be and regardless of the reason for it.

   Married couples often may experience marital difficulties which result in one of the spouses leaving the home for a period of time.  The employment situations of spouses may require them to maintain separate households in different areas for varying lengths of time.  It would be an unreasonable construction of the "household residence" language in automobile insurance policies, as well as similar language in the Maryland Insurance Code, n7 to hold that during every such period of separation, no matter how brief, the spouse who leaves the marital home automatically becomes uninsured with regard to the family car.  It would be a particularly unreasonable construction where the spouse leaving the household is co-owner and co-operator [**952] of the family [*705] car. n8 Even though her car is covered by a policy containing the mandatory insurance coverages, such spouse would not be a "covered person."

n7 See, e.g., Art. 48A, §§ 539(b)(1)(i), 539(f)(1)(iii), 539(f)(2)(iv), 541(c)(2)(i), 541(c)(2)(ii), 545(c).

[***23] 

n8 Each spouse who is co-owner of the motor vehicle has an equal right to use it.  Neale v. Wright, 322 Md. 8, 19-21, 585 A.2d 196, 201-202 (1991); Nationwide Mut. Ins. Co. v. Stroh, 314 Md. 176, 182-183, 550 A.2d 373, 375-376 (1988).

   Adoption of Harleysville's theory would result in the creation of a large class of uninsureds who obtained such status simply by leaving the residence of the named insured, even for a temporary period.  This would be inconsistent with Maryland's public policy of mandatory motor vehicle insurance coverage. See, e.g., Larimore v. American Ins. Co., 314 Md. 617, 625, 552 A.2d 889, 892 (1989) ("To uphold the . . . exclusion in motor vehicle insurance policies could result in a large class of . . . uninsured motorists"); Jennings v. Government Employees Ins., supra, 302 Md. at 360, 488 A.2d at 170.

   It is almost certain that the intent of Carol and Robin Forbes in obtaining the Harleysville policy on the family station wagon was that both of them [***24]as co-owners and co-operators would be insured with respect to their vehicle.  Acceptance of Harleysville's theory would frustrate this intent. Moreover, under Harleysville's construction of the policy, whenever a married couple in the position of Carol and Robin Forbes separated, even temporarily, one of them would have to obtain a second policy on the family car if he or she were going to be fully insured with regard to the vehicle.  It is highly unlikely that the parties intended this when contracting for the insurance policy on the station wagon.

   Many courts, including this Court, have considered whether a spouse who has left the family home is still a "resident of the same household" for purposes of motor vehicle insurance.  It is generally stated that residence under "'[a] common roof is not the controlling element.' It is rather a conclusion based on the aggregate details of the living [*706] arrangements of the parties." Davenport v. Aetna Casualty & Surety Co., 144 Ga.App. 474, 475, 241 S.E.2d 593, 594 (1978); Aetna Life & Casualty Co. v. Carrera, 577 A.2d 980, 985 (R.I.1990).

   This Court considered the issue in American Casualty Co. v. Walzl, 238 Md. 322, 208 A.2d 597 (1965).[***25] In that case the husband, Wallace Baker, had procured insurance, as the named insured, on two automobiles both of which were titled in his wife's name.  The Bakers had a stormy marriage and occasionally separated for short periods.  The separation at issue began on May 26, 1962.  On June 26, 1962, Mrs. Baker filed a complaint for a divorce a mensa et thoro, and her husband filed a cross-complaint for the same relief.  On July 2, 1962, while riding as a passenger in one of the Bakers' automobiles which was being driven by a friend's husband, Frank Walzl, Mrs. Baker was injured in an accident.  She sued Walzl and his insurer, and the insurer in turn filed a declaratory judgment action against the Bakers' liability insurer, American Casualty, claiming that American Casualty had primary coverage. American Casualty refused coverage on the ground that Mrs. Baker was not a resident of Mr. Baker's household at the time of the accident.  The trial court held that Mrs. Baker was a resident of her husband's household, and this Court affirmed, stating that
 
"temporary absences are quite frequent in a normal household due to emergencies or other reasons, and if narrow interpretations [***26] were applied, then there would be no coverage during these temporary separations . . . .  Where marital difficulties existed, it could not be assumed that the separation was irreconcilable and the difficulties existing could not be resolved . . . .  The facts presented before us show the insurer's risk was no greater under the circumstances than was originally contemplated at the time of the issuance of the policy." 238 Md. at 326, 208 A.2d at 599.
 
[*707] See Zurich Co. v. Monarch Co., 247 Md. 3, 7, 230 A.2d 330, 332-333 (1967). Cf. Peninsula Insurance Co. v. Knight, 254 Md. 461, 477-478, 255 A.2d 55, 63-64 (1969).

   [**953] Numerous other cases which have considered the issue have held that a separated spouse remains a resident of the insured spouse's household. See e.g., Mathis v. Employers' Fire Ins. Co., 399 So.2d 273 (Ala.1981) (evidence existed that wife was a resident in her estranged husband's household at the time of the accident where there had been prior separations and reconciliations between them); Lumbermens Mut. Cas. Co. v. Continental Cas. Co., 387 P.2d 104, 106-107 (Alaska 1963)[***27] (although the wife had instituted a divorce action, there was evidence that she was still a resident of her husband's household at the time of the accident); Reserve Ins. Co. v. Apps, 85 Cal.App.3d 228, 149 Cal.Rptr. 223 (1978) (wife was resident of husband's household even though parties were involved in a trial separation); Row v. United Services Auto. Ass'n, 474 So.2d 348 (Fla.App.1985); Sanders v. Wausau Underwriters Ins. Co., 392 So.2d 343, 344 (Fla.App.1981) ("The test for whether a wife is no longer a member of her husband's household is not just physical absence, but physical absence coupled with an intent not to return"); United Farm Bur. Mut. Ins. Co. v. Brantley, 176 Ind.App. 178, 375 N.E.2d 235 (1978) (coverage existed for wife even though parties were divorced when the accident occurred, where at the time the parties obtained insurance they were joint titleholders of the car, and they intended that each would be covered while operating the vehicle); Bearden v. Rucker, 437 So.2d 1116, 1121-1122 (La.1983) (while the husband had obtained a legal separation[***28] and the parties had been living apart for nine months prior to the accident, under the facts of the case the wife was still a resident of her husband's household); Miroff v. State Farm Fire and Cas. Co., 122 Misc.2d 811, 471 N.Y.S.2d 807 (1984); Southern Farm Bur. Cas. Ins. Co. v. Kimball, 552 S.W.2d 207 (Tex.Civ.App.1977); Hawaiian Ins. & G. Co., Ltd. v. Federated Amer. Ins. Co., 13 Wash. App. 7, 534 P.2d 48 (1975).

   [*708] We do not have before us a case where it is clear that the separation between the spouses was permanent, and thus we need not decide what would be the result in such a situation under language like that in the Harleysville policy.  In the case before us, it cannot be concluded that the separation between Robin and Carol Forbes was permanent.  As previously mentioned, the uncontradicted evidence before the circuit court was that at no time prior to her death had Carol Forbes ever requested a divorce or even discussed a divorce with Robin Forbes.  The parties had only been separated for approximately 1 1/2 months before Mrs. Forbes's death.  When she left the residence in Baltimore, [***29] Mrs. Forbes did not have the address of her driver's license changed or her voter registration changed to reflect the Easton address.  Furthermore, the lease Mrs. Forbes entered into in Easton was only on a month-to-month basis, rather than one for a longer term.  Carol Forbes remained as a co-owner of the insured vehicle, and she remained listed on the declaration page of the insurance policy. Harleysville acknowledged that if Carol Forbes had been specifically designated as a "named insured" along with Robin Forbes, the premium would have been the same and Carol would have remained covered when she moved to Easton.

   Under the circumstances, we hold that Carol Forbes was an "insured" and a "covered person" at the time of the accident.

   (b)

   As an alternate holding, we agree with the petitioner's argument that the minor children's wrongful death claims were within the mandatory uninsured motorist coverage of Art. 48A, § 541(c), regardless of Carol Forbes's status under the language of the policy.

   It is true that certain language in Art. 48A, § 541(c)(1) and (3), refers to "death of the insured." As discussed in Part II of this opinion, however, this language merely reflects the General[***30] Assembly's contemplation that wrongful death claims are covered by the uninsured motorist [*709] provisions and that, when an insured is killed in a motor vehicle accident with an uninsured tortfeasor, the statutory beneficiaries are entitled to wrongful death benefits under the mandatory uninsured motorist coverage. See, e.g., Williams v. [**954] Williams, supra, 23 Ariz.App. at 193-194, 531 P.2d at 926-927; Zeagler v. Commercial Union Ins. Co., supra, 166 So.2d at 617-618; Sterns v. M.F.A. Mutual Insurance Company, supra, 401 S.W.2d at 517-520; Satzinger v. Satzinger, supra, 156 N.J.Super. at 222-223, 383 A.2d at 756-757; In re Estate of Reeck, supra, 21 Ohio St.3d at 128-129, 488 N.E.2d at 197-198. We do not believe, however, that the language of § 541(c)(1) and (3) means that the deceased must always be an "insured" under the particular language of the insurance policy.

   The basic coverage language of § 541(c) is set forth in paragraph (2) and requires coverage "for damages which the insured is entitled to recover from the owner or operator of an [***31] uninsured motor vehicle because of bodily injuries [including death] sustained in an accident arising out of the ownership, maintenance, or use of such uninsured motor vehicle." The Forbes children's wrongful death claims squarely fall within this statutory language even if their mother at the time of the accident was not an "insured" under the language of Harleysville's policy.  The children are "insureds" under the Harleysville policy.  Under Maryland's wrongful death statute, the children are legally entitled to damages from the owner or operator of an uninsured motor vehicle because of the death of their mother sustained in an accident arising out of the operation of the uninsured vehicle. In fact, a judgment against the owner and operator of the uninsured vehicle has been recovered on their behalf. The claims of the insured children clearly are embraced by the critical coverage language of § 541(c)(2).

   Moreover, the purpose of the uninsured motorist statute supports coverage of the children's wrongful death claims without regard to Carol Forbes's status under the language of the insurance policy. As discussed earlier, the purpose of the statutorily mandated uninsured motorist[***32] coverage is [*710] to put the insured (including the insured children) in the same position as they would have been if the tortfeasor had maintained liability insurance. See Lee v. Wheeler, supra, 310 Md. at 237, 528 A.2d at 914; Hoffman v. United Services Auto. Ass'n, supra, 309 Md. at 171-172, 522 A.2d at 1322; Nationwide Mut. Ins. Co. v. Webb, supra, 291 Md. at 737, 436 A.2d at 474. If the tortfeasor in this case had maintained liability insurance, the children's wrongful death claims would have been paid up to the limits of that liability coverage. Since the tortfeasor failed to have liability insurance, and since the children did have uninsured motorist coverage, their claims should similarly be covered up to the limits of the uninsured motorist insurance.

   Furthermore, it is clear that the children's wrongful death claims are payable, up to certain statutory limits, by the Maryland Automobile Insurance Fund as successor to the Unsatisfied Claim and Judgment Fund under Art. 48A, §§ 243H-243L, if those claims are not covered by Harleysville.  Nevertheless, the purpose of these [***33] sections is to cover claims against uninsured tortfeasors where the claimant has no uninsured motorist insurance.  See §§ 243H (heading of section), 243H(a)(3)(v), 541(c)(2), 541(c)(3).  It was not the purpose of §§ 243H-243L to cover claims where the claimant has uninsured motorist coverage but the insurer has placed an exclusion or limitation on coverage in the policy.  Instead, the statutory scheme indicates that the uninsured motorist carrier should pay such claims.  See Lee v. Wheeler, supra, 310 Md. at 238-243, 528 A.2d at 915-917.

   Under circumstances like those presented here, numerous cases have held that uninsured motorist claims by insureds are covered by language similar to that in § 541(c) even though the victim of the accident may not have been an "insured" under the language of the policy.  For example, in Auto Club Ins. Ass'n v. DeLaGarza, 433 Mich. 208, 444 N.W.2d 803 (1989), a wife and husband had lived apart for many years.  The wife maintained a motor vehicle insurance policy on her automobile, but the husband was not an [*711] insured under the policy because he did not reside in the wife's household[***34] and was not using the insured vehicle. The husband, while changing a tire on an uninsured vehicle on a highway shoulder, was struck and killed by another uninsured vehicle. In holding [**955] that the wife could recover wrongful death benefits under her uninsured motorist endorsement, despite the fact that the husband was not an insured under the policy, the Supreme Court of Michigan relied on policy language virtually identical to the language in Art. 48A, § 541(c)(2).  The court pointed out that "Mary DeLaGarza is an 'insured person' under the terms of the policy" and that "the policy does not explicitly limit recovery for bodily injury [including death] to those injuries sustained by insured persons." Auto Club Ass'n v. DeLaGarza, supra, 433 Mich. at 213, 444 N.W.2d at 805.

   In Sexton v. State Farm Mut. Auto. Ins. Co., 69 Ohio St.2d 431, 433 N.E.2d 555 (1982), the plaintiff and his wife were divorced and lived apart; the plaintiff's minor daughter lived with his wife who had custody of her.  The plaintiff maintained an automobile insured by State Farm, with the statutorily required uninsured motorist coverage. The daughter[***35] was a passenger in an uninsured motor vehicle and was killed in an accident due to the fault of the driver of the uninsured vehicle. It was clear from the language of the plaintiff's insurance policy with State Farm that the daughter was not an insured under the policy and that the plaintiff was not entitled to recover his wrongful death claim under the wording of the policy's uninsured motorist endorsement. Nevertheless, relying on statutory language essentially the same as Maryland's § 541(c)(2), the Supreme Court of Ohio held that the policy exclusion was void and that the uninsured motorist statute required coverage of the plaintiff's wrongful death claim.  The court observed that, "[a]lthough the statute does not indicate who must have sustained the bodily injury, it does not specify that it be the insured." Sexton v. State Farm Mut. Auto. Ins. Co., supra , 69 Ohio St.2d at 434, 433 N.E.2d at 558-559. The court went on to state that "[t]he pertinent [*712] language of the [uninsured motorist] statute requires that the insured be legally entitled to recover damages because of bodily injury." 69 Ohio St.2d at 434-435, 433 N.E.2d at 559.[***36] As the plaintiff was entitled to recover damages because of the wrongful death of his daughter under the Ohio wrongful death statutory provisions, the court "conclude[d] that Sexton is entitled to recover damages under his uninsured motorist coverage." 69 Ohio St.2d at 435, 433 N.E.2d at 559.

   To the same effect are several other cases.  See, e.g., Hinners v. Pekin Insurance Company, 431 N.W.2d 345 (Iowa 1988); State Farm Mutual Automobile Ins. Co. v. Selders, 187 Neb. 342, 346-348, 190 N.W.2d 789, 792 (1971); Motorists Mut. Ins. Co. v. Speck, 59 Ohio App.2d 224, 393 N.E.2d 500 (1977); Grange Ins. Ass'n v. Hubbard, 35 Wash.App. 407, 410, 413, 667 P.2d 121, 123, 125, review denied, 100 Wash.2d 1023 (1983) ("The statute does not contemplate a piecemeal whittling away of liability for injuries caused by uninsured motorists.  * * * Any provisions in the policy must yield to the public law.  Since she [the insured plaintiff] has the right of action against someone whose negligence caused the death of her son, it makes no difference[***37] whether her son is insured under that policy or not"); but cf. Gaddis v. Safeco Ins. Co. of America, 58 Wash.App. 537, 794 P.2d 533, review denied, Estate of Bowers, 115 Wash.2d 1029, 803 P.2d 324 (1990). Some decisions have taken a position contrary to the above-cited cases.  See Valiant Ins. Co. v. Webster, 567 So.2d 408 (Fla.1990).

   In the present case we hold that the minor children's wrongful death claims were covered under Art. 48A, § 541(c), regardless of the language in Harleysville's policy.

   JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AFFIRMED IN PART AND REVERSED IN PART, AND CASE REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS NOT INCONSISTENT [*713] WITH THIS OPINION.  COSTS TO BE PAID BY HARLEYSVILLE MUTUAL INSURANCE COMPANY. 

Walter Pyle HAMMOND v. STATE of Maryland 
No. 107, September Term, 1990
 
Court of Appeals of Maryland
 
322 Md. 451; 588 A.2d 345; 1991 Md. LEXIS 72

 April  9, 1991  
 April  9, 1991, Filed

   PRIOR HISTORY: [***1]  
 
Appeal from the Circuit Court for  Anne Arundel  County pursuant to certiorari to Court of Special Appeals; Raymond G. Thieme, Jr. Judge.

DISPOSITION: JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY REVERSED; CASE REMANDED FOR A NEW TRIAL; COSTS TO BE PAID BY ANNE ARUNDEL COUNTY.

CORE TERMS:  disable, maim, disfigure, mayhem, disablement, assault, temporary, permanent, maiming, permanently, arm, common law, disfigurement, finger, bedroom, shovel, disabling, cutting, bed, hit, stairs, blade, blood, nose, hurt, disability, Criminal Law, permanent injury, front door, temporarily

COUNSEL: Susan McMillan Davis (Russell J. White, White & Karceski, all on brief), Towson, for appellant.

   Mary Ellen Barbera, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., and Richard B. Rosenblatt, Asst. Atty. Gen., all on brief), Baltimore, for appellee. 

JUDGES: Murphy, C.J., Eldridge, Rodowsky, McAuliffe, Chasanow and Karwacki, JJ., and Charles E. Orth, Jr., Judge (retired), Specially Assigned.

OPINIONBY: ORTH

OPINION: [*453] [**345] I

   One hundred and thirty-eight years ago the Maryland Legislature declared that it was a crime
 
[i]f any person . . . shall assault and beat any person, with intent to maim, disfigure or disable such person . . . .
 
Acts 1853, ch. 99, § 1, now codified as § 386, Article 27 of the Maryland Code (1957, 1987 Repl.Vol.).  During all those years, the Legislature has never explicitly stated whether the specific intents required n1 must be to maim, disfigure, or disable permanently.  In fact, the Legislature has[***2] addressed the statute only once during that period.  As reenacted by Acts 1966, ch. 628, the Legislature did no more than increase the minimum sentence authorized from six months to eighteen months.  The substance of the statute remains today as it was when the statute was first enacted.

n1 For a discussion of specific intent, see Shell v. State, 307 Md. 46, 62-63, 512 A.2d 358 (1986), and McBurney v. State, 280 Md. 21, 28-29, 371 A.2d 129 (1977).

   II

   Until today, this Court has never been called upon to decide if the maiming, disfigurement, or disablement intended by the assailant must be permanent or whether the intent could be to maim, disfigure, or disable temporarily. The question is [**346] squarely before us now because the jury, during its deliberations at the trial of Walter Pyle Hammond in the Circuit Court for Anne Arundel County, asked the question of the presiding judge, and defense counsel objected to his answer.

   Hammond was charged by a criminal [***3] information with the commission of seven crimes.  The charges stemmed from the reaction of Hammond when he entered the home of his girl friend, Peggy McElroy, and found her in bed with David Schoene.  Hammond got a shovel and smote Schoene repeatedly with it, leaving Schoene bloodied and bowed.  [*454] The jury convicted Hammond of assault with intent to maim, disfigure and disable. Sentence was imposed. Hammond appealed from the judgment.  We ordered the issuance of a writ of certiorari on our own motion before decision by the Court of Special Appeals.

   The trial judge instructed the jury regarding the crimes it was to consider. One of them was assault with intent to murder.  He explained that offense and then said:

   The next offense [(charged in count 2)] is called assault with intent to maim. Now again, that label is a little misleading, because we're not talking about maiming in the sense that you understand it to be.  To convict the Defendant of this charge, which is captioned assault with intent to maim, the State has to prove first that the Defendant struck at the victim, same as assault with intent to murder; that the Defendant intended to disfigure or disable the victim. [***4] So, it's not with the intent to kill but there must be the specific intent to either disfigure or disable. And like assault with intent to murder it has to be committed without justification or mitigation.  So, disfigure has its common, ordinary meaning.  And disable means simply to incapacitate or physically impair the victim.  Make your determination. n[2]
 
After the jury had deliberated for a time, it sent a note to the judge, asking for "clarification" with respect to two of the charges.  The first question, which is the one pertinent to this appeal, n3 was headed, "INTENT TO MAIM." It read: "-- DISABLEMENT -- MUST IT BE PERMANENT OR CAN IT BE TEMPORARY." The judge replied in writing over defense counsel's objection:

   Whether any disablement is permanent or temporary is immaterial as long as there is a disablement.
 
[*455] Hammond carries the challenge to the judge's response to us.  He claims that assault with intent to maim, disfigure, or disable requires an intent to permanently maim, disfigure, or disable. Therefore, he urges, the judge's supplemental instruction, whether a disablement is permanent or temporary is immaterial, constituted prejudicial error. [***5] 

n2 The instruction given was in general accord with the instruction entitled "Maiming -- Assault with intent to maim, disfigure or disable" suggested by the Maryland State Bar Association, Inc., Maryland Pattern Jury Instructions -- Criminal § 4:21.1 (1987).

n3 The second question concerned the charge of breaking and entering.

   III

   A

   Section 386 is one of a package of three statutes grouped under the subtitle "Maiming" in Article 27.  The other two are now codified as §§ 384 and 385.  The statutes stem from the early English common law offense of mayhem. n4 What are now §§ 384 and 385 were enacted by Acts 1809, ch. 138, § 4.  (See Kilty, Laws of Maryland Compiled, Vol. 4, 1807-1812).  Paragraph 4 of § 4, now § 384 of the Code, did no more than give legislative recognition to the common law crime of mayhem and authorize punishment for its violation.  The statute has appeared in every code since its enactment and has not been touched by the General Assembly since 1809.  It simply prescribed:

   [**347] Every person, his[***6] aiders and abettors, who shall be convicted of the crime of mayhem or of tarring and feathering, shall be sentenced to the penitentiary for not more than ten years nor less than eighteen months.
 
Paragraph 5 of § 4, now § 385 of the Code, provided:

   Every person, his or her aiders, abettors and counsellors, who shall be duly convicted of the crime of cutting out or disabling the tongue, putting out an eye, slitting the nose, cutting or biting off the nose, ear or lip, or cutting or biting off or disabling any limb or member of [*456] any person, of malice aforethought, with the intention in so doing to maim or disfigure such person shall be sentenced to undergo a confinement in the said penitentiary for a period of not less than two nor more than ten years . . . .
 
Acts 1966, ch. 628 looked at § 385.  It did no more, however, than declare the crime to be a felony, make some housekeeping changes, set the sentence upon conviction at "not less than two nor more than ten years," and change the intent in committing the proscribed acts from "maim or disfigure" to "mark or disfigure."

n4 "'Maim' is the modern equivalent of the old word 'mayhem,' and some have long been inclined to abandon the earlier word entirely." Perkins & Boyce, Criminal Law (3rd ed., 1982) at 238.  See LaFave & Scott, Criminal Law (2d ed., 1986) § 7.17 n. 5 at 697.

   Reference to "maim" or "maiming" herein encompasses "mayhem" and vice versa.

[***7]

   B

   Section 384 designated the crime of mayhem but did not define it.  It was stated in Hochheimer, The Law of Crimes and Criminal Procedure (2d ed., 1904) (Hochheimer), § 386 at 423:

   Mayhem, or maim, is bodily hurt, or the infliction thereof, whereby a man is deprived of the use of any member of his body or any sense which he can use in fighting, or by the loss of which he is generally and permanently disabled.
 
Hochheimer observed that
 
[m]ayhem is to be distinguished from bodily hurt involving mere disfigurement. Cutting off, disabling or weakening a hand or finger, striking out an eye or a front tooth and castration are maims; but cutting off an ear or the nose is not maim.
 
Id.  See 4 W. Blackstone, Commentaries (Blackstone) <*>205-206 (1769); LaFave & Scott, Criminal Law (2d ed. 1986) (LaFave) § 7.17(a) at 696; Perkins and Boyce, Criminal Law (3rd ed. 1982) (Perkins) ch. 2, § 8 at 239; C. Torcia, 2 Wharton's Criminal Law (14th ed. 1979) (Wharton) § 204 at 336.  At English common law, Blackstone said at <*>205-206, mayhem was "the violently depriving another of the use of such of his members as may render him the less able in fighting, either to [***8] defend himself, or to annoy his adversary." "[T]he rationale," observed LaFave, § 7.17(a) at [*457] 696, "being to preserve the King's right to the military services of his subjects."

   "By a series of early English statutes (in 1403, 1545, 1670), n[5] mayhem was broadened to include cutting out or disabling the tongue, severing the ear, and slitting the nose or lip." LaFave § 7.17 at 696-697.  See Hochheimer, § 386 at 423; Wharton, § 206 at 337; Perkins, § 8, ch. 2 at 239-240.

 n5 "The last of these statutes is 'called the Coventry Act, being occasioned by an assault on Sir John Coventry in the street, and slitting his nose, in revenge (as was supposed) for some obnoxious words uttered by him in parliament.'" LaFave § 7.17(b) n. 4 at 697, quoting 4 W. Blackstone, Commentaries <*>207 (1769).

   It is apparent on the face of § 385 that it contemplates the old crime of mayhem as broadened by the early English statutes.  Section 385 and the English common law after Sir John Coventry's unpleasant experience speak in terms of the same types of injuries.  Thus, the Legislature has covered the[***9] field of mayhem. Section 384 encompasses the old common law crime; § 385 proscribes conduct in terms of the common law offense as broadened; § 386 creates a new offense of assault with intent to maim, disfigure, or disable.

   IV

   A

   As we have seen supra, Hochheimer spoke of mayhem in terms of "permanently disabled." § 386 at 423.  He does not stand alone in this view.  According to [**348]Blackstone, common law mayhem covered permanent disablement of an appropriate bodily member as well as its dismemberment.  <*>205-206.  LaFave declared:

   Mayhem at common law required a type of injury which permanently rendered the victim less able to fight offensively or defensively; it might be accomplished either by the removal of (dismemberment), or by the disablement of, some bodily member useful in fighting.
 
[*458] § 7.17 at 696 (emphasis in original).  LaFave stated, "Today, by statute, permanent disfigurement has been added . . . ." Id. LaFave made clear:
 
It is a requirement for mayhem that the disabling injury be permanent, so that the temporary disablement of a finger, arm, eye, or other member will not do.
 
Id. 7.17 at 698.  Perkins spoke of mayhem in terms[***10] of a permanent injury. Ch. 2, § 8 at 239, 241, and 242.  Wharton flatly declared: "At common law, and by statute, mayhem requires a disablement or disfigurement which is permanent in nature." § 206 at 337.
 
It has been held . . . that when a statute speaks of the disablement or disfigurement of a limb or a member of the body as a maiming, a permanent injury is contemplated such as at common law would constitute a mayhem. Hence, a temporary disabling of a finger, an arm, a leg, or an eye, is not sufficient to constitute the statutory offense.
 
53 Am.Jur.2d § 3 at 490 (footnote omitted).  See Annot., 16 A.L.R. 955 (1922), supplemented by Annot., 58 A.L.R. 1320 (1929).
 
   There is no disagreement among the scholars that mayhem as it was known in ancient times and as it is known today requires a permanent injury. This is so whether the offense is spoken of in terms of maiming, disfigurement, or disablement and despite the fact that the emphasis in modern times is on the completeness and integrity of the body, rather than its efficacy in battle.

   B

   We have no reason to assume that when the Legislature created the offense of assault with intent[***11] to maim, disfigure or disable a hundred and thirty-eight years ago and reviewed the statute, twenty-five years ago, it was not fully aware of the requirement at the common law that maiming, disfigurement or disablement be permanent. We noticed, supra, that §§ 384, 385 and 386 are all concerned with [*459] mayhem. In Booth v. State, 306 Md. 172, 212, 507 A.2d 1098 (1986), reversed in part on other grounds, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987), we linked § 385 and § 386.  We said that "[a]n assault with intent to maim [under § 386] is an assault perpetrated with the intent to inflict one or more of the injuries described in § 385." It would be incongruous, indeed, if the Legislature, in light of the concept of the permanent nature of a maiming, which has been firmly fixed in the law since ancient times, intended, by its silence on the matter, that maim, disfigurement and disablement as they appear in § 386, need only be temporary. The intent to maim reflects the crime of mayhem, and the intent to disfigure and the intent to disable, in the context in which they appear, are inexorably bound[***12] to that crime.  We cannot conceive that the Legislature, in proscribing an assault with intent to maim, disfigure or disable, thereby divorced disfigure and disable from the crime of maiming. The face of the statute does not support such a notion, the legislative history of the statute does not suggest it, and no opinion of this Court indicates it.

   We hold that the trial judge erred when he instructed the jury, in effect, that if it found that Hammond assaulted Schoene with the intent to maim, disfigure or disable him, it was immaterial whether the intent was to maim, disfigure, or disable him permanently or temporarily. It was very material in the circumstances here, as a review of the evidence clearly demonstrates.  We give a compendium of the evidence.

   [**349] C

   The catalyst in the sordid affair, which the trial brought to light, was Peggy McElroy.  She was enamored of Hammond and David Schoene, and she bestowed her affections from time to time on each of them.  McElroy lived with Hammond in her home for some one and a half years.  She asked him to leave the residence in June 1985, but their relationship was not completely terminated.  He retained a key to the front door and spent the[***13] night there as [*460] recently as 5 July 1989.  Starting in January 1989, David Schoene moved in with her in her home.  He left the following May to return to his children, but continued to visit her.  She told Hammond in June that she was no longer "seeing" Schoene.  Hammond did not know that McElroy and Schoene had, in fact, resumed their relationship.  McElroy and Schoene were together on 9 July 1989. They went out to dinner and then returned to McElroy's home.  Schoene left to go to a neighborhood bar, and, during his absence, McElroy received a phone call from Hammond.  They discussed their mutual problems.  Hammond told her that he would "come over in a second" if she wanted him.  According to Hammond, she said she wished he would, but McElroy denied that she had said so.  Schoene returned, and eventually they retired for the night, sharing the waterbed in her bedroom on the second floor.

   They were awakened about 3:00 a.m. by the presence of Hammond looming over them.  Hammond said that a friend drove him to McElroy's home because his car was "broke down." Hammond was unable to gain entrance by way of the front door (it now had two locks, and he had a key to only one of[***14] them).  He knocked to awaken McElroy, but she did not answer.  He went to the rear of the house and found the back entrance unlocked.  He entered, went to the second floor bedroom, pushed open the door and walked into the room.  What he saw left him "confused, very upset, and [unsure] of the situation at the time." McElroy and a man were in bed together.  "[T]here wasn't any covers or anything and both of them were just laying in bed." He thought that McElroy was drunk and that the man in bed with her had taken advantage of her.  Although he did not know Schoene, apparently he was satisfied that the man was Schoene.  McElroy had told him that she had met Schoene at a party and that "she just dated him, and that that was over, he wasn't a nice person, he wasn't nice to the kids at all." She also told Hammond that Schoene was "a black belt and kick box champion, and that he was real tall and all . . . ." (Hammond was six feet tall, weighed 190 [*461]pounds, and had been a military police officer for three years).  His intention was "[j]ust to tell [Schoene] to leave," and he thought that he would be more persuasive if he had something with which to protect himself.  He went [***15]downstairs.  Although he knew where McElroy kept the kitchen knives, he did not get a knife because he did not "want anybody to get hurt, and if there is wrestling around, anything could happen." He did not see anything which suited his purpose in the living room.  He went to the basement and saw a heavy metal rake, "but it had all these points on it." He did not take the rake "because with the points anything could happen, the person's eye or anything." He saw a shovel and armed himself with that.  It was the subject of a photograph admitted into evidence.  The photograph showed that the shovel was of the type commonly used to dig into the soil.  It had a long, thick handle to which was attached a concave blade. The blade tapered to a rounded point.  The edges of the blade were sharp enough to facilitate the entrance of the blade into the ground.

   Hammond said that he went back upstairs "to try and have [Schoene] leave without anybody getting hurt, to try not to hurt myself." He was "hoping that [the shovel] would have been enough to at least keep him away from me, 'cause [Schoene had] a black belt." He was going to try to wake Schoene up, tell him to leave but he was afraid [***16] that Schoene would not go peaceably.  So, "I figured well maybe if I hit the guy one time . . . I hate to say it, but if I hit the guy one time it could stun him and [I could] just tell the guy to get out." Schoene was on his back "with his [**350] arms to his side." Hammond did not hit him in the head, nor did he hit him with the edge of the shovel or prod him with the pointed edge of the blade. "I went down on his chest . . . as flat as I could . . . so it wouldn't be anything serious [but] enough to stun the guy to get him out, or at least to take him off guard." Hammond backed away after he hit Schoene and said "get out." Schoene indicated a desire to leave, but Hammond kept yelling at him.  Schoene [*462] tried to get out of bed and put his left hand up to ward off the blows.  Hammond said, "I was scared.  I didn't know what he was going to do . . . .  What I was afraid of [was] that he was going to try and do something, so I hit his arm here." Hammond insisted that he was not trying to maim Schoene or to disfigure him or to disable him. "I was trying to be real careful." Schoene said that he was whacked with the shovel 20 to 30 times, but Hammond "seriously doubted" that he[***17] rained that many blows on Schoene.  Schoene fruitlessly attempted to ward off the blows with his left arm. Schoene headed toward the bedroom door.  Nevertheless, Hammond continued to smite him with the shovel. At the top of the stairs, Schoene asked for his pants -- he was "totally undressed," but Hammond told him to forget it.  Hammond said he could have pushed Schoene down the stairs, but "I wasn't ruining my life for that." Hammond told Schoene to go downstairs and followed him down.  At the bottom of the stairs Schoene again asked for his pants.  Hammond got them from the bedroom, gave them to Schoene, opened the front door and pointed, saying "get out." Schoene left.  Hammond again declared that he did not "intend to kill" Schoene and disavowed that he intended "to permanently disfigure [Schoene] or disable him."

   Schoene put on his pants and fled the scene in his van.  He was stopped by a police officer because the vehicle ran a red light and was weaving in its progress down the road.  As the officer approached the van, Schoene fell out the door.  The left side of his face and body was covered with blood. His left arm was bleeding, and it seemed that he was unable to move[***18] it.  He was crying as if in pain.  Another officer arrived on the scene, and she described Schoene as very emotional and very upset and with blood "splattered" from head to foot.  Schoene was taken to a hospital in an ambulance.  The hospital medical record was admitted in evidence.  The pertinent parts are in handwriting of nurses and doctors, but as best we can make out there was no head injury. Schoene suffered abrasions, [*463] contusions, lacerations, and bruises on the left front and back of his body, on his left arm, and on his left leg.  The report of the radiologist indicated that the injuries were the result of trauma, but "no fracture, dislocation, or other bone or joint abnormality" was shown of the left forearm, left hand, and left knee.  Although he was in the hospital only a couple of hours, he was in extreme pain.  He was sent to a "specialist" for his hand.  He testified:
 
The tips of my fingers were probably a half inch longer than they are now, with blood blisters that had formed.  And they were extremely painful.  All four fingers were like that.  This knuckle was busted open.  This finger was cut.
 
Eighteen color photographs were received in evidence. [***19] One showed Schoene with his left arm in a sling, bandages on his left hand and fingers, a bandage on his left leg from above the knee halfway to his ankle, blood on his pants, and a pained expression on his face.  Others were close-ups of his injuries -- a large red bruise on the left side of his midsection, lacerations on his left arm, and another large red bruise on the left side of his upper back.  There were photographs which traced his progress from the bedroom to the front door by spatterings of blood -- on the bedroom rug near the bed, on the doorway of the bedroom, on the hallway next to the bedroom, on the carpet in the hallway, on the floor at the head of the stairs, on the stairway, and on the wall going down the stairs.

   It was elicited from Schoene that, at the time of the trial, he did not have "any restriction on the mobility of [his] hand or arm . . . ." The beating left Schoene with scars on his left arm and a "minor long [**351] scar" on his left leg.  The scars were exhibited to the jury.  Schoene claimed that the scars were permanent.
 
   It is axiomatic that the weight of the evidence and the credibility of witnesses are always matters for the jury to determine when it is[***20] the trier of facts.  Perry v. State, 234 Md. 48, 51, 197 A.2d 833 (1964); Duffin v. State, 229 Md. 434, 436, 184 A.2d 624 (1962); Reynolds v. State, 219 Md. 319, 326, [*464] 149 A.2d 774 (1959). On the evidence here, the jury could have found that Hammond assaulted Schoene with the intent to disable him permanently, or only temporarily. The question to the judge indicated that the jury was considering both possibilities.  Inasmuch as an intent to disable temporarily would not support a verdict of guilty, the question of temporary or permanent was material indeed.

   V

   The State presents the question:

   Whether in response to its inquiry the jury was properly instructed that to satisfy the specific intent requirement on the charge of assault with intent to maim, disfigure or disable, the intent need not be to disfigure or disable permanently?
 
It argues that the challenged instruction was proper, but we are not persuaded by its reasoning.  The State cites to three cases of this Court which touched on § 386, Dillsworth v. State, 308 Md. 354, 519 A.2d 1269 (1987);[***21] Robinson v. State, 307 Md. 738, 517 A.2d 94 (1986); and State v. Jenkins, 307 Md. 501, 515 A.2d 465 (1986). It observes that our opinions in those cases did not "indicate any need to intend to injure the victim permanently." We agree that they did not.  But neither did they indicate that the injury need be only temporary; the question was not before us in those cases, and we had no occasion to address it.  The State also goes "[o]utside the context of mayhem and statutory maiming" and suggests that "the notion of 'disability' is common to the law and in no sense contemplates any form of permanent injury." It gives as examples that the statute of limitations for a person under a mental disability is stayed until such time as the disability is removed, and that a person "may receive workmen's compensation benefits for temporary total disability or temporary partial disability." The State concludes from those examples that "[t]here is simply nothing in the use of the term 'disable' to suggest the intent be to disable permanently." [*465] The examples do not permit the quantum leap made by the State.  [***22] Mental disability and disability under the workers' compensation law have absolutely nothing to do with disablement by maiming, and are of no significance whatever in divining the legislative intent as to § 386.  The bottom line of the State's argument is: "Inasmuch as there is no requirement in Art. 27, § 386 that the intent be to maim or permanently disfigure or permanently disable, the trial court correctly instructed the jury in response to the jury's inquiry." Of course, the plain language of the statute declares that it is a crime to assault a person "with intent to maim." With respect to the intent to "disfigure" and "disable," the State disregards the context in which those words are used and their affinity to §§ 384 and 385, which deal with mayhem. Most importantly, the State simply avoids any discussion of the steadfast recognition, harking back to the first violent deprivation of the use of those members as may render a person less able in fighting, that the deprivation must be permanent.

   We note that the State does not suggest the measure of "temporary." Would a day suffice, or a week, or must it be satisfied, even though not permanent, by a period of protracted or[***23] long duration?  If the Legislature desired to depart from the common law concept of permanency inherent in §§ 384, 385 and 386, and adopt a view that a maiming, disfigurement, and disablement may be temporary, the meaning of temporary would be a matter for it to announce.  If "temporary" is not qualified (the State does not suggest that it be), it would be mayhem to disfigure a person by blackening his eye or to disable him by spraining his finger, both injuries ordinarily being temporary in nature.  We cannot imagine that the Legislature intended such an absurd [**352] result, for all along, it has obviously been of the view that its mayhem statutes proscribe serious offenses.  Hammond is entitled to a new trial.

   JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY REVERSED; CASE REMANDED [*466] FOR A NEW TRIAL; COSTS TO BE PAID BY ANNE ARUNDEL COUNTY. 

CLOVERLAND FARMS DAIRY, INC. v. Alfred J. FRY, Jr. 
No. 29, September Term, 1990
 
Court of Appeals of Maryland
 
322 Md. 367; 587 A.2d 527; 1991 Md. LEXIS 68

 March  27, 1991  
 March  27, 1991, Filed

   SUBSEQUENT HISTORY: [***1]

   Motion for Reconsideration Denied May 3, 1991.

PRIOR HISTORY:  
 
Appeal from the Circuit Court for  Anne Arundel  County pursuant to certiorari to Court of Special Appeals, Warren B. Duckett, Jr. Judge.

DISPOSITION: JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY REVERSED, EXCEPT AS TO THE SUM OF $2,603.00 INVOLVING NON-LOTTERY TICKET SALES, AS TO WHICH THE JUDGMENT FOR THIS AMOUNT, WITH INTEREST FROM THE DATE OF JUDGMENT IS AFFIRMED; CASE REMANDED TO THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY FOR ENTRY OF A DECLARATORY JUDGMENT CONSISTENT WITH THIS OPINION.  COSTS IN THE CIRCUIT COURT AND IN THIS COURT TO BE PAID NINE-TENTHS BY THE APPELLEE AND ONE-TENTH BY THE APPELLANT.

CORE TERMS:  lease, lottery, ticket, gross sales, rental, leased, gross receipts, rent, licensed, lottery ticket, selling, realized, lessee, loaf of bread, contemplation, temporarily, computing, written language, irrespective, restaurant, entitled to retain, lease provided, yield a profit, calendar year, total amount, food store, applicability, calculate, retail

COUNSEL: Nathan Patz, Alan Abramowitz, Baltimore, on brief, for petitioner/cross respondent.

   David A. Simison, Millersville, for respondent/cross petitioner.

JUDGES: Murphy, C.J., and Eldridge, Rodowsky, McAuliffe and Chasanow, JJ.

OPINIONBY: MURPHY

OPINION: [*368] [**528] The question presented is whether the term "gross sales," used in a retail food store lease to determine the amount of additional percentage rent to be paid by the lessee, included the gross receipts realized from the lessee's sale of lottery tickets.
 
   I.

   On August 29, 1969, Cloverland Dairy Farms, Inc. leased[***2] land in Anne Arundel County from Alfred J. Fry, Jr. for a term of forty years.  The lease provided that Cloverland would construct a building on the property to be used "for the conduct and operation of a retail food store, including as products farm and milk products and by-products and all such other wares and articles of merchandise" as may be sold in a Business Retail zoning classification.  The lease further provided that Cloverland would pay, as rent, $375 per month and, as additional rent, an amount equal to a specified percentage of "gross sales made in the store" during the calendar year, less the total monthly rental paid [*369] during the preceding calendar year. Specifically, the lease provided:
 
"In computing sales for the purpose of this provision, Lessee shall take the total amount of sales of every kind made in the store on the leased premises and deduct therefrom the following, to the extent that same are included in such total amount: (1) refunds made to customers, (2) sales, excise and gross receipts taxes, and (3) proceeds from sale of money orders (fee received for issuance of money orders shall not be deducted)."

   When the lease was executed in 1969, [***3] the sale of lottery tickets was illegal in Maryland.  Three years later, the General Assembly authorized the sale of lottery tickets by agents of the State, the proceeds to be collected for the State's use and account.  The selling agents were entitled to retain a specified commission from the sale of the tickets. In 1983, Cloverland was licensed as a lottery agent and began selling tickets on the leased premises. In the ensuing years, in computing the amount of its gross sales for purposes of paying the percentage rental required by the lease, Cloverland included only commissions retained by it from the sales of lottery tickets rather than the gross receipts realized from the sales.

   In March, 1988, following Fry's claim that the percentage due under the lease applied to the full dollar amount of all lottery sales made on the leased premises, Cloverland filed a declaratory judgment action in the Circuit Court for Anne Arundel County.  It asked the court to construe the lease to exclude the gross receipts from the sale of lottery tickets from inclusion within the term "gross sales," as used in the lease; and to conclude that the percentage rental payable by Cloverland to Fry on its[***4] sale of lottery tickets was limited to the amount of commissions received by it for making such sales.  In a counterclaim, Fry sought a declaration that the lease covered all sales within the definition of "gross sales," including the sale of lottery tickets, and that the percentage rental be so calculated.

   [*370] Upon motions for summary judgment filed by each party, the trial court (Duckett, J.), after a hearing, determined that the gross receipts from the lottery sales fell within "the sales intended by the parties to be included within gross sales for the purposes of calculating the percentage rental as such intent is evidenced by the clear and unambiguous language of the lease." In this regard, the court said that the clear import of the lease required that "all sales of any kind made in the store on the leased premises are to be included in gross sales for the purpose of computing the percentage rental." (Emphasis in original.) It said that the language of the lease did not "limit the applicability of the [**529] percentage rental to only those sales made by Cloverland of products which were in existence and within the contemplation of the parties at the time the lease was[***5] executed." Moreover, according to the court, the lease did not limit the applicability of the percentage rental to only sales made by Cloverland itself or as principal.  Consequently, the court concluded that the lease did not distinguish between sales made by Cloverland from its inventory and those made by it as agent for another.  The court also found that the fact that lottery sales were illegal at the time the lease was executed, and thus were not within the contemplation of the parties, was irrelevant.

   Finally, the trial judge made these observations:

   "In agreeing to calculate the percentage rental based on gross sales, the parties manifested an intent to disregard the profits or losses realized by Cloverland in determining Cloverland's rental obligations.  Both parties are bound by that determination.  Cloverland must pay percentage rental on every sale that occurs in the store on the premises.  In deciding whether to make a sale, or permit a sale to be made, Cloverland is confronted with a business decision.  This decision is no different in the case of lottery tickets than it is in the case of a loaf of bread. As Cloverland must determine whether selling the loaf of bread[***6] will yield a profit, it must also determine whether selling a lottery ticket will yield a profit. The [*371] fact that Cloverland, in the case of the loaf of bread, 'pays' its supplier for the loaf, sells it for a higher price and retains a profit and, in the case of a lottery ticket, sells the ticket, remits the receipts to the State of Maryland and retains a commission authorized by statute is irrelevant."

   Cloverland appealed to the Court of Special Appeals.  We granted certiorari prior to that court's consideration of the issue raised in the case.

   II.

   The Maryland State Lottery Law was enacted by ch. 365 of the Acts of 1972, now codified as Maryland Code (1984), §§ 9-101 to 9-125 of the State Government Article.  Under its provisions, the Director of the State Lottery Agency is authorized to license agents to sell lottery tickets. § 9-112.  The licensed sales agents are authorized to receive regular commissions not to exceed 5% of gross receipts, as well as "special bonuses or incentives" within a designated sum.  § 9-117.  Except for these amounts, "all of the receipts from the sale of State lottery tickets are due to the Agency on the due date that the Agency sets." §[***7] 9-119.

   Because the sale of lottery tickets was illegal in Maryland when the lease was executed in 1969, Cloverland renews its argument that such sales were not within the contemplation of the parties in calculating "gross sales" subject to the percentage rental clause of the lease. Cloverland maintains that this intention is readily evident from the provision in the lease, which explicitly authorizes a deduction from gross sales of all receipts, other than sales commissions, derived from its sale of money orders on the leased premises. Moreover, Cloverland contends that the gross receipts from lottery ticket sales, other than earned commissions, are "trust funds" which it possesses only temporarily as the State's agent and thus these monies are totally different than those generated by its sale of goods upon the leased premises. Cloverland further suggests that in no event can [*372] its lottery ticket activity be deemed to constitute a "sale" but rather is a part of a State-controlled gambling activity where only a "chance" to win a prize is purchased from the licensed agent.

   Fry maintains, as the trial court held, that it is not relevant that the parties did not specifically[***8] contemplate lottery sales when the lease was drafted.  He argues that since the percentage rental provision applies unambiguously to "sales of every kind made in the store on the leased premises," the plain meaning of the clause includes lottery ticket sales.  Fry points out that the objective theory of contracts is applied in Maryland and limits the court to the "four corners" of the contract in determining the intention of the parties.  He relies upon our cases, including Slice v. Carozza Properties, Inc., 215 Md. 357, 368, 137 A.2d 687 (1958), which held that "the written language embodying the terms of an agreement will govern the rights and liabilities of the parties, irrespective of the [**530] intent of the parties at the time they entered into the contract, unless the written language is not susceptible of a clear and definite understanding, or unless there is fraud, duress, or mutual mistake." Fry argues that the "gross sales" provision of the lease applies to all sales on the leased premises, irrespective of who the seller may be, whether a trustee, agent, consignee, or otherwise.  It is where the sale is made, Fry suggests, that is the determinative[***9] factor.  As to the express deduction from "gross sales" of money orders sold on the leased premises, Fry says that no other exclusion is authorized in the lease and, consequently, lottery sales are included.

   III.

   In Food Fair Stores v. Blumberg, 234 Md. 521, 533, 200 A.2d 166 (1964), we observed:

   "Although percentage leases are generally governed by the rules of law applicable to ordinary leases, the peculiar features of provisions making rental dependent in some way upon the percentage of income from, or gross sales [*373]of, business on the leased premises frequently present difficult questions of construction, which render such leases in the nature of agreements sui generis."

   We find no ambiguity in the language of the lease in this case.  As we stated in Kasten Constr. v. Rod Enterprises, 268 Md. 318, 301 A.2d 12 (1973), in applying the objective test for interpreting contracts where, as here, the language of a contract is not ambiguous, "the true test of what is meant is not what the parties to the contract intended it to mean, but what a reasonable person in the position of the parties would have thought[***10] it meant." 268 Md. at 329, 301 A.2d 12. See also Feick v. Thrutchley, 322 Md. 111, 586 A.2d 3 (1991), and cases therein cited.

   In applying the objective theory of contracts to the lease now before us, we recognize that Cloverland agreed to pay a specified percentage of its gross sales "of every kind" made on the leased premises as additional rent. We think reasonable persons in the position of the parties would have thought that the additional rental percentage clause encompassed the sale of any and all items, not expressly excluded, which Cloverland would sell in its store in the course of its business activities.  It was reasonable that the parties would view the percentage rental provision of the lease as applying to the gross amount of its sales -- amounts which Cloverland was entitled to retain as its own property. We think that the parties would reasonably have recognized that monies produced by Cloverland from its sale of lottery tickets, other than sales commissions, did not belong to Cloverland, but were held only temporarily by it.  In these circumstances, it was reasonable that the parties would recognize that [***11]Cloverland's activities as a licensed sales agent for the State in the sale of lottery tickets produced for it only commission revenues limited by law.  In effect, Cloverland sold its services to the State in return for these sales commissions and it is only that amount that is subject to the percentage rental clause of the lease. Indeed, the reasonableness of that understanding is fortified by the treatment afforded by the lease to money order sales by [*374]Cloverland, which included only commissions as a part of "gross sales," thus recognizing that Cloverland was in reality selling a service in return for commissions.

   Generally supportive of our conclusion in this case is Anest v. Bellino, 151 Ill.App.3d 818, 104 Ill.Dec. 861, 864, 503 N.E.2d 576, 579, cert. denied, 114 Ill.2d 543, 108 Ill.Dec. 414, 508 N.E.2d 725 (1987). There, the court held that the term "gross sales," as used in a restaurant lease to determine the amount of additional percentage rent due, did not include the gross receipts realized from sales of lottery tickets but only the five percent commission which the restaurant[***12] actually received for its service.  The court reasoned that the money received from the sale of lottery tickets, minus the amount retained by the lottery agent, only temporarily comes into the possession of the lottery agent but is not its property; it concluded that "amounts which are not income to a lessee are not received by him within the meaning of gross sales." 104 Ill.Dec. at 865, 503 N.E.2d at 580.

   [**531] We, therefore, determine in this case that Cloverland's sale of lottery tickets constituted a sale of its service to the State, for which it received a commission, and that only those amounts are includable within the "gross sales" formulation of the lease for purposes of applying the additional rental percentage provisions of the lease. n1

n1 By chs. 315 and 316 of the Acts of 1988, effective July 1, 1988, and now codified as Code (1990 Cum.Supp.) § 9-117(c) of the State Government Article, it is now provided:

   "(c) Rental payments.  -- Unless otherwise expressly provided by a lease for premises on which lottery tickets are sold, whenever lottery tickets are sold by a licensed agent on premises subject to rent that is wholly or partially based on a percentage of gross sales or receipts, the tenant responsible for payment of the rent may calculate that portion of the rent arising from the sale of lottery tickets solely on the basis of:

   (1) the commission received by the licensed agent on the sale of those tickets; and

   (2) in the case of instant lottery tickets, the difference between the price paid by the licensed agent in purchasing the tickets from the Agency and the price for which they were sold by the agent."

[***13]

   [*375] JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY REVERSED, EXCEPT AS TO THE SUM OF $2,603.00 INVOLVING NON-LOTTERY TICKET SALES, AS TO WHICH THE JUDGMENT FOR THIS AMOUNT, WITH INTEREST FROM THE DATE OF JUDGMENT IS AFFIRMED; CASE REMANDED TO THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY FOR ENTRY OF A DECLARATORY JUDGMENT CONSISTENT WITH THIS OPINION.  COSTS IN THE CIRCUIT COURT AND IN THIS COURT TO BE PAID NINE-TENTHS BY THE APPELLEE AND ONE-TENTH BY THE APPELLANT. 

Robert H. POPE v. Debra M. POPE 
No. 104, September Term, 1990
 
Court of Appeals of Maryland
 
322 Md. 277; 587 A.2d 481; 1991 Md. LEXIS 60

 March  25, 1991  
 March  25, 1991, Filed

   SUBSEQUENT HISTORY: [***1]

   Motion for Reconsideration Denied April 29, 1991.

PRIOR HISTORY:  
 
Certiorari to Court of Special Appeals; Circuit Court for  Anne Arundel  County, Bruce C. Williams, Judge.

DISPOSITION: THE JUDGMENT OF THE COURT OF SPECIAL APPEALS IS REVERSED; THE CASE IS REMANDED TO THAT COURT WITH DIRECTION: TO VACATE THAT PART OF PARAGRAPH 6 OF THE MAY 15, 1989 ORDER OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY WHICH COMMANDS THAT "THE NET PROCEEDS" FROM THE SALE OF THE HOME BE "EQUALLY DIVIDED BETWEEN THE PARTIES;" AND TO REMAND THE CASE TO THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY FOR FURTHER PROCEEDINGS IN ACCORD WITH THIS OPINION.  COSTS TO BE PAID IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS BY THE RESPONDENT.

CORE TERMS:  marital property, marital, nonmarital, gift, monetary award, entirety, tenants, net proceeds, legalistic, titling, spouse, equally divided, mortgage, deed, fair return, characterizing, proportionate, contributed, absolute divorce, third party, annulment, conveyed, shortcut, marriage

COUNSEL: Charles J. Muskin, Glen Burnie, for petitioner.

   H. Robert Scherr (Scherr, Cole & Murphy, on the brief), Pikesville, for respondent.

JUDGES: Murphy, C.J., Eldridge, Rodowsky, McAuliffe, Chasanow and Karwacki, JJ., and Charles E. Orth, Jr., Judge of the Court of Appeals (retired), Specially Assigned.

OPINIONBY: ORTH

OPINION: [*278] [**482] We are called upon in this case to determine whether the Court of Special Appeals erred in holding that fee simple property, known as 1812 Beach Avenue, Hanover, Anne Arundel County, Maryland (the home), [***2] was marital property. We conclude that it did.

   [*279] The General Assembly dealt with property disposition in divorce and annulment by an act bearing that label, now codified as Maryland Code (1984 Repl.Vol.) §§ 8-201 through 8-213 of the Family Law Article (the Act).  Section 8-201(e) defines marital property:
 
(1) "Marital property" means the property, however titled, acquired by 1 or both parties during the marriage.
 
(2) "Marital property" does not include property:
 
(i) acquired before the marriage;
 
(ii) acquired by inheritance or gift from a third party;
 
(iii) excluded by valid agreement; or
 
(iv) directly traceable to any of these sources.
 
Section 8-203(a) commands:
 
In a proceeding for an annulment or an absolute divorce, if there is a dispute as to whether certain property is marital property, the court shall determine which property is marital property.
 
Section 8-204 requires the court to "determine the value of all marital property." Section 8-205(a) provides in pertinent part:
 
After the court determines which property is marital property, and the value of the marital property, the court may grant a monetary award as an adjustment of the[***3] equities and rights of the parties concerning marital property, whether or not alimony is awarded.
 
This section also calls upon the court to determine the amount and method of payment of a monetary award after considering each of ten enumerated factors.

   The home in this case was owned by and resided in by Joseph T. Pope, Sr., whose first wife died in 1960.  His sons, Robert and Joseph, Jr., known as Tommy, "grew [**483] up" in the home.  The father remarried in 1974 and took up residence in his wife's home.  He said at the trial which provoked this appeal that he felt "very close to both my sons." So, he testified, he decided to give the home to his sons.  Robert and his wife, Debra, desired to maintain their residence in the home, but Tommy lived elsewhere.  Tommy [*280] preferred to receive cash for the interest given him by his father so he could enjoy his father's largess without further ado.  The father consulted an attorney to effectuate his gift to his two sons.  The home was appraised at $32,000.  The attorney arranged with a bank for a loan to Robert and his wife in the amount of $16,000 to be secured by a mortgage on the home.  The attorney prepared a deed conveying the[***4] home from the father to Robert and Debra, as tenants by the entireties, and a mortgage from them to the bank in the amount of $16,000.  The deed and the mortgage were executed on 9 October 1975. The settlement sheet states that the contract price was $16,000.  That amount was turned over to Tommy, thereby satisfying his interest in the home.
 
   In 1977 Robert and Debra refinanced the home in the amount of $22,500 and $6,000 of the proceeds were used to purchase a 1.4 acre lot adjacent to the home. Fee simple title was conveyed to Robert and Debra as tenants by the entireties. In 1985 Robert and Debra borrowed $35,000, secured by a second mortgage on the home, and used the money to improve the home.

   All was well until Robert and Debra had a parting of the ways.  On 15 May 1989, the Circuit Court for Anne Arundel County granted the parties an absolute divorce. By paragraph 6 of the judgment of divorce, the court awarded Robert
 
the use and possession of the marital home . . . for three years from the date of this Order.  The home will then be sold and the net proceeds equally divided between the parties. n1
 
Robert's request for a monetary award was denied.

n1 The lot was ordered to be sold forthwith, and the net proceeds were to be equally divided between the parties.  Paragraph 7 of the judgment.  This order is not challenged.

[***5]

   Robert was unhappy with that part of the judgment which covered the disposition of the proceeds from the sale of the home.  He expressed his discontent by noting an [*281] appeal.  The Court of Special Appeals affirmed the judgment.  Pope v. Pope, No. 1274, September Term, 1989, filed 11 June 1990, unreported.  Robert turned to us, and we granted his petition for the issuance of a writ of certiorari.
 
As the Court of Special Appeals saw it, Robert challenged the failure of the [trial] court to determine that half the value of the marital home constituted nonmarital property and to make a monetary award to him based on that value.  He claims that he is entitled to receive "a proportionate and fair return on his nonmarital investment," citing Watson v. Watson, 77 Md.App. 622, 638 [551 A.2d 505] (1989).

   Pope v. Pope, supra, slip opinion at 1.  The notion of the Court of Special Appeals was that it could not overlook the actual revolution of title to the home.  It opined:
 
Whatever may have been the father's initial subjective intent, the fact is that he conveyed the entire property to Robert and Debra jointly.  Robert never, even for[***6] a second, owned any interest in the property that Debra did not also own.
 
Id., slip opinion at 3.  That notion is contrary to the Act and the case law of this State.

   In Harper v. Harper, 294 Md. 54, 448 A.2d 916 (1982), we traced the history of the Act in depth and divined the legislative intent.  Id. at 61-78, 448 A.2d 916. With respect to the determination whether property was marital property, we rejected "the inception of title theory." Id. at 78, 448 A.2d 916. We thereby effectuated the Act's purpose, we said, of ending the inequity inherent in Maryland's old "title" system of dealing with the marital property of divorcing spouses. Id. at 79, 448 A.2d 916. We concluded that
 
under the Maryland Act the appropriate analysis to be applied is the source of funds theory.  Under that theory, when [**484] property is acquired by an expenditure of both nonmarital and marital property, the property is characterized as part nonmarital and part marital. Thus, a [*282] spouse contributing nonmarital property is entitled to an interest in the property [***7]in the ratio of the nonmarital investment to the total nonmarital and marital investment in the property.  The remaining property is characterized as marital property and its value is subject to equitable distribution.  Thus, the spouse who contributed nonmarital funds, and the marital unit that contributed marital funds each receive a proportionate and fair return on their investment.
 
Id. at 80, 448 A.2d 916. In Grant v. Zich, 300 Md. 256, 477 A.2d 1163 (1984), we quoted at length from Harper, and confirmed that the appropriate analysis to be applied in characterizing property as nonmarital or marital is the source of funds theory.  300 Md. at 263 and 265, 477 A.2d 1163. We said that under the statutory provisions
 
a determination of what constitutes marital property for the purpose of granting a monetary award is not dependent upon the legalistic concept of title.  The characterization of property as nonmarital or marital depends upon the source of the contributions as payments are made, rather than the time at which legal or equitable title to or possession of the property is[***8] obtained.
 
Id. at 269-270, 477 A.2d 1163. We held that
 
when characterizing property as marital or nonmarital . . . for the purpose of granting a monetary award . . ., a presumption of gift does not arise from the titling of property as tenants by the entirety.
 
Id. at 271, 477 A.2d 1163. We applied the teachings of Grant in Dorsey v. Dorsey , 302 Md. 312, 487 A.2d 1181 (1985). In Zandford v. Wiens, 314 Md. 102, 549 A.2d 13 (1988), we reiterated Grant's pronouncement that "'a determination of what constitutes marital property for the purpose of granting a monetary reward is not dependent upon the legalistic concept of title.'" 314 Md. at 109, 549 A.2d 13, quoting Grant, 300 Md. at 269-270, 477 A.2d 1163. And we repeated Grant's warning that "'a presumption of gift does not arise from the titling of property as tenants by the entirety.'" 314 Md. at 109, 549 A.2d 13, quoting Grant [*283][300 Md. 256] at 271, 477 A.2d 1163.[***9] We cited to Dorsey v. Dorsey, 302 Md. 312, 487 A.2d 1181. Cf. Niroo v. Niroo, 313 Md. 226, 545 A.2d 35 (1988).

   The reasoning of the Court of Special Appeals is distinguished by its obvious reliance on the outlawed legalistic concept of title.  The court recognized the father's clear intent to give each of his sons an equal share in the home. There is nothing to show that the father ever intended that his gift to Robert be shared by Debra except the way the attorney drew the deed. The trial judge commented that the bank, through the attorney, "made a shortcut here . . . rather than the deed ever going to [Robert] and his brother, it was directly from [the] father to [Robert] and his wife." Thus, the trial judge reasoned, "[Debra] really became a half owner of [Robert's] property right at that time." Therefore, the trial judge concluded, since Robert and Debra were married at the time, she is entitled to half of the net proceeds when the property is sold. The effect was that all of the home was marital property. The trial judge was wrong.

   The intermediate appellate court followed the trial judge down this primrose [***10]path.  The burden was on Debra to establish every element of a gift, and the proof must be by clear and convincing evidence.  Dorsey, 302 Md. at 318, 487 A.2d 1181. The only evidence, other than the titling, tending to show that Debra was entitled to a half-interest in the home was her flat assertion that she and Robert "purchased" the home from the father.  As we see it, Debra suggests that the "shortcut" in the conveyancing translated into a "sale" by the father and a "purchase" by Robert and her of the entire interest of the father, albeit for only half of the appraised value.  Then, she avers, the father made a gift to Tommy of the $16,000 she and Robert paid the father for the home.  We do not find [**485] this scenario to be persuasive in the circumstances. Furthermore, as we have seen, the conveyance to Robert and Debra as tenants by the entireties carried no presumption of a gift, either by the father to Debra or by Robert to her.  It is not disputed that [*284] the father's steadfast desire was to make a gift of the home to Robert and Tommy in equal shares.  It is clear that, under the established law of this State, the father's intent was not[***11] defeated by the manner in which the title to the home became vested in the names of Robert and Debra.  We hold that an amount representative of Robert's contribution of $16,000 was not marital property because it was acquired by Robert by gift from a third party in accord with § 8-201(e)(2)(ii) of the Act. n2 Therefore, we order that

   THE JUDGMENT OF THE COURT OF SPECIAL APPEALS IS REVERSED;

   THE CASE IS REMANDED TO THAT COURT WITH DIRECTION:

   TO VACATE THAT PART OF PARAGRAPH 6 OF THE MAY 15, 1989 ORDER OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY WHICH COMMANDS THAT "THE NET PROCEEDS" FROM THE SALE OF THE HOME BE "EQUALLY DIVIDED BETWEEN THE PARTIES;" AND

   TO REMAND THE CASE TO THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY FOR FURTHER PROCEEDINGS IN ACCORD WITH THIS OPINION.

   COSTS TO BE PAID IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS BY THE RESPONDENT.

n2 We call the attention of the trial court to Grant v. Zich, 300 Md. 256, 276 n. 9, 477 A.2d 1163 (1984), for guidance in calculating the non-marital and marital interests in the home.

[***12] 

Siu Leung SHUM v. D.L. GAUDREAU 
No. 1, September Term, 1991
 
Court of Appeals of Maryland
 
322 Md. 242; 587 A.2d 248; 1991 Md. LEXIS 54

 March  13, 1991  
 March  13, 1991, Filed

   PRIOR HISTORY: [***1]  
 
Circuit Court for  Anne Arundel  County; Warren B. Duckett, Jr., Judge.

DISPOSITION: IT IS SO ORDERED; COSTS TO ABIDE THE OUTCOME OF THE CASE.

CORE TERMS:  damages claimed, res judicata, enter judgment, issues presented, new trial, concise

COUNSEL: Charles J. Muskin, Glen Burnie, for petitioner.

   Robert N. Winkler, Towson, for respondent.

JUDGES: Murphy, C.J., and Eldridge, Rodowsky, McAuliffe, Chasanow and Karwacki, JJ.

OPINIONBY: PER CURIAM

OPINION: [*243] [**248] Petitioner seeks a writ of certiorari, asking that we review a judgment of the Circuit Court for Anne Arundel County, by which the circuit court decided an appeal on the record from the District Court of Maryland.  The underlying case began on 13 October 1987, when respondent sued petitioner for damages resulting from an alleged breach of a lease.  Following the initial trial of that case, the District Court entered judgment in favor of respondent for $6,500.  Petitioner appealed to the Circuit Court for Anne Arundel County contending that: 1) some of the damages claimed were not the responsibility of petitioner; 2) some of the damages claimed were barred by res judicata as a result of a previous action between the parties; and, 3) the evidence was insufficient to support certain of the damages claimed. The circuit court held that res judicata was not a bar to any[***2] of the damages claimed, but that because the District Court had failed to set forth any of its findings, the circuit court was unable to consider the balance of the appeal. The circuit court remanded the case for a new trial.

   We granted certiorari to review that action, and in Shum v. Gaudreau, 317 Md. 49, 562 A.2d 707 (1989), we reversed the judgment of the circuit court.  We held petitioner was [*244] not responsible for two substantial items of claimed damage.  We further found that res judicata was a bar to certain other claims.  We agreed with the circuit court that it was impossible to determine [**249]the remaining issues because of the failure of the District Court to make findings.  We pointed out, however, that the respondent had had a full opportunity to present his case, and that the circuit court should not have remanded the matter for a new trial. We ordered the circuit court to remand the case to the District Court so it might "consider the evidence already before it, make findings of fact as to the evidence supporting each claim, determine whether those facts are sufficient to support each claim, and if so, in what amount, and then enter[***3] judgment for Landlord for any sum so supported."

   The circuit court remanded the case in accordance with our mandate, and the District Court again considered the matter.  Petitioner tells us that at that hearing respondent presented a list of claims to the District Court judge, and asked the court to enter judgment according to the specific items which were on the list, in the total amount of $3,425 and costs.  Instead, the District Court entered a judgment in the amount of $6,042.  Petitioner contends that a substantial portion of the award, added by the District Court judge, was for an item respondent had not claimed during the original trial.

   Petitioner again appealed to the circuit court, raising a number of questions.  He suggested, for example, that the original complaint requested total relief of $9,200.  He argued that the two major items of damage which we had earlier ruled were not his responsibility totaled $4,550, so that the remaining claims embraced by the original complaint could not possibly total the $6,042 judgment entered by the District Court.  He complained that the District Court had added additional damages which had not previously been requested, and he[***4] included specific questions concerning the measure of damages employed by the District Court as to certain items, and the sufficiency of the evidence to prove certain other items.

   [*245] Following argument of the appeal, which was also on the record, the circuit court affirmed the judgment of the District Court, after deducting $100 from the verdict to remedy a computational error.  It is this judgment of the circuit court that petitioner now asks us to review.

   Unfortunately, and ironically in view of the history of this case, the circuit court did not provide an opinion that would permit us to intelligently consider the petition for certiorari.  The opinion of the circuit court reads as follows:

   Counsel heard.  Court affirmed decision of lower court with a correction of $100.00 to be deducted from the award.

   Given the difficulty visited upon the circuit court by the initial failure of the District Court to articulate its findings, we would have thought that the circuit court would be particularly attentive to the requirement that it file an opinion dealing with the issues presented to it.

   Maryland Rule 1392 provides:

   In every appeal decided on the record of the lower court, [***5] the appellate court shall render a concise opinion which shall be reduced to writing and filed with the clerk within sixty days of the argument.
 
We recognize the problems encountered by a busy trial court that must also function as an appellate court.  Nevertheless, the requirement of Rule 1392 is clear, and it exists for good reason.  The parties who prosecute an appeal on the record are entitled to at least a brief opinion demonstrating that the appellate court has considered the issues presented to it, and stating briefly the decisions made on each issue.  Moreover, the only review available to a party disappointed by the judgment of the circuit court in that instance is by way of petition for certiorari to this Court, and we must have the benefit of at least a concise opinion dealing with the issues in order to determine whether certiorari should be granted.

   We shall grant the petition for certiorari, vacate the judgment of circuit court, and remand the case to the circuit [*246] court for the entry of judgment accompanied by an opinion that conforms to the requirements of Rule 1392.

   [**250] IT IS SO ORDERED; COSTS TO ABIDE THE OUTCOME OF THE CASE. 

Elmer Maurice SNOWDEN v. STATE of Maryland 
No. 117, September Term, 1988
 
Court of Appeals of Maryland
 
321 Md. 612; 583 A.2d 1056; 1991 Md. LEXIS 18

 January  14, 1991

   PRIOR HISTORY: [***1]  
 
Certiorari to Court of Special Appeals (Circuit Court for  Anne Arundel  County); Eugene M. Lerner, Judge.

DISPOSITION: JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED AS TO THE ASSAULT AND BATTERY CONVICTION.  CASE REMANDED TO THAT COURT TO REVERSE IN PART THE JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY WITH DIRECTIONS TO THAT COURT TO MERGE THE CONVICTIONS AND SENTENCES FOR ASSAULT AND BATTERY AND ROBBERY WITH A DEADLY WEAPON.  ANNE ARUNDEL COUNTY TO PAY THE COSTS IN THE COURT OF SPECIAL APPEALS AND THIS COURT.

CORE TERMS:  robbery, battery, assault, shooting, merge, assault and battery, threat of force, punished, lesser, child abuse, sentence, gun, sexual, legislative intent, sex offense, merger, separate conviction, lesser offense, trier of fact, separate act, restaurant, convicted, kitchen, robbery charge, illegal sale, single act, common law, constituting, purchaser, ambiguity

COUNSEL: Mark Colvin, Asst. Public Defender (Alan H. Murrell, Public Defender, Jose' Felipe' Anderson, Asst. Public Defender, all on brief), Baltimore, for petitioner.

   Beverly Peyton Griffith, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., both on brief), Baltimore, for respondent.

JUDGES: Murphy, C.J., Eldridge, Rodowsky and McAuliffe, JJ., and Cole, ** Adkins * and Blackwell * (retired), Court of Appeals Judges, Specially Assigned. Concurring Opinion by McAuliffe, J., in which Murphy, C.J., joins.  Chief Judge Murphy joins in this concurring opinion.

** Cole, J., now retired, participated in the hearing and conference of this case while an active member of this Court; after being recalled pursuant to the Constitution, Art. IV, Sec. 3A, he also participated in the decision and the adoption of this opinion.

[***2] 

 * Blackwell, J., and Adkins, J., now retired, participated in the hearing and conference of this case while active members of this Court; but did not participate in the decision and adoption of this opinion.

OPINIONBY: COLE

OPINION: [*614] [**1057] In this case we must determine whether separate convictions for assault and battery and robbery with a dangerous and deadly weapon of one victim arising out of the events of one evening are proper, or whether the lesser offense of assault and battery merges into the greater robbery offense.

   The Petitioner, Elmer Maurice Snowden, was convicted in the Circuit Court for Anne Arundel County of first degree murder, n1 robbery with a dangerous and deadly weapon, and assault and battery for an incident that occurred on March 2, 1986.  On that night, Snowden and an accomplice approached the Romano's Restaurant in Glen Burnie with the intent to steal.  One of the restaurant employees, Pete [*615] Bucklew, opened the back door to take the trash to the dumpster, and Snowden entered through the open door, holding Bucklew and Michael Generette, another employee, at gunpoint.  Bucklew struggled for the gun and was shot and killed.  Upon hearing noises in the kitchen, the[***3] restaurant manager, Framouzis Stamidis, came from the office to the kitchen where he was immediately shot in the left arm by Snowden.  [**1058] Stamidis and Generette were then told to lie down on the floor.  Snowden, while pointing his rifle at the two men, asked repeatedly where Stamidis' gun was, but after several denials by Stamidis of the existence of a gun in the restaurant, Snowden ordered Stamidis to take him to the money.  Still at gunpoint, Stamidis led Snowden to the office where the money was located, and Snowden and his accomplice then left with $3000 taken from the restaurant. Snowden was apprehended several days later.

n1 Snowden does not dispute the conviction of and sentence for murder; that issue is not before us.

   Snowden does not contest his conviction for the murder of Bucklew.  He argues, however, that the separate conviction for assault and battery of Stamidis should have been merged into the greater offense of armed robbery. Snowden contends that the two offenses arose from the same transaction and [***4]that all of the elements of assault and battery that occurred here were also required to prove the robbery. Therefore, he argues, the lesser offense should merge into the greater.

   The State counters by stating that there were in fact two separate crimes perpetrated against Stamidis, one being the shooting (battery) as soon as Stamidis approached the kitchen (before the robbery began) and the other being the robbery itself with the requisite element of force or threat of force provided by the rifle constantly pointed at Stamidis' back while Snowden demanded money.  The State also avers that separate convictions for two offenses are proper if the lesser offense is not essential to effectuate the greater offense.  The State reasons that an assault (a threat of force) can support a robbery conviction and that a battery (a harmful or offensive touching) is not necessary to effectuate a robbery. Therefore, separate convictions [*616] for battery and robbery of one victim during one criminal episode can coexist.

   The judgment of the trial court was affirmed by the Court of Special Appeals. Snowden v. State, 76 Md.App. 738, 548 A.2d 165 (1988). We granted[***5] certiorari to decide the important issue of whether the offenses should merge.

   This Court has made clear that under both federal double jeopardy principles and Maryland merger law, the usual test for determining whether two offenses are the same is the required evidence test.  White v. State, 318 Md. 740, 569 A.2d 1271 (1990); State v. Ferrell, 313 Md. 291, 545 A.2d 653 (1988); Nightingale v. State, 312 Md. 699, 542 A.2d 373 (1988); Dillsworth v. State, 308 Md. 354, 519 A.2d 1269 (1987); State v. Jenkins, 307 Md. 501, 515 A.2d 465 (1986); Whack v. State, 288 Md. 137, 416 A.2d 265 (1980); Brooks v. State, 284 Md. 416, 397 A.2d 596 (1979); Newton v. State, 280 Md. 260, 373 A.2d 262 (1977). The required evidence test is often labelled the Blockburger test based on the Supreme Court's holding and analysis in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).[***6] n2

n2 The test is referred to as the Blockburger test although the test was actually first adopted by the Supreme Court in Gavieres v. United States, 220 U.S. 338, 31 S.Ct. 421, 55 L.Ed. 489 (1911). For a further discussion of the history of the required evidence test, see Thomas v. State, 277 Md. 257, 262-67, 353 A.2d 240 (1976).

   In Blockburger, the Petitioner was convicted of three counts of illegal sale of morphine hydrochloride to the same purchaser on two different days.  The third count of the indictment charged a sale of the drug not from the original stamped package in contravention of the then prevailing Harrison Narcotic Act; the fifth count charged that the same sale was not made pursuant to a written order of the purchaser as required by another provision of the Harrison Act. One of the Petitioner's principal contentions was that the sale charged in the third count constituted the same sale that was the basis for the fifth [***7]count, and therefore that [*617] sale should only have amounted to one offense with a single penalty.  Id. at 301, 52 S.Ct. at 181. The Supreme Court did not agree.  The Court held that a single act may be an offense against two statutes, and if each statute requires proof of a fact which the other does not, there are two separate offenses.  Id. at 304, 52 S.Ct. at 182. In Blockburger, each statute required proof of different [**1059] elements of the illegal sale of narcotics, and as such two offenses were committed.  Id.

   Although Blockburger involved statutory offenses, as stated above, the required evidence test is also the applicable standard under the common law Maryland merger doctrine.  The required evidence test "focuses upon the elements of each offense; if all of the elements of one offense are included in the other offense, so that only the latter offense contains a distinct element or distinct elements, the former merges into the latter." State v. Jenkins, 307 Md. at 517, 515 A.2d 465. If the offenses merge and are thus deemed to be one crime, separate sentences for each[***8] offense are prohibited.  Newton v. State, 280 Md. at 268, 373 A.2d 262. What we are called upon to do, then, is scrutinize the elements of robbery and assault and battery to determine whether all the elements of assault and battery were relied upon to find a robbery. If so, and the offenses occurred during one criminal act, Snowden's two convictions on those charges cannot stand.

   Assault has been defined as either "(1) an attempt to commit a battery or (2) an intentional placing of another in apprehension of receiving an immediate battery." Dixon v. State, 302 Md. 447, 457, 488 A.2d 962 (1985), quoting Perkins on Criminal Law 114 (2d ed. 1969).  Battery, another common law offense, is the unlawful application of force to the person of another.  "Robbery" is also a common law crime and refers to the felonious taking and carrying away of the personal property of another, from his person or in his presence, by violence or putting in fear.  [*618] West v. State, 312 Md. 197, 202, 539 A.2d 231 (1988); Williams v. State, 302 Md. 787, 792, 490 A.2d 1277 (1985).[***9]

   Robbery is a compound larceny.  It is a larceny from the person accomplished by either an assault (putting in fear) or a battery (violence).  Therefore, either combination produces a robbery. When such a "multi-purpose" crime is involved, we refine it by examining the alternative elements relevant to the case at issue.

   The State contends that the shooting was a separate act giving rise to a separate criminal offense.  We assume, for the sake of argument, that the fact finder had a basis for concluding either that the shooting was a separate act or that it was part of the robbery. Here it did neither and we need not venture a guess as we believe the rationale applied in Nightingale dictates a clear result.

   In Nightingale, we were faced with a similar situation.  There the issue was whether separate convictions and sentences for both child abuse and sexual offenses were proper when the State relied upon and proved the sexual offense to sustain the child abuse conviction.  According to the State, the abuse charge was not based on physical harm; the sex offenses themselves constituted the abuse.  The judge instructed the jury on the elements of all the offenses, and the prosecutor[***10] told the jury that the abuse consisted of the sexual offenses.  The Petitioner was convicted of both child abuse and the sexual offenses.

   We held that under the circumstances, the jury could have found the defendant guilty of child abuse based solely on evidence of some sexual offense.  If that were the case, then the sex offense would have become a lesser included offense of child abuse. The problem, however, was that we could not determine whether the general verdict of guilty of abuse was based on the sex offense as a lesser included offense or on other reasons.  Therefore, we resolved the ambiguity in favor of the defendant and set aside the sex offense counts.  See, id., 312 Md. at 708-9, 542 A.2d 373.

    [*619] We are faced with a similar ambiguity here.  We do not know whether the robbery charged was based on battery as a lesser included offense or on assault as a lesser included offense with the battery considered separate. Snowden's was a court trial; had it been a jury trial we could have looked to the judge's instructions in hope of illuminating the rationale behind the verdicts.  Because the case was tried by the court, we must look to[***11] the judge's rationale for the convictions.  That rationale [**1060] is not readily apparent to us, so, as in Nightingale, we are constrained to give the Petitioner the benefit of the doubt and merge his sentence for and conviction of assault and battery into those for the robbery charge. The fundamental principle of fairness in meting out punishment requires us to so hold.  See Monoker v. State, 321 Md. 214, 582 A.2d 525 [1990].

   Also, contrary to the view espoused by the Court of Special Appeals in this case, we note that it is of no moment that the act constituting the lesser included offense may involve more force than necessary to support the greater crime.  The "extra" force is not severed from the greater crime merely because it goes beyond that amount needed to sustain a conviction.  As Judge Moylan indicated in his dissent, "[i]t cannot be maintained that a necessary minimum amount of a legal element must merge but that any degree or amount above that minimum does not merge." Snowden v. State, 76 Md.App. at 752, 548 A.2d 165.

   Therefore, under the circumstances of this case the two offenses merge.

   JUDGMENT OF THE COURT[***12] OF SPECIAL APPEALS REVERSED AS TO THE ASSAULT AND BATTERY CONVICTION.  CASE REMANDED TO THAT COURT TO REVERSE IN PART THE JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY WITH DIRECTIONS TO THAT COURT TO MERGE THE CONVICTIONS AND SENTENCES FOR ASSAULT AND BATTERY AND ROBBERY WITH A DEADLY WEAPON.  [*620] ANNE ARUNDEL COUNTY TO PAY THE COSTS IN THE COURT OF SPECIAL APPEALS AND THIS COURT.

CONCURBY: McAULIFFE

CONCUR: McAULIFFE, Judge, concurring.

   I concur in the judgment and the opinion.  I write separately to express the view that the facts of this case clearly would have supported separate convictions.

   The question presented by this case involves the applicability of the doctrine of merger when there are several different acts of force or threats of force directed to the victim of a robbery during the criminal event.  The answer, which of necessity must depend upon the facts of each case, involves two principal considerations.  First, is the conduct constituting the assault or battery for which the State seeks a separate conviction sufficiently separate from the conduct necessary to establish the "force or threat of force" element of robbery so that dual convictions offend neither a sense of[***13] basic fairness nor essential protections of the Double Jeopardy Clause?  Second, does the record affirmatively show that the trier of fact, in finding the defendant guilty of robbery, did not in fact rely upon the conduct constituting the allegedly separate offense to satisfy the "force" element of the robbery?

   With respect to the first question, this Court has said that:
 
 separate acts resulting in separate insults to the person of the victim may be separately charged and punished even though they occur in very close proximity to each other and even though they are part of a single criminal episode or transaction.
 
State v. Boozer, 304 Md. 98, 105, 497 A.2d 1129 (1985).

   In a somewhat similar context, where the Court was concerned with legislative intent with respect to the proper unit of prosecution under a single statute, the Court explored the problem of separate offenses.  See Randall [*621] Book Corp. v. State, 316 Md. 315, 323-29, 558 A.2d 715 (1989). As was pointed out in Randall Book, the line is not always easy to draw.  The Supreme Court has held that the simultaneous transporting of two females[***14] across a state line for immoral purposes may be punished only as a single offense, Bell v. United States, 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905 (1955), but that the successive cutting of each of three mail bags on a single occasion within a single railway car may be punished as three separate offenses, Ebeling v. Morgan , 237 U.S. 625, 35 S.Ct. 710, 59 L.Ed. 1151 (1915). Two offenses may be committed by a single act, as where a person [**1061] wielding a knife against two detectives may be punished for two assaults, Cousins v. State, 277 Md. 383, 397, 354 A.2d 825 (1976). Yet, a person unlawfully carrying a single handgun continually for a three-hour period, at different locations, may be punished only for a single possessory offense.  Webb v. State, 311 Md. 610, 619, 536 A.2d 1161 (1988) (discussing "continuous offense" cases).  And, as Lord Mansfield pointed out in Crepps v. Durden, 2 Cowper, 640, 98 Eng.Rep. 1283 (K.B.1777) when Parliament prohibited the exercise of one's ordinary trade upon the Lord's [***15] Day, it could not have intended that a baker receive four convictions for selling four small loaves of bread on the same Sabbath, or that a tailor might be separately punished for each stitch taken on a single Sabbath. 

   In the case of multiple assaults or batteries, the line is equally difficult to draw.  Although these are common law crimes, and do not, therefore, involve legislative intent, it is appropriate in determining the propriety of cumulative punishments to employ the same basic standards of common sense and fairness that largely influence the outcome of legislative intent cases.  Certainly, where one person pummels another with his fists for several minutes, the law would not countenance a separate punishment for each time a blow is landed.  On the other hand, if one person were to inflict various types of torture upon another during the course of the day, allowing the victim to recover consciousness between each assault, it would seem appropriate to [*622] permit separate convictions for the separate insults to the person of the victim.  As the Supreme Court of Connecticut observed in approving separate convictions for separate sexual assaults upon a single victim occurring[***16] during a brief period of time, "each assault upon the victim involved a separate act of will on the part of the defendant and a separate indignity upon the victim." State v. Frazier, 185 Conn. 211, 440 A.2d 916 (1981), cert. denied, 458 U.S. 1112, 102 S.Ct. 3496, 73 L.Ed.2d 1375 (1982).

   In the case before the Court, the State argues there were at least two separate acts or courses of conduct on the part of the defendant that were independently sufficient to 1) establish the threat of force necessary to satisfy that element of the robbery offense, and 2) establish the required elements of a separate battery. The first of these separate acts involve the defendant shooting Stamidis in the arm when Stamidis came to investigate the noise caused by the confrontation between the defendant and Bucklew.  Clearly, that shooting of Stamidis constituted a battery.

   The second course of conduct by the defendant, alleged by the State to constitute a separate assault fully capable of supplying the "threat of force" element of the robbery, was the holding of Stamidis at gun point while the defendant extracted information [***17] from him concerning the location of the money, marched him to the office, and then took the money.  This conduct constituted an assault sufficient to prove the threat of force required for the robbery conviction.  Had the shooting of Stamidis never occurred, the proof of robbery would still have been complete.  Thus, the State argues, the defendant's act of shooting Stamidis could have been completely disregarded by the trier of fact when the determination of the robbery charge was made, and under those circumstances the shooting was not a lesser included offense of the robbery, and was properly punished as a separate battery.

   I agree with the State that under the particular circumstances of this case the shooting of Stamidis could properly have been the subject of a separate conviction and sentence. [*623] I also agree, however, that the Court need not decide that issue, because the State is unable to demonstrate that the trier of fact, in this case the trial judge, did not rely upon the defendant's conduct in shooting Stamidis as evidence of the requisite force or threat of force in finding the defendant guilty of robbery. As noted above, the trial judge need not have relied[***18] upon that evidence.  If he believed that the defendant held Stamidis at gun point thereafter, that conduct alone would suffice to prove the "force" element of the robbery. But, in the absence of an [**1062]affirmative showing that this was the rationale employed by the trial judge, the Court cannot assume that it was.  Nightingale v. State, 312 Md. 699, 542 A.2d 373 (1988); State v. Frye, 283 Md. 709, 393 A.2d 1372 (1978). 

Stanley LYBA v. STATE of Maryland 
No. 48, September Term, 1990
 
Court of Appeals of Maryland
 
321 Md. 564; 583 A.2d 1033; 1991 Md. LEXIS 13

 January  10, 1991

   PRIOR HISTORY: [***1]  
 
Certiorari to Court of Special Appeals; Circuit Court for  Anne Arundel  County, Eugene M. Lerner, Judge.

DISPOSITION: JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED; CASE REMANDED TO THE COURT OF SPECIAL APPEALS WITH DIRECTION TO REVERSE THE JUDGMENTS OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AND TO REMAND THE CASE TO THAT COURT FOR A NEW TRIAL; COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID BY ANNE ARUNDEL COUNTY.

CORE TERMS:  cross-examination, sexual offense, assailant, encounter, credibility, assault, harassment, park, identification, narcotics, handgun, alcohol, memory, rape, sound discretion, probative value, intoxicated, contradict, balancing, unfair, inure, constitutionally required, defense counsel, second degree, cross-petition, believability, cross-examine, conditional, consecutive, testifying

COUNSEL: Gary S. Offutt, Asst. Public Defender (Stephen E. Harris, Public Defender, both on brief), Baltimore, for petitioner.

   Gwynn X. Kinsey, Jr., Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., both on brief), Baltimore, for respondent.

JUDGES: Murphy, C.J., and Eldridge, Rodowsky, McAuliffe and Chasanow, JJ. Robert L. Karwacki, * Judge, Specially Assigned, and Charles E. Orth, Jr., Associate Judge of the Court of Appeals (retired), Specially Assigned.

* At the time this case was heard and conferenced, Karwacki, J., a judge of the Court of Special Appeals of Maryland, was specially assigned to this Court. At the time of the decision and adoption of this opinion, he had been commissioned and had qualified as a judge of this Court.

OPINIONBY: ORTH, Jr.

 OPINION: [*566] [**1034] The fourteen[***2] count indictment returned by the Grand Jury for the State of Maryland, sitting in Anne Arundel County, against Stanley Lyba, ranged the gamut of sexual offenses.  The case went to the jury in the Circuit Court for Anne Arundel County on six of the charges: first degree rape (1st count); second degree rape (2nd count); first degree sexual offense (3rd count); second degree sexual offense (4th count); third degree sexual offense (5th count); and unnatural and perverted sexual practice (9th count), all in violation of the person of a young woman, 18 years of age. n1 The jury found Lyba guilty of each of those offenses.  The trial judge merged the conviction under the 2nd count into the conviction under the 1st count, and the convictions under the 4th and 9th counts into the conviction under the 3rd count.  He sentenced Lyba to life imprisonment on the 1st count, to 20 years on the 3rd count consecutive to the sentence on the 1st count, and to 5 years on the 5th count consecutive to the sentences on the 1st and 3rd counts.  [*567] Lyba appealed from the judgments.  The Court of Special Appeals affirmed.  Lyba v. State, No. 1050, September Term, 1989, filed 26 February 1990, unreported. [***3] We granted Lyba's petition for a writ of certiorari and the State's conditional cross-petition. The dispositive question presented to us concerns the trial judge's stricture of defense counsel's cross-examination of the victim.

n1 The charges of fourth degree sexual offense (6th count); assault with intent to rape (7th count); assault with intent to commit a sexual offense (8th count); use of a handgun in the commission of the felony of a first degree sexual offense (11th count); assault and battery (13th count); and assault (14th count) were abandoned by the State at the close of its case in chief.  Judgments of acquittal were granted as to the use of a handgun in the commission of first degree rape, a felony (10th count); and carrying a handgun (12th count).

   Lyba does not challenge the sufficiency of the evidence adduced by the State to establish the corpora delicti of the crimes of which he was convicted.  At trial, his defense centered on the identification of him as the criminal agent, and he claims on appeal[***4] that his defense was prejudicially hampered by the court's adverse rulings on objections during his cross-examination of the victim.  Proof of his criminal agency depended primarily upon her identification.

   The attack occurred on 12 September 1987 on a dark and rainy night.  The victim testified that she had left her abode and was combing the neighborhood to find her lost puppy when she was assaulted.  Upon threat of having her head blown off by a gun, she was forced to engage in vaginal intercourse, to perform fellatio, to be subjected to cunnilingus, and to suffer a general pawing and mauling of her body.  She promptly reported the crimes and provided police with a description of her assailant. It was not until some nine months later, however, that Lyba was arrested.  He was apprehended as a result of a chance encounter with the victim.  On 18 June 1988 she was riding in Patapsco State Park with her boyfriend and another acquaintance.  They stopped at a rest area and she saw her assailant in a nearby car.  There was mutual recognition.  The man made a veiled threat about having a gun and then said, to the effect (she could not remember the exact words), "It's amazing who you meet[***5] at State Parks." That evening she informed the police of this encounter. Several days later, from a photographic array, she identified Lyba as the man she saw in the car and as her assailant. Shortly thereafter Lyba was arrested.

   [*568] [**1035] At the trial the victim recounted in detail the circumstances of her attack and of her subsequent encounter with her assailant. She made a judicial identification of him.  On cross-examination defense counsel probed her testimony.  He elicited that when she gave a description of her assailant to the police shortly after the attack her "memory was probably fresh but [she] was very upset." Defense counsel asked if she was using "any medication" on the date of her attack and she replied: "No." Defense counsel then inquired: "How about narcotics?" The State objected and the court sustained the objection without comment.  Defense counsel did not pursue the subject but moved on to other matters, questioning her in greater detail about the attack and what she observed.  Later, when his examination reached the encounter in the park, he asked: "Had you anything to drink that day?" The State objected and the court sustained the objection, again without[***6] comment.  Defense counsel followed by inquiring: "What was your general condition [the day of the encounter in the park]?" She responded: "I don't know, what do you mean, condition?" Defense counsel did not press the issue but turned to another line of questioning.

   The rulings by the trial judge prompted the following question presented by Lyba in his petition for certiorari:
 
Did the trial court err when it refused to allow defense counsel to question the prosecutrix about whether she was using drugs or alcohol either at the time the offenses occurred or at the time she allegedly identified [Lyba]?
 
The State prefers to phrase it in simpler terms:
 
Did the trial court properly restrict Lyba's cross-examination of the victim?

   Over the years "there has evolved a standard analytical framework for Maryland courts to follow when confronted with [the issue of the restriction of cross-examination]." Smallwood v. State, 320 Md. 300, 306, 577 A.2d [*569] 356 (1990). We observed in State v. Cox, 298 Md. 173, 178, 468 A.2d 319 (1983):
 
[T]he trial of any case is a search for the truth.  The strength of each side [***7]of an issue rests upon the believability of the evidence offered as proof.  This evidence unfolds, in large measure, as testimony of the witnesses is produced at trial.  The tool available to each side to test the believability of the testimony is cross-examination.
 
It is well accepted that cross-examination may be used for impeachment purposes. Thomas v. State, 301 Md. 294, 308, 483 A.2d 6 (1984), cert. denied, 470 U.S. 1088, 105 S.Ct. 1856, 85 L.Ed.2d 153 (1985). See Williams v. Graf, 194 Md. 516, 522, 71 A.2d 450 (1950). We said in Cox, 298 Md. at 178, 468 A.2d 319:
 
This Court has recognized as a general rule that a witness may be cross-examined "on such matters and facts as are likely to affect his credibility, test his memory or knowledge, show his relation to the parties or cause, his bias, or the like." Kantor v. Ash, 215 Md. 285, 290, 137 A.2d 661 (1958).
 
Therefore,
 
it is proper to allow any question which reasonably tends to explain, contradict, or discredit any testimony given by the[***8] witness in chief, or which tends to test his accuracy, memory, veracity, character, or credibility. DeLilly v. State, 11 Md.App. 676, 681, 276 A.2d 417 (1971). Seemingly therefore, a witness may be questioned regarding whether he was sober, intoxicated, or under the influence of drugs at the time of the event in question.
 
Dove v. State, 33 Md.App. 601, 606, 365 A.2d 1009 (1976), rev'd on other grounds , 280 Md. 730, 371 A.2d 1104 (1977). Accord 2 C.E. Torcia, WHARTON'S CRIMINAL EVIDENCE § 424 and § 425 (14th ed. 1986).  See Anno. Use of Drugs as Affecting Competency or Credibility of Witness, 65 A.L.R.3d 92, §§ 1 et. seq. (1975).  In Matthews v. State, 68 Md.App. 282, 289, 511 A.2d 548 (1986), the Court of Special Appeals found it to be
 
[*570] axiomatic that evidence of a witness's intoxication at the time of the event about which he is testifying is admissible [**1036] for the purpose of impeaching his credibility.
 
The court pointed out:
 
It is common knowledge that the quantity of alcohol and/or drugs consumed [***9]will affect one's ability to see, to hear, and, generally, to perceive what is occurring.
 
Id.

   A party's privilege to cross-examine a witness as to whether he was intoxicated or under the influence of drugs at the time the incident about which he is testifying occurred is not without limits.  Generally,
 
"trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant."
 
Smallwood v. State, 320 Md. at 307, 577 A.2d 356, quoting Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 1435, 89 L.Ed.2d 674, 683 (1986). We warned in Smallwood, id., quoting Brown v. State, 74 Md.App. 414, 419, 538 A.2d 317 (1988), that
 
[l]imitation of cross-examination should not occur, however, until after the defendant has reached his "constitutionally required threshold level of inquiry."
 
"[W]ithin that limit a defendant[***10] should be free to cross-examine in order to elucidate, modify, explain, contradict, or rebut testimony given in chief." Smallwood, id., and cases therein cited.

    The trial judge plays a significant role with respect to the scope of inquiry on cross-examination inasmuch as the scope is within the judge's sound discretion. Robinson v. State, 298 Md. 193, 201, 468 A.2d 328 (1983). This discretion is exercised by balancing "the probative value of an inquiry against the unfair prejudice [or harassment] that might inure to the witness. Otherwise, the inquiry can [*571] reduce itself to a discussion of collateral matters which will obscure the issue and lead to the fact finder's confusion." Cox, 298 Md. at 178, 468 A.2d 319.

   It is clear that Lyba was entitled, on cross-examination of the victim, to ask whether she had ingested narcotics on the day of the assault and whether she had consumed alcohol on the day she saw Lyba in the park. Those questions went no further than calling for a "yes" or "no" answer.  The questions were within the constitutionally required level of inquiry, and, therefore, not subject to limitation. [***11] Thus, the questions were proper, and triggered no exercise of discretion on the part of the trial judge.

   If the answer to a question were "no" that would be an end to the inquiry on that subject unless Lyba was able to produce evidence, contrary to the denial, which was sufficient to support further inquiry.  Judicial discretion and the balancing procedure would come into play only upon further inquiry.

   If the answer to a question were "yes," the defense could follow up the admission by delving the degree of drug influence or alcohol intoxication so that the jury could decide the credibility of the victim and how much weight to give her testimony.  The propriety of the questions seeking to ascertain the degree to which narcotics or alcohol affected the victim would be subject to the sound discretion of the trial judge, who, in the exercise of that discretion, would be called upon to balance the probative value of the testimony sought against unfair prejudice or harassment which might inure to the victim.

   We hold that the trial court's restriction of Lyba's crossexamination of the victim constituted reversible error. n2 Lyba is entitled to a new trial.

n2 In light of our decision, we do not address the other questions presented by the petition for certiorari and the conditional cross-petition.

[***12]

   [*572] JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED;

   CASE REMANDED TO THE COURT OF SPECIAL APPEALS WITH DIRECTION TO REVERSE THE JUDGMENTS [**1037] OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AND TO REMAND THE CASE TO THAT COURT FOR A NEW TRIAL;

   COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID BY ANNE ARUNDEL COUNTY. 

STATE of Maryland v. Malcolm D. McCALLUM 
No. 4, September Term, 1990
 
Court of Appeals of Maryland
 
321 Md. 451; 583 A.2d 250; 1991 Md. LEXIS 1

 January  2, 1991

   SUBSEQUENT HISTORY: [***1]

   As Corrected January 4, 1991.

PRIOR HISTORY:  
 
Certiorari to Court of Special Appeals (Circuit Court for  Anne Arundel  County); Eugene M. Lerner, Judge.

DISPOSITION: JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED.  COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID BY ANNE ARUNDEL COUNTY.

CORE TERMS:  notice, suspension, suspended, driving, license, mens rea, fine, ignorance, mailed, deliberate, motor vehicle, driver, mail, deliberately, effective, actual notice, licensee, public welfare, notify, offense of driving, failure to pay, actual knowledge, avoidance, blindness, probable, willful, punish, criminal intent, instruct, drive

COUNSEL: Cathleen C. Brockmeyer, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on brief), Baltimore, for petitioner.

   Bradford C. Peabody, Asst. Public Defender (Alan H. Murrell, Public Defender, on brief), Baltimore, for respondent.

JUDGES: Murphy, C.J., and Eldridge, Rodowsky, McAuliffe and Chasanow, JJ. Chasanow, Judge, concurring.  Chief Judge Murphy joins in this opinion. McAuliffe, Judge, dissenting.

OPINIONBY: PER CURIAM

OPINION: [*452] [**250] On October 12, 1987 Respondent, Malcolm D. McCallum was involved in an automobile accident.  The accident was investigated by an officer of the Anne Arundel County Police Department who, after completing his investigation, charged McCallum with driving while suspended under Maryland Code (1984, 1987 Repl.Vol.), Transportation Article, § 16-303(c), as well as several other motor vehicle violations.  McCallum elected a jury trial and was ultimately convicted of the charged motor vehicle offenses. [***2] He was sentenced to one year incarceration with all but ninety days suspended for the driving while suspended conviction.  McCallum appealed his convictions to the Court of Special Appeals.  The intermediate appellate court reversed McCallum's conviction for driving while suspended, holding that the circuit court erred when it refused to give an instruction that scienter is an element of driving while suspended, and also erred in admitting into evidence McCallum's entire motor vehicle record.  McCallum v. State, 81 Md.App. 403, 567 A.2d 967 (1990). We granted the State's petition for certiorari to consider both of these issues. 

   The evidentiary issue arose when the State offered into evidence a certified copy of McCallum's driving record from the Motor Vehicle Administration (MVA). The apparent purpose of offering the record was to establish that McCallum's license was suspended, and that suspension letters were mailed (although the record does not reflect to what address the notices were sent).  The record was three pages [*453] long.  It contained entries stating that McCallum's license was suspended and that suspension letters had been mailed. [***3] It also contained a great deal of irrelevant information about prior suspensions and prior convictions for other motor vehicle offenses, [**251] including prior convictions for reckless driving and for driving while suspended.

   When McCallum's driving record was offered into evidence, defense counsel objected because some entries were highlighted with yellow markings.  The objection was overruled.  At the conclusion of the instructions and closing argument as the jury was ready to begin their deliberations, the court asked counsel to "check what's going into the jury room and make sure you're satisfied." At that time defense counsel again objected to the computer printout of McCallum's driving record because it "contains significant irrelevant information."

   The State contends that McCallum waived any relevancy objection because his only objection when the record was originally offered was based on the fact that some entries were highlighted.  Since we will be reversing the conviction and remanding for a new trial, we need not determine whether McCallum waived his relevancy objection.  Suffice it to say, if the State offers the record at any subsequent trial and there is an objection, the [***4] court should redact all portions of McCallum's motor vehicle record which are not relevant to the charge at issue.

   McCallum's motor vehicle record, which was introduced into evidence under the official record exception to the hearsay rule, contains the following entries that are relevant to the instant offense: On April 14, 1987, "fail to pay fine in district court -- suspension letter mailed"; a second entry shows that again on April 14, 1987, "fail to pay fine in district court -- suspension letter mailed"; on May 11, 1987, there were two entries of the suspensions for the two previous failures to pay fines in district court; then, on May 15, 1987, there is an entry of "district court fail to appear -- suspension letter mailed."

   [*454] McCallum's defense to the driving while suspended charge was that he had not received notice that his license was suspended. He testified that "I never received a suspension letter in the mail because I don't live at that address." McCallum indicated that, for several months during the period of time when the suspension letters were mailed, he was incarcerated on an unrelated charge.  When he got out of jail he discovered that he had been evicted [***5]and all of his mail had been destroyed by his landlord.  McCallum also testified that shortly before the instant offense he paid a $90.00 fine and was given a receipt by the district court clerk.  He testified that he was told by the clerk that when he brought the receipt to MVA he would be able to pick up his license. n1 Apparently his contention was that, since he had received no suspension notice and had paid at least one fine, he was unaware that his driving privileges were still suspended.

n1 It is unclear from the record if the Department of Motor Vehicles had possession of McCallum's driver's license, but there is some indication that it was taken from him by a police officer prior to the instant offense.  Later in his testimony, however, McCallum indicated that he did have his license, but that he had left it at home.

   McCallum's attorney requested the court to instruct the jury that criminal intent or mens rea is required for the offense of driving while suspended. The trial judge refused to give the instruction[***6] and opined that mens rea was not an element of the offense.  In his closing argument, the State's Attorney told the jury that "the reason the court did not instruct you as to intent is that intent is not required."

   The section under which McCallum was charged, Transportation Art., § 16-303(c), states: "A person may not drive a motor vehicle on any highway . . . while the person's license or privilege to drive is suspended in this State." n2 [*455] Violation of this subsection is punishable by imprisonment [**252]not to exceed one year and/or a fine not to exceed $1,000.00 for a first offense, and imprisonment not to exceed two years and/or a fine not to exceed $1,000.00 for subsequent offenders.  Md.Code (1984, 1987 Repl.Vol., 1990 Cum.Supp.), Transportation Art., § 27-101(h).

n2 Since we are going to reverse McCallum's conviction and remand the case to the trial court, we need not address the issue, but we should point out that if, as his motor vehicle record seems to indicate, McCallum's suspension was for failure to appear in response to a citation and for failure to pay fines in district court, the proper charge may have been under Maryland Code (1984, 1987 Repl.Vol., 1990 Cum.Supp.), Transportation Article, § 16-303(h), which prohibits driving while suspended for failure to appear in court or pay fines.

[***7]

   The intermediate appellate court held, and we agree, that mens rea is required for the offense of driving while suspended, and that the trial judge erred in failing to so instruct the jury.  We recognize that other states are divided on this issue.  In Zamarripa v. First Judicial Dist. Court, 103 Nev. 638, 747 P.2d 1386 (1987), the Nevada Supreme Court noted that:

   "There is a wide split of authority on the question whether driving with a suspended license requires proof of intent.  Oregon, Kansas, Ohio, [and] Nebraska . . ., for example, have held that no criminal intent is necessary for conviction of driving with a suspended license. [Citing in n. 3, Grogan v. State , 482 N.E.2d 300 (Ind.Ct.App.1985); n3 State v. Jones, 231 Kan. 366, 644 P.2d 464 (1982); State v. Grotzky, 222 Neb. 39, 382 N.W.2d 20 (1986); State v. Morrison, 2 Ohio App.3d 364, 442 N.E.2d 114 (1982); State v. Buttrey, 293 Or. 575, 651 P.2d 1075 (1982).] Arizona, Alaska, Colorado and North Carolina, on the other hand, have all held [***8] that criminal intent or knowledge is necessary for conviction.  [Citing in n. 4, Gregory v. State, 717 P.2d 428 (Alaska Ct.App.1986); State v. Jennings, 150 Ariz. 90, 722 P.2d 258 (1986); People v. Lesh, 668 P.2d 1362 (Colo.1983); State v. Finger, 72 N.C.App. 569, 324 S.E.2d 894 (1985).] California [*456] and Maine have statutes requiring knowledge of driving with a suspended license."
 
Id., 747 P.2d at 1388.

n3 Grogan has since been overruled by State v. Keihn, 542 N.E.2d 963 (Ind.1989); thus Indiana joins the ranks of states requiring mens rea for driving while suspended.

   Transportation Art., § 16-303 defines the offense of driving while suspended without specifying any culpable mental state as an element.  But as the Supreme Court cautioned, "Certainly far more than the simple omission of the appropriate phrase from the statutory definition is necessary[***9] to justify dispensing with an intent requirement." United States v. United States Gypsum Co., 438 U.S. 422, 438, 98 S.Ct. 2864, 2874, 57 L.Ed.2d 854, 870 (1978).

   In Dawkins v. State, 313 Md. 638, 547 A.2d 1041 (1988), this Court discussed the development of the "public welfare" statutory offenses which are punishable without proof of mens rea.  We noted that "the contemporary view . . . disfavors strict liability offenses." Id. at 650, 547 A.2d at 1047.

   In Dawkins, we identified some of the factors which would indicate that the Legislature intended to eliminate the requirement of mens rea and create a strict liability public welfare offense.  Those factors were: 1) "'Public welfare offenses' are generally regulatory in nature," and we noted that this could include some "traffic regulations and motor vehicle laws . . . ." Id. at 644, 547 A.2d at 1044. "[T]he purpose of the penalty is to regulate rather than to punish behavior." Id. at 645, 547 A.2d at 1044. 2) Public welfare offenses "commonly involve[***10] light fines or penalties," Id. at 644, 547 A.2d at 1044, and, quoting Sayre, Public Welfare Offenses, 33 Colum.L.Rev. 55, 70 (1933), "the penalty in such cases is so slight that the courts can afford to disregard the individual in protecting the social interest." 3) "While liability is imposed regardless of the defendant's state of mind, the defendant is generally in a position to prevent the violation from occurring." Dawkins, 313 Md. at 645, 547 A.2d at 1044.

   Analyzing the instant offense using the considerations set forth in Dawkins, we reach the conclusion that driving [*457] while suspended is not one of those "public welfare" offenses where the Legislature intended to eliminate the requirement of scienter.  We explain.

   The first consideration is whether the offense is "regulatory in nature." While we recognized that many motor vehicle laws are regulatory, the instant offense is [**253] both regulatory and punitive.  Some suspensions are for the purpose of at least temporarily taking unsafe or high risk drivers off the road; other suspensions are essentially punitive.  Their primary purpose [***11]is to punish a driver for failure to appear in court, failure to pay a fine, or failure to take a chemical test for intoxication.  The offense is not entirely regulatory in nature.

   The second consideration relates to the penalty.  The maximum penalty for driving while suspended is significant.  It carries a period of incarceration not to exceed one year, and a second offender can receive double the period of incarceration.  Both the nature of the penalty and the inclusion of an enhanced penalty for repeat offenders give some indication that the Legislature did not intend this to be a "public welfare" offense.

   Perhaps the most important consideration, clearly indicates that this is not a "public welfare" offense; namely, that "regardless of the defendant's state of mind, the defendant is generally in a position to prevent the violation from occurring." Dawkins, 313 Md. at 645, 547 A.2d at 1044. McCallum would have no reason to avoid driving and no reason to suspect that he was endangering the public by driving if he had no knowledge that his driving privileges were suspended.

   Weighing these considerations, we conclude that mens rea is required for [***12]the charge of driving while suspended, and the trial judge erred in failing to so instruct the jury.

   JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED.  COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID BY ANNE ARUNDEL COUNTY.

CONCURBY: CHASANOW

CONCUR: [*458] CHASANOW, Judge, concurring.

   I concur in the Per Curiam opinion of the Court, but, since the Court is reversing McCallum's conviction because the judge erroneously failed to instruct the jury that mens rea is necessary to convict for driving while suspended, I believe we should for the guidance of the trial court elaborate on the mens rea that would be necessary to convict.

   The Court of Special Appeals defined mens rea with a quote from Judge Learned Hand:
 
"Ordinarily one is not guilty of a crime unless he is aware of the existence of all those facts which make his conduct criminal.  That awareness is all that is meant by the mens rea, the 'criminal intent,' necessary to guilt, as distinct from the additional specific intent required in certain instances . . . and even this general intent is not always necessary."
 
McCallum v. State, 81 Md.App. 403, 410 n. 2, 567 A.2d 967, 970 n. 2 (1990), [***13]quoting Clark and Marshall, A Treatise on the Law of Crimes, § 5.01 at 268 (7th ed. 1967), in turn United States v. Crimmins, 123 F.2d 271, 272 (2nd Cir.1941). The mens rea that we are concerned with is "knowledge" rather than "intent." Unquestionably McCallum intended to drive. The issue is whether McCallum had "knowledge" that his driving privileges were suspended, and thus, his mental state must be assessed.

   There is more than one mental state that may constitute "knowledge." The first and highest form of "knowledge" is actual knowledge, that is, an actual awareness or an actual belief that a fact exists.  A second form of "knowledge" is what has often been called "deliberate ignorance" or "willful blindness." R. Perkins, Criminal Law, Ch. 7, § 4 at 687 (1957).  The latter form of "knowledge" exists where a person believes that it is probable that something is a fact, but deliberately shuts his or her eyes or avoids making reasonable inquiry with a conscious purpose to avoid learning the truth.  See 1 W. LaFave & A. Scott, Substantive Criminal Law, § 3.5 at 307 (1986), and authorities [*459]cited therein.  In United States v. Jewell, 532 F.2d 697[***14] (9th Cir.), cert. denied, 426 U.S. 951, 96 S.Ct. 3173, 49 L.Ed.2d 1188 (1976), the 9th Circuit Court of Appeals noted that the deliberate ignorance or willful blindness form of knowledge has been accepted by leading commentators in the United States and in England.  The opinion quoted from Professor Glanville Williams' Criminal Law: The [**254] General Part, § 57 at 157, 159 (2d ed. 1961), as follows:
 
"To the requirement of actual knowledge there is one strictly limited exception . . . .  [T]he rule is that if a party has his suspicion aroused but then deliberately omits to make further enquiries, because he wishes to remain in ignorance, he is deemed to have knowledge . . . .  The rule that wilful blindness is equivalent to knowledge is essential, and is found throughout the criminal law."
 
Id. at 700. The doctrine of "deliberate ignorance" or "willful blindness" has become well recognized in the federal courts and has been applied in a variety of criminal prosecutions.  For example, in U.S. v. Feroz, 848 F.2d 359 (2d Cir.1988) (per curiam), the defendant was charged with importing heroin [***15]into the United States.  The heroin was found in a secret compartment in an attache case that the defendant was carrying.  A deliberate ignorance instruction was proper when defendant claimed he was unaware of the contraband and that the attache case, which appeared to be empty, was given to him two hours before his flight.  In U.S. v. Hiland, 909 F.2d 1114 (8th Cir.1990), a deliberate ignorance instruction was proper in a prosecution for fraudulently marketing an unapproved and misbranded drug where two defendants took no action to investigate or consult the F.D.A. despite indications that the drug that they were marketing was dangerous; and in U.S. v. Picciandra, 788 F.2d 39 (1st Cir.), cert. denied, 479 U.S. 847, 107 S.Ct. 166, 93 L.Ed.2d 104 (1986), a deliberate ignorance instruction was proper where defendant, who was an attorney charged with aiding and abetting income tax evasion, received shopping bags full of cash from a co-defendant and claimed he relied on the representation that the cash was [*460] attributable to the sale of a schooner and was "legal." One author has pointed out that [***16] "the Courts of Appeals in all of the circuits have either expressed acceptance of the [deliberate ignorance] doctrine or adopted some form of deliberate ignorance instruction." Chesnut, United States v. Alvarado: Reflections on a Jewell, 19 Golden Gate U.L.Rev. 47, 56 (1989).

   The Court of Special Appeals recognized the principle behind deliberate ignorance in Greenway v. State, 8 Md.App. 194, 197, 259 A.2d 89, 92 (1969). Judge Orth writing for the intermediate appellate court stated that, "a person may be found to have knowledge under the recognized rule of law," if he "with an unlawful purpose in mind . . . deliberately 'shuts his eyes' to avoid knowing what would otherwise be obvious to view."

   Many states do not require mens rea to convict of driving while one's license is suspended. In states where mens rea is required, there are at least implications that the deliberate ignorance doctrine could be used to establish mens rea.  In Jeffcoat v. State, 639 P.2d 308 (Alaska Ct.App.1982), the Court of Appeals of Alaska held that the offense of driving while suspended required proof of mens rea.  The court implied[***17] that it might recognize deliberate ignorance as a form of knowledge when it stated:
 
"Obviously, the state need not affirmatively prove actual notice in each case. When evidence produced at trial indicates that the defendant had cause to believe that his license would be suspended, compliance by the state with [the notice requirement] may give rise to an inference that the defendant's failure to receive actual notice was the result of intentional or unreasonable conduct on his part which was calculated to avoid receipt of notice of his license suspension."
 
Id. at 313 n. 4. See also Alexander v. State, 712 P.2d 416 (Alaska Ct.App.1986). In City of Albuquerque v. Juarez, 93 N.M. 188, 598 P.2d 650 (1979), the Court of Appeals of New Mexico held that knowledge of suspension was required for a conviction of driving while suspended, but [*461] implied that showing willful or voluntary avoidance of notice would be sufficient.  The court stated: 
 
"[S]ome degree of wilful or voluntary avoidance of notice is necessary when notice has not been received . . . .

   The prosecution prevails on the notice issue [***18] when it shows (1) delivery and acknowledged [**255] receipt by the licensee; or (2) inability to notify because of voluntary avoidance by the licensee."
 
Id., 598 P.2d at 653. See also State v. Barber, 24 Conn.Supp. 346, 190 A.2d 497 (1962).

   Deliberate ignorance requires a conscious purpose to avoid enlightenment; a showing of mere negligence or mistake is not sufficient.  Also, "deliberate ignorance" is a form of knowledge, not a substitute for knowledge.  Therefore, if McCallum actually believed that his driver's license was not suspended, he could not be guilty of the offense.

   I believe McCallum would have the required mens rea in the instant case if he was deliberately ignorant of his suspension. Deliberate ignorance should be established if McCallum believed it was probable that his license was suspended and if he deliberately avoided contact with the MVA to evade notice. For example, the trier of fact could find that: 1) based on his failure to pay district court fines and failure to appear in court, McCallum knew that it was probable that his license was suspended; 2) McCallum failed to fulfill his obligation[***19] to keep MVA apprised of his current address, n1 or that he failed to contact MVA after learning that for several months his mail was destroyed, and 3) McCallum deliberately avoided contact with MVA to avoid receiving notice of the suspension of his driver's license. These findings should justify a conclusion that McCallum's intentional avoidance of notice of his suspension satisfied the mens rea requirement and was the equivalent of actual knowledge of his suspension.

n1 Md.Code (1984, 1987 Repl.Vol., 1990 Cum.Supp.), Transportation Article, § 16-116(a) requires a licensed driver to notify the MVA within thirty days of moving from the address shown on the license.

DISSENTBY: McAULIFFE

DISSENT: [*462] McAULIFFE, Judge, dissenting.

   I do not agree that actual knowledge of suspension is a required element of the offense of driving a motor vehicle while suspended. As I see it, the intentional driving of a motor vehicle on a highway or other property specified by the statute, at a time when the driver's license or privilege has been [***20]suspended in accordance with law, is all that need be shown.  The concept of basic fairness to the defendant, which underlies the court's discussion of mens rea, has been addressed by the General Assembly in its careful structuring of the steps that must be taken before a suspension can become effective, and in the guarantee of legally adequate constructive notice that is inherent in the statutory procedure.

   This defendant's driving privileges were suspended in April and May of 1987 because of his failure to pay two different fines imposed by the District Court of Maryland, and his failure to appear in that court on a third charge.  Section 27-103 of the Transportation Article, Maryland Code (1977, 1987 Repl.Vol.) provides, in pertinent part:

   (a) In general.  -- If a person fined under the Maryland Vehicle Law or under any federal traffic law or regulation for a violation occurring in Maryland does not pay the fine in accordance with the court's directive:

   (1) The court may so certify to the Administration; and

   (2) On such certification, after giving the person 10 days advance written notice, the Administration may suspend the driving privileges or license of the person [***21] until the fine has been paid.
 
Section 26-204, dealing with the requirement that a person appear in court in response to a traffic citation, provides:

   (a) Compliance required.  -- A person shall comply with the notice to appear contained in a traffic citation issued to the person under this subtitle.

   * * *

   [*463] (d) Suspension of driving privileges.  -- On receipt of a notice of noncompliance from the District Court, the Administration shall notify the person that the person's driving privileges shall be suspended unless, by the end of the 15th day [**256] after the date on which the notice is mailed, the person:

   (1) Pays the fine on the original charge as provided for in the original citations; or

   (2) Posts bond or a penalty deposit and requests a new trial date.

   (e) Failure to comply with subsection (d).  -- If a person fails to pay the fine or post the bond or penalty deposit under subsection (d) of this section, the Administration may suspend the driving privileges of the person.
 
Section 12-114, which deals with the method of giving notice, provides:

   (a) Manner of notice.  -- Unless another method for giving notice is specifically required, the Administration[***22] shall give any notice that it is required or authorized to give under the Maryland Vehicle Law or any other law, either:

   (1) By personal delivery to the person to be notified; or

   (2) By mail to the person at the address of the person on record with the Administration.

   (b) When mailed notice effective.  -- If notice is given by mail, the notice is effective at the end of the fifth day after its deposit in the mail.

   (c) Proof of notice.  -- Proof that notice has been given may be made by the certificate of any officer or employee of the Administration or the affidavit of any adult, naming the person to whom the notice was given and stating the time, place, and manner of giving the notice.
 
Section 16-116(a) imposes upon every licensed driver the obligation to maintain a current address of record with the Motor Vehicle Administration (MVA).  That section provides:

   [*464] (a) Notice required.  -- If any individual who has applied for or obtained a driver's license under this subtitle moves from the address given in the application or shown on the license, the individual shall, within 30 days of the change, notify the Administration in writing of the former address [***23]and new address and the identifying number of any license issued to the individual.

   The defendant's MVA record discloses that on 14 April 1987, the MVA mailed two notices of suspension to him, for his failure to pay two fines. On 15 May 1987, the MVA mailed an additional notice of suspension to him for his failure to appear in the District Court of Maryland, and entered his suspension for failure to take action following the first notices.

   The defendant does not contend that these letters were not mailed, or were not received at his address of record.  He defends on the ground that he was not then residing at his address of record.  Explaining that he was at the time incarcerated on unrelated charges, the defendant testified that "I never received a suspension letter in the mail because I don't live at that address." In my opinion, even if believed, that explanation does not constitute a defense. 

   It would be a sad state of affairs if a suspension of driving privileges could not be made effective until the State had given actual notice of the suspension to the defendant.  Irresponsibility, failure to obey the law regarding notification of change of address, and a nomadic lifestyle[***24] would be rewarded.  Only those who were conscientious in attending to their affairs would be affected by suspensions. The legislature has required that the MVA follow procedures which are reasonably calculated to give actual notice of suspension to licensees. It has specifically delayed the effective date of suspension in cases of this kind, to reasonably ensure that the licensee receives notice and has an opportunity to correct any oversight.  This is a reasonable, and in my judgment lawful, compromise between the Utopian desire for actual notice in every case, [*465] and the practical realization that requiring such notice is unworkable.

   In Ford v. State, 85 Md. 465, 37 A. 172 (1897), this Court upheld a statute making possession of lottery or policy slips a crime, rejecting a claim that the State could not constitutionally punish an unknowing or unintentional possession.  The Court noted [**257] that "the statute has made the mere possession of the articles a crime because that is the most effectual way to break up the lottery business." Id. at 480, 37 A. 172. The Court also noted the very practical problems inherent[***25] in making guilty knowledge or intent an element of the crime:
 
But if after a person has undoubtedly gotten into his possession one of the prohibited articles he is to be permitted, notwithstanding the language of the statute, to prove that he found it, or did not know what it was, it will make the statute practically useless, for if he swears that such was the case it will generally be impossible for the state to prove the contrary, and will be a great temptation to perjury, not only to the accused, but to others who might come to his assistance.
 
Id. at 477, 37 A. 172. Moreover, said the Court, in those rare cases where the judge is convinced that a person entirely free of any criminal knowledge, intent, or purpose was caught in the web of a necessarily broad statute, the judge could impose a nominal sanction. n1 Id. at 477-78, 37 A. 172. Although this State's policy with respect to lottery tickets has undergone a major revision since 1897, the rationale of Ford continues to be valid.

 n1 Today, a trial judge enjoys expanded powers of disposition, and in an appropriate case may grant probation without judgment.  Maryland Code (1957, 1987 Repl.Vol., 1990 Cum.Supp.) Art. 27 § 641.

[***26]

   The entries on the official MVA record of "suspension letter mailed" were sufficient to show that notices of suspension were mailed to the defendant on the dates stated.  There is a rebuttable presumption that public officers properly perform their duties, Lerch v. Md. Port Authority, 240 Md. 438, 457, [*466]214 A.2d 761 (1965), and that presumption is sufficient to support a finding that the notices of suspension were properly addressed, stamped, and mailed. There is an additional rebuttable presumption that a letter properly addressed, stamped, and mailed reached its destination at the regular time. Border v. Grooms, 267 Md. 100, 104, 297 A.2d 81 (1972); Kolker v. Biggs, 203 Md. 137, 144, 99 A.2d 743 (1953). These are evidentiary rebuttable presumptions, well grounded in fact and human experience.  The presumptions, although they may assist in proving necessary facts, do not relieve the State of proving an element of the offense, and therefore do not run afoul of Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975). [***27] Thus, by the entries on the MVA record, there was sufficient proof, in the absence of evidence to the contrary, that the notices were mailed to the defendant on the dates stated, at his address of record, and were received at that address. n2

n2 Section 12-114(c), providing that proof of notice may be given by a certificate of any officer or employee of MVA, supplements but does not supplant the presumptions that arise from the official entry in the MVA record.  The entry gives rise only to a presumption -- the certificate contemplated by § 12-114(c) would provide actual proof, just as if a representative of the MVA had appeared and testified to those facts.

   A person in the position of this defendant may, of course, offer evidence to rebut the presumptions.  There may be proof, for example, that a copy of the notice letter retained in the files of the MVA shows that the original was mis-addressed.  Or, a defendant might offer testimony which, if believed, would prove that the notice letter was never received at the [***28] address of record.  Because the obvious legislative intent is to have the suspension become effective within a specified time after actual delivery at the address of record, proof that the notice was not received at that address would constitute a defense.

   Although the burden of persuasion never shifts from the State, the presumptions fulfill the State's burden of coming [*467] forward with evidence to show delivery, and thus to show an effective suspension. Once that has been accomplished, the defendant has the burden of coming forward with evidence to meet the presumptions.  In this case, the defendant offered no such proof.  He did not contend the notices had not been received at his address of record.  He simply said he did not receive the notices because he was not there. Because the State did not have to show actual receipt [**258] by him of the notices, this was no defense.

   The statutory scheme, as I interpret it, does place upon all licensees the duty to keep the MVA advised of their address of record, and to make such arrangements as might be required from time to time to ensure that they timely receive mail sent to them at that address.  But this is not an unreasonable burden, [***29] and it is one that the law imposes in other situations. n3 The legislature might have required, as it has in other situations, that notice be sent by certified mail, return receipt requested, but it was under no obligation to do so.  Indeed, in dealing with certain types of persons, first class mail may be more likely to achieve actual notice than certified mail.

n3 For example, a party to court proceedings is required to keep the court and other parties advised of that party's current address.  Maryland Rules 1-311(a) and 1-321(a).  Service of most pleadings may be made by mailing the pleading to the address last given by a party, and unless that party takes appropriate action, default may ensue or a bench warrant may issue.

   As I read the Court's opinion, a licensee who gives the MVA a fictitious address, or who refuses to notify the MVA of a change of address, and therefore does not receive notice of suspension, may continue to drive through any period of suspension entered pursuant to § 26-204 or § 27-103 without[***30] fear of conviction if caught.  The approach suggested by Judge Chasanow in his concurring opinion would not necessarily change that result, because the State would still have to prove that the defendant believed it was probable that his license was suspended and that he deliberately avoided contact with the MVA to evade [*468] notice of that fact.  I would follow the apparent legislative intent to have the suspension become effective at the expiration of the stated time following receipt of the notice at the address of record, and to punish those who thereafter drive during the period of that suspension.

   The MVA record should not have been admitted in its entirety.  However, the defendant's objection was inadequate to preserve that question for appellate review.  Defendant's counsel objected only to the fact that certain portions of the record had been "highlighted," and this problem was corrected before the exhibit was given to the jury.  Moreover, even if defense counsel's later comments were to be taken as a timely objection, the error in admitting the entire record was harmless.  The defendant did not deny that notices of suspension were received at his address of record, or[***31] that he was driving the automobile during the period of suspension. Thus, there was no genuine issue of fact placing the defendant's credibility before the jury, and consequently no possibility that the defendant was adversely affected by the improper admission of the extraneous portion of the record.

   I would reverse the judgment of the Court of Special Appeals and direct that the judgment of the Circuit Court for Anne Arundel County be affirmed. 

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